Senate Bill No. 652
(By Senators Plymale, Fanning, Jackson, Walker, McCabe, Edgell
and Sprouse)
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[Originating in the Committee on Pensions;
reported February 24, 2000.]
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A BILL to amend and reenact sections three-a, thirteen, fifteen,
twenty-one, forty-two and forty-six, article ten, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to further amend said article by
adding thereto four new sections, designated sections twenty-
seven-a, twenty-seven-b, twenty-seven-c and fifty-five; to
amend and reenact sections two, two-a, three, four, five,
nine, thirteen, twenty-three, twenty-five and twenty-seven,
article fourteen-d, chapter seven of said code; to further
amend said article by adding thereto four new sections,
designated sections nine-a, nine-b, nine-c and thirty-one; to amend and reenact sections twenty-six, twenty-seven, twenty-
eight, twenty-nine and thirty-five, article two, chapter
fifteen of said code; to further amend said article by adding
thereto six new sections, designated sections forty, forty-
one, forty-two, forty-three, forty-four and forty-five; to
amend and reenact sections two, three, five, fifteen and
nineteen, article two-a of said chapter; to further amend said
article by adding thereto five new sections, designated
sections four-a, six-a, six-b, six-c and twenty; to amend
article seven-a, chapter eighteen of said code by adding
thereto five new sections, designated sections three-a,
twenty-eight-a, twenty-eight-b, twenty-eight-c and thirty-
seven;
to amend and reenact sections eleven, thirteen,
seventeen, thirty and thirty-four of said article; to amend
and reenact sections two, four, seven, twelve, thirteen and
eighteen, article seven-b of said chapter; to further amend
said article by adding thereto four new sections, designated
sections eight-a, twelve-a, thirteen-b and nineteen; to amend
and reenact sections one-a, three, four, six, six-a and
fourteen, article nine, chapter fifty-one of said code; and to
further amend said article by adding thereto five new
sections, designated sections three-a, twelve-a, twelve-b, twelve-c and seventeen, all relating generally to compliance
of the public employees retirement system, deputy sheriff
retirement plan, state police death, disability and retirement
fund, state police retirement system, state teachers
retirement system, teachers defined contribution retirement
system and retirement system for judges of courts of record
with the federal tax law qualification requirements of Section
401(a) and related sections of the Internal Revenue Code of
1986 as applicable to governmental plans; definition of leased
employees and clarification of ineligibility of leased
employees to participate in these retirement systems;
requirements relating to retirement plan loans for members in
the deputy sheriff retirement plan and state teachers
retirement system and provisions for the administration of
those loans by the consolidated public retirement board;
making technical corrections; and conforming reenacted
sections to existing law.
Be it enacted by the Legislature of West Virginia:
That sections three-a, thirteen, fifteen, twenty-one, forty-
two and forty-six, article ten, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that said article be further amended by adding thereto four new sections, designated sections twenty-seven-
a, twenty-seven-b, twenty-seven-c and fifty-five; that sections
two, two-a, three, four, five, nine, thirteen, twenty-three,
twenty-five and twenty-seven, article fourteen-d, chapter seven of
said code be amended and reenacted; that said article be further
amended by adding thereto four new sections, designated sections
nine-a, nine-b, nine-c and thirty-one; that sections twenty-six,
twenty-seven, twenty-eight, twenty-nine and thirty-five, article
two, chapter fifteen of said code be amended and reenacted; that
said article be further amended by adding thereto six new sections,
designated sections forty, forty-one, forty-two, forty-three,
forty-four and forty-five; that sections two, three, five, fifteen
and nineteen, article two-a of said chapter be amended and
reenacted; that said article be further amended by adding thereto
five new sections, designated sections four-a, six-a, six-b, six-c
and twenty; that article seven-a, chapter eighteen of said code be
amended by adding thereto five new sections, designated sections
three-a, twenty-eight-a, twenty-eight-b, twenty-eight-c and thirty-
seven;
that sections eleven, thirteen, seventeen, thirty and
thirty-four of said article be amended and reenacted; that sections
two, four, seven, twelve, thirteen and eighteen, article seven-b of
said chapter be amended and reenacted; that said article be further amended by adding thereto four new sections, designated sections
eight-a, twelve-a, thirteen-b and nineteen; that sections one-a,
three, four, six, six-a and fourteen, article nine, chapter fifty-
one of said code be amended and reenacted; and that said article be
further amended by adding thereto five new sections, designated
sections three-a, twelve-a, twelve-b, twelve-c and seventeen, 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 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-3a. Article to be liberally construed; supplements federal
social security; federal qualification requirements.
(a) The provisions of this article shall be liberally
construed so as to provide a general retirement system for the
employees of the state herein made eligible for such retirement:
Provided, That nothing in this article shall be construed as
permitting any governmental unit, its officers or employees to
substitute the retirement plan herein authorized for federal social
security now in force in West Virginia.
(b) The purpose of this article is to provide a state pension
plan which supplements the federal social security pension plan now in force and heretofore authorized by law for all officers and
employees of the state members of this retirement system.
(c) The retirement system is intended to meet the federal
qualification requirements of section 401(a) and related sections
of the Internal Revenue Code as applicable to governmental plans.
Notwithstanding any other provision of state law, the board shall
administer the retirement system to fulfill this intent for the
exclusive benefit of the members and their beneficiaries. Any
provision of this article referencing or relating to such federal
tax qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend
or repeal conflicting rules in accordance with the authority
granted to it pursuant to section one, article ten-d of this
chapter to assure compliance with this section.
§5-10-13. Actuarial investigations and valuations; specification of
actuarial assumptions.
(a) The board of trustees shall keep, or cause to be kept,
such data as shall be necessary for the preparation of mortality,
service and retirement tables, and for the compilation of such
other data as shall be required for an actuarial valuation of the
assets and liabilities of the retirement system.
(b) Beginning in one thousand nine hundred sixty-six, and in
each five-year period thereafter, the actuary shall make actuarial
investigations into the experiences of the members, retirants and
beneficiaries of the retirement system. Based upon such
investigations the board of trustees shall adopt for the system
rates of mortality, withdrawal from service, superannuation
retirement and disability retirement, and salary scales for final
average salary.
(c) Beginning in one thousand nine hundred sixty-two, and at
least once in each three-year period thereafter, the actuary shall
make an actuarial valuation of the assets and liabilities of the
retirement system: Provided, That until the first actuarial
investigations are made, the valuations shall be based upon
decrement assumptions which are, in the opinion of the actuary,
applicable to the members, retirants and beneficiaries of the
system.
(d) Beginning in one thousand nine hundred sixty-two, the
actuary shall annually compute the annuity reserve liabilities for
annuities being paid retirants and beneficiaries.
(e) The board shall specify and adopt all actuarial
assumptions for the system at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions
shall become part of the terms of the system.
§5-10-15. Military service credit; qualified military service.
(a) Any member of the retirement system who entered or enters
the active service of the armed forces of the United States during
any period of compulsory military service shall receive credited
service for said time spent in the armed forces of the United
States, not to exceed five years if such member pays to the
members' deposit fund the amount he or she may have withdrawn
therefrom, together with regular interest from the date of
withdrawal to the date of repayment. In any case of doubt as to
the period of service to be so credited a member, the board of
trustees shall have final power to determine such period. During
the period of such armed service and until his or her return to the
employ of a participating public employer, his or her contributions
to the retirement system shall be suspended and any balance
remaining to his or her credit in the members' deposit fund shall
be accumulated at regular interest.
(b) 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. 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 chapter five,
may promulgate rules relating to contributions, benefits and
service credit to comply with section 414(u) of the Internal
Revenue Code.
§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 attainment of 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 the said that section was in force as of the date
of his or her said 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. His
or her said 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
attainment of 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, and pursuant to regulations 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 shall mean 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 the said 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 such member he or she is at least fifty-five years of age and
the sum of his or her or her age plus years of contributing service
equals or exceeds eighty.
§5-10-27a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of section 415 of the Internal Revenue Code
and regulations promulgated thereunder to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this system shall exceed those limitations. The extent to
which any annuity or other benefit payable under this retirement
system shall be reduced as compared to the extent to which an
annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under section 415 of the Internal Revenue Code
shall be reduced shall be determined by the board in a manner that
shall maximize the aggregate benefits payable to the member. If
the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§5-10-27b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this code. This provision applies to
plan years beginning after the thirty-first day of December, one
thousand nine hundred eighty-six. Notwithstanding anything in this code to the contrary, the payment of benefits under this article
shall be determined and made in accordance with section 401(a)(9)
of the Internal Revenue Code and the federal regulations
promulgated thereunder. For this purpose, the following provisions
apply:
(a) The payment of benefits under the retirement system to
any member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
regulations prescribed under section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
or her beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her or her
entire interest in the retirement system has been distributed, then
the remaining portion of that interest shall be distributed at
least as rapidly as under the method of distribution being used at
the date of his or her or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her or her entire interest in the retirement system will be distributed by the thirty-first day of December of
the calendar year containing the fifth anniversary of the member's
death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of that
beneficiary, commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died; or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§5-10-27c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nineteen hundred ninety three.
Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this system,
a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions apply:
(1) "Eligible rollover distribution" means any distribution
of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not
include any of the following: (i) Any distribution that is one of
a series of substantially equal periodic payments not less
frequently than annually made for the life or life expectancy of
the distributee or the joint lives or the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution
to the extent such distribution is required under section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; (iv) any hardship distribution described in
section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other distribution or distributions reasonably expected to
total less than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code or a qualified plan described in
section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in
the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the retirement
system to an eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other system administered by the
retirement board.
§5-10-42. Fiscal or plan year of retirement system.
The fiscal or plan year of the retirement system shall
coincide with the fiscal year of the state.
§5-10-46. Right to benefits not subject to execution, etc.;
assignments prohibited; deductions for group insurance;
setoffs for fraud; exception for certain domestic relations
orders.
The right of a person to any benefit provided for in this
article shall not be subject to execution, attachment, garnishment,
the operation of bankruptcy or insolvency laws, or other process
whatsoever, nor shall any assignment thereof be enforceable in any
court except that the benefits or contributions under this system
shall be subject to "qualified domestic relations orders" as that
term is defined in section 414(p) of the Internal Revenue Code as
applicable to governmental plans: Provided, That should a member
be covered by a group insurance or prepayment plan participated in
by a participating public employer, and should he or she be
permitted to, and elect to, continue such coverage as a retirant,
he or she may authorize the board of trustees to have deducted from his or her annuity the payments required of him or her to continue
coverage under such group insurance or prepayment plan: Provided,
further however, That a participating public employer shall have
the right of setoff for any claim arising from embezzlement by, or
fraud of, a member, retirant or beneficiary.
§5-10-55. Benefits not to be forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-2. Definitions.
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
one-quarter percent of the member's final average salary multiplied
by the member's years of credited service. A 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.
(b) "Accumulated contributions" means the sum of all amounts
deducted from the compensation of a member, or paid on his or her
behalf pursuant to article ten-c, chapter five of this code, either
pursuant to section seven of this article or section twenty-nine,
article ten, chapter five of this code 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 the consolidated public retirement board may adopt from time to
time 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 fifty 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.
(h) "Base salary" means a member's cash compensation exclusive
of overtime from covered employment during the last twelve months
of employment. Until a member has worked twelve months, annualized
base salary is used as base salary.
(i) "Board" means the consolidated public retirement board
created pursuant to article ten-d, chapter five of this code.
(j) "County commission" has the meaning ascribed to it in
section one, article one, chapter seven of this code.
(k) "Covered employment" means either: (1) Employment as a
deputy sheriff and the active performance of the duties required of a deputy sheriff; or (2) the period of time which active duties are
not performed but disability benefits are received under section
thirteen or fourteen of this article; or (3) concurrent employment
by a deputy sheriff in a job or jobs in addition to his or her
employment as a deputy sheriff where such secondary employment
requires the deputy sheriff to be a member of another retirement
system which is administered by the consolidated public retirement
board pursuant to article ten-d of chapter five of this code:
Provided, That the deputy sheriff contribute to the fund created in
section six of this article the amount specified as the deputy
sheriff's contribution in section seven of this article.
(l) "Credited service" means the sum of a member's years of
service, active military duty, disability service and annual leave
service.
(m) "Deputy sheriff" means an individual employed as a county
law-enforcement deputy sheriff in this state and as defined by
section two, article fourteen, chapter seven of this code.
(n) "Dependent child" means either:
(1) An unmarried person under age eighteen who is: either
(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 subdivision.
(o) "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.
(p) "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 section thirteen
or fourteen or fifteen of this article.
(q) "Early retirement age" means age forty or over and
completion of twenty years of service.
(r) "Effective date" means the first day of July, one thousand
nine hundred ninety-eight.
(s) "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. 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 section thirteen or fourteen or fifteen
of 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
twelve.
(t) "Fund" means the West Virginia deputy sheriff retirement
fund created pursuant to section six of this article.
(u) "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 department of labor regulations. A member will not be
credited with any hours of service for any period of time he or she
or she is receiving benefits under section fourteen or fifteen of
this article; and
(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.
(v) "Member" means a person first hired as a deputy sheriff
after the effective date of this article, as defined in subsection
(r) of this section, or a deputy sheriff first hired prior to the
effective date and who elects to become a member pursuant to
section five or section seventeen of 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.
(w) "Monthly salary" means the portion of a member's annual
compensation which is paid to him or her per month.
(x) "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.
(y) "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 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 five years of service; or
(4) Attainment of age sixty-two years and completion of five
or more years of service.
(z) "Partially disabled" means a member's inability to engage
in the duties of deputy sheriff 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.
(aa) "Public employees retirement system" means the West
Virginia public employee's retirement system created by article
ten, chapter five of this code.
(bb) "Plan" means the West Virginia deputy sheriff death,
disability and retirement plan established by this article.
(cc) "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. of any designated year.
(dd) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board shall from time to
time adopt adopts in accordance with the provisions of this
article.
(ee) "Retirement income payments" means the annual retirement
income payments payable under the plan.
(ff) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(gg) "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.
(hh) "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 a deputy
sheriff 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.
(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.
A member's receipt of social security disability benefits
creates a rebuttable presumption that the member is totally
disabled for purposes of this plan. Substantial gainful employment
rebuts the presumption of total disability.
(ii) "Year of service". 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
Less than 500 .................... 0
500 to 999 ......................... 1/3
1,000 to 1,499 ................... 2/3
1,500 or more .................... 1
During a member's first and last years of covered employment,
the member shall be credited with one twelfth of a year of service
for each month during the plan year in which the member is credited
with an hour of service. A member is not entitled to credit for
years of service for any time period during which he or she or she
received disability payments under section fourteen or fifteen of
this article. Except as specifically excluded, years of service
include covered employment prior to the effective date.
Years of service which are credited to a member prior to his
or her or her receipt of accumulated contributions upon termination
of employment pursuant to section thirteen of this article or
section thirty, article ten, chapter five of this code, shall be
disregarded for all purposes under this plan unless the member
repays the accumulated contributions with interest pursuant to
section twelve of this article or had prior to the effective date
made the repayment pursuant to section eighteen, article ten,
chapter five of this code.
(jj) "Required beginning date" means the first day of April of
the calendar year following the later of: (i) The calendar year in which the member attains age seventy and one-half; or (ii) the
calendar year in which he or she or she retires or otherwise
separates from covered employment.
§7-14D-2a. Meaning of terms.
Any term used in this article shall have the same meaning as
when used in a comparable context in the laws of the United States,
unless a different meaning is clearly required. Any reference in
this article to the Internal Revenue Code includes all amendments
made to the laws of the United States after the thirty-first day of
December, one thousand nine hundred ninety-five, but prior to the
first day of January, one thousand nine hundred ninety-eight, but
no amendment to the laws of the United States made on or after the
first day of January, one thousand nine hundred ninety-eight, shall
be given any effect. means the Internal Revenue Code of 1986, as
amended.
§7-14D-3. Creation and administration of West Virginia deputy
sheriff's retirement system; specification of actuarial
assumptions.
There is hereby created the West Virginia deputy sheriff's
retirement system. The purpose of this system is to provide for the
orderly retirement of deputy sheriffs who become superannuated
because of age or permanent disability and to provide certain survivor death benefits. The retirement system constitutes a body
corporate. All business of the system shall be transacted in the
name of the West Virginia deputy sheriff's retirement system. The
board shall specify and adopt all actuarial assumptions for the
plan at its first meeting of every calendar year or as soon
thereafter as may be practicable, which assumptions shall become
part of the plan.
§7-14D-4. Article to be liberally construed; supplements federal
social security; federal qualification requirements.
(a) The provisions of this article shall be liberally
construed so as to provide a general retirement system for deputy
sheriffs eligible to retire under the provisions of this plan.
Nothing in this article may be construed to permit a county to
substitute this plan for federal social security now in force in
West Virginia.
(b) The board shall administer the plan in accordance with
its terms and may construe the terms and determine all questions
arising in connection with the administration, interpretation and
application of the plan. The board may sue and be sued, contract
and be contracted with and conduct all the business of the system
in the name of the plan. The board may employ those persons it
considers necessary or desirable to administer the plan. The board shall administer the plan for the exclusive benefit of the members
and their beneficiaries subject to the specific provisions of the
plan. This plan and the moneys held in trust under the plan
constitute a qualified trust under section 401 of the Internal
Revenue Code and shall be administered and construed as a qualified
trust.
(c) The plan is intended to meet the federal qualification
requirements of section 401(a) and related sections of the Internal
Revenue Code as applicable to governmental plans. Notwithstanding
any other provision of state law, the board shall administer the
plan to fulfill this intent for the exclusive benefit of the
members and their beneficiaries. Any provision of this article
referencing or relating to these federal qualification requirements
shall be effective as of the date required by federal law. The
board may promulgate rules and amend or repeal conflicting rules in
accordance with the authority granted to the board pursuant to
section one, article ten-d of chapter five to assure compliance
with the requirements of this section.
§7-14D-5. Members
.
(a) Any deputy sheriff first employed by a county in covered
employment after the effective date of this article shall be a
member of this retirement system and plan and does not qualify for membership in any other retirement system administered by the
board, so long as he or she remains employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the
effective date of this article shall within six months of that
effective date notify in writing both the county commission in the
county in which he or she is employed and the board of his or her
desire to become a member of the plan: Provided, That this time
period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
supreme court of appeals in West Virginia Deputy Sheriffs'
Association, et al v. James L. Simms Sims, et al, No. 25212:
Provided, however, That any deputy sheriff employed in covered
employment on the effective date of this article has an additional
time period consisting of the ten-day period following the day
after which the amended provisions of this section become law to
notify in writing both the county commission in the county in which
he or she is employed and the board of his or her desire to become
a member of the plan. Any deputy sheriff who elects to become a
member of the plan ceases to be a member or have any credit for
covered employment in any other retirement system administered by
the board and shall continue to be ineligible for membership in any other retirement system administered by the board so long as the
deputy sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the
time period from July one, one thousand nine hundred ninety-eight,
to January thirtieth, one thousand nine hundred ninety-nine, or who
so elects during the ten-day time period occurring immediately
following the day after the day the amendments made during the one
thousand nine hundred ninety-nine legislative session become law,
to transfer from the public employees retirement system to the plan
created in this article shall contribute to the plan created in
this article at the rate set forth in section seven of this of this
article retroactive to the first day of July, one thousand nine
hundred ninety-eight. Any deputy sheriff who does not affirmatively
elect to become a member of the plan continues to be eligible for
any other retirement system as is from time to time offered to
other county employees but is ineligible for this plan regardless
of any subsequent termination of employment and rehire.
(c) Any deputy sheriff who was employed as a deputy sheriff
prior to the effective date, but was not employed on the effective
date of this article, shall become a member upon rehire as a deputy
sheriff. For purposes of this section, the member's years of
service and credited service prior to the effective date shall not be counted for any purposes under this plan unless: (1) The deputy
sheriff has not received the return of his or her or her
accumulated contributions in the public employees retirement fund
system pursuant to section thirty, article ten, chapter five of
this code; or (2) the accumulated contributions returned to the
member from the public employees retirement system have been repaid
pursuant to section twelve of this article. If the conditions of
subdivision (1) or (2) of this subsection are met, all years of the
deputy sheriff's covered employment shall be counted as years of
service for the purposes of this article. Each transferring deputy
sheriff shall be given credited service for the purposes of this
article for all covered employment transferred from the public
employees retirement system regardless of whether such credited
service (as that term is defined in section two, article ten,
chapter five of this code) was earned as a deputy sheriff. All
service in the public employees retirement system accrued by a
transferring deputy sheriff shall be transferred into the plan
created by this article and the transferring deputy sheriff shall
be given the same credit for the purposes of this article for all
such covered service which is transferred from the public employees
retirement system as that transferring deputy sheriff would have
received from the public employees retirement system if such transfer had not occurred. In connection with each deputy sheriff
receiving credit for prior employment provided in this subsection,
a transfer from public employees retirement system to this plan
shall be made pursuant to the procedures described in section eight
of this article.
(d) Once made, the election made under this section is
irrevocable. All deputy sheriffs first employed after the effective
date and deputy sheriffs electing to become members as described in
this section shall be members as a condition of employment and
shall make the contributions required by section seven of this
article.
(e) Notwithstanding any other provisions of this article, any
individual who is a leased employee shall not be eligible to
participate in the plan. For purposes of this plan, a "leased
employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or similar organization. If a question arises
regarding the status of an individual as a leased employee, the
board has final power to decide the question.
§7-14D-9. Retirement; commencement of benefits.
A member may retire and commence to receive retirement income
payments on the first day of the calendar month coincident with or next following the later of the date the member ceases employment
and the date the member attains early or normal retirement age, in
an amount as provided under section eleven of this article, by
filing with the board his or her voluntary petition in writing for
retirement: Provided, That retirement income payments shall
commence no later than the first day of April following the
member's seventy and one-half year birthday or the cessation of
covered employment, whichever later occurs under this plan shall be
subject to the provisions of section nine-b of this article. Upon
receipt of the petition, the board shall promptly provide the
member with an explanation of his or her or her optional forms of
retirement benefits and upon receipt of properly executed forms
from the member, the board shall process member's request for and
commence payments as soon as administratively feasible.
§7-14D-9a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of section 415 of the Internal Revenue Code
and regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this system shall exceed those limitations. The extent to
which any annuity or other benefit payable under this retirement system shall be reduced as compared with the extent to which an
annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under section 415 of the Internal Revenue Code
shall be reduced shall be determined by the board in a manner that
shall maximize the aggregate benefits payable to the member. If
the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§7-14D-9b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this plan. This section applies to plan
years beginning after the thirty-first day of December, one
thousand eight hundred eighty-six. Notwithstanding anything in the
plan to the contrary, the payment of benefits under this article
shall be determined and made in accordance with section 401(a)(9)
of the Internal Revenue Code and the regulations thereunder. For
this purpose, the following provisions apply:
(a)The payment of benefits under the plan to any member
shall be distributed to him or her not later than the required
beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with
regulations prescribed under section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary.
(b)If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the plan has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c)If a member dies before distribution to him or her has
commenced, then his or her entire interest in the plan shall be
distributed by the thirty-first day of December of the calendar
year containing the fifth anniversary of the member's death, except
as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary, commencing on or before the thirty-first of December of the calendar year immediately following the calendar year in
which the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died, or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§7-14D-9c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nineteen hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this plan, a
distributee may elect, at the time and in the manner prescribed by
the board, to have any portion of an eligible rollover distribution
that is equal to at least five hundred dollars paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this section, the following definitions
apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; (iv) any hardship distribution described in section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other
distribution or distributions reasonably expected to total less
than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code or a qualified plan described in section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution to the surviving spouse,
an eligible retirement plan is an individual retirement account or
individual retirement annuity.
(3)"Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the plan to the
eligible retirement plan.
(b) Nothing in this section shall be construed as permitting
rollovers to this plan or any other retirement system administered
by the board.
§7-14D-13. Refunds to certain members upon discharge or
resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the board, entitled to receive from the fund the member's accumulated contributions. Except as provided in
subsection (b) of this section, upon withdrawal the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member who withdraws accumulated contributions from
either this plan or the public employees retirement system and
thereafter becomes reemployed in covered employment shall not
receive any credited service for the prior employment unless
following his or her return to covered employment, the member
redeposits in the fund the amount of the accumulated contributions,
together with interest on the accumulate contributions at the rate
determined by the board from the date of withdrawal to the date of
redeposit. Upon repayment he or she shall receive the same credit
on account of his or her former service as if no refund had been
made. The repayment shall be made in a lump sum within sixty
months of the deputy sheriff's reemployment sum or if later, within
sixty months of the effective date of this article.
(c) Every member who completes sixty months of covered
employment is eligible, upon cessation of covered employment, to
either withdraw his or her accumulated contributions in accordance
with subsection (a) of this section, or to choose not to withdraw
his or her accumulated contribution and to receive retirement
income payments upon attaining early or normal retirement age.
(d) Notwithstanding any other provision of this article,
forfeitures under the plan shall not be applied to increase the
benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or
retirement income benefits from the plan may borrow from the plan
no more than one time in any year an amount up to one half of his
or her accumulated contributions, but not less than five hundred
dollars nor more than eight thousand dollars: Provided, however,
That the maximum amount of any loan when added to the outstanding
balance of all other loans shall not exceed the lesser of the
following: (1) Fifty thousand dollars reduced by the excess (if
any) of the highest outstanding balance of loans to the member on
the date on which the loan is made; or (2) fifty percent of his or
her accumulated contributions, No loan may be made from the plan
if the board determines that the loans constitute more than fifteen
percent of the amortized cost value of the assets of the plan as of
the last day of the preceding plan year. The board may discontinue
the loans any time it determines that cash flow problems might
develop as a result of the loans. Each loan shall be repaid through
monthly installments over periods of six through sixty months and
carry interest on the unpaid balance and an annual effective interest rate that is two hundred basis points higher than the most
recent rate of interest used by the board for determining actuarial
contributions levels. Monthly loan payments shall be calculated to
be as nearly equal as possible with all but the final payment being
an equal amount. An eligible member may make additional loan
payments or pay off the entire loan balance at any time without
incurring any interest penalty. At the member's option, the monthly
loan payment may include a level premium sufficient to provide
declining term insurance with the plan as beneficiary to repay the
loan in full upon the member's death. If a member declines the
insurance and dies before the loan is repaid, the unpaid balance of
the loan shall be deducted from the lump sum insurance benefit
payable under section twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire
may have the loan repaid in full by accepting retirement income
payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then
converting the remaining of the reserve to a monthly pension
payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due
thereon, shall at the option of the retirement board become due and
payable without further notice or demand upon the occurrence with respect to the borrowing member of any of the following events of
default: (1) Any payment of principal and accrued interest on a
loan remains unpaid after the same become due and payable under the
terms of the loan or after such grace period as may be established
in the discretion of the retirement board; (2) the borrowing member
attempts to make an assignment for the benefit of creditors of his
or her benefit under the retirement system; or (3) any other event
of default set forth in rules promulgated by the board pursuant to
the authority granted in section one, article ten-d, chapter five
of this code.
(d) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the retirement board may determine.
§7-14D-25. Exemption from taxation, garnishment and other process;
exception for certain qualified domestic relations orders.
The moneys in the fund and the right of a member, spouse or
other beneficiary to benefits under this article, to the return of
contributions, or to any retirement, death or disability payments
under the provisions of this article, are exempt from any state or
municipal tax; are not subject to execution, garnishment,
attachment or any other process whatsoever with the exception that
the benefits or contributions under the system shall be subject to "qualified domestic relations orders" as that term is defined in
section 414(p) of the Internal Revenue Code with respect to
governmental plans, and are unassignable except as is provided in
this article.
7-14D-27. Credit toward retirement for member's prior military
service; credit toward retirement when member has joined armed
forces in time of armed conflict; qualified military service.
(a) Any member who has previously served on active military
duty is entitled to receive additional years of service for the
purpose of determining his or her years of credited service for a
period equal to the active military duty not to exceed five years,
subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty; and
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty.
(b) In addition, any member who while in covered employment
was commissioned, enlisted or inducted into the armed forces of the
United States or, being a member of the reserve officers' corps,
was called to active duty in the armed forces between the first day of September, one thousand nine hundred forty, and the close of
hostilities in World War II, or between the twenty-seventh day of
June, one thousand nine hundred fifty, and the close of the armed
conflict in Korea on the twenty-seventh day of July, one thousand
nine hundred fifty-three, between the first day of August, one
thousand nine hundred sixty-four, and the close of the armed
conflict in Vietnam, or during any other period of armed conflict
by the United States whether sanctioned by a declaration of war by
congress or by executive or other order of the president, is
entitled to and shall receive credited service, for a period equal
to the full time that he or she has or, pursuant to that
commission, enlistment, induction or call, shall have served with
the armed forces subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That within ninety days after honorable discharge from the
armed forces, he or she presented himself or herself to the county
commission and offered to resume service as a deputy sheriff; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or
called.
(c) The total amount of service allowable under subsections
(a) and (b) of this section may not exceed five years.
(d) Any service credit allowed under this section may be
credited one time only for each deputy sheriff, regardless of any
changes in job title or responsibilities.
(e) 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. 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, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with section 414(u) of the Internal
Revenue Code.
§7-14D-31. Benefits not forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2.WEST VIRGINIA STATE POLICE.
§15-2-26.Continuation of death, disability and retirement fund;
designating the consolidated public retirement board as
administrator of fund.
(a) There shall be continued the death, disability and
retirement fund heretofore created for the benefit of members of
the division of public safety and any dependent of a retired or
deceased member thereof.
(b) There shall be deducted from the monthly payroll of each
member of the division of public safety and paid into such fund six
percent of the amount of his or her or her salary: Provided, That
beginning on the first day of July, one thousand nine hundred
ninety-four, there shall be deducted from the monthly payroll of
each member and paid into the fund seven and one-half percent of
the amount of his or her or her salary: Provided, however, That on
and after the first day of July, one thousand nine hundred ninety-
five, there shall be deducted from the monthly payroll of each
member and paid into the fund nine percent of the amount of his or
her or her salary. An additional twelve percent of the monthly salary of each member of the division shall be paid by the state of
West Virginia monthly into such fund out of the annual
appropriation for the division: Provided further, That beginning on
the first day of July, one thousand nine hundred ninety-five, the
state shall pay thirteen percent of the monthly salary of each
member into the fund: And provided, further, That beginning on the
first day of July, one thousand nine hundred ninety-six, the state
shall pay fourteen percent of the monthly salary of each member
into the fund: And provided further, That on and after the first
day of July, one thousand nine hundred ninety-seven, the state
shall pay fifteen percent of the monthly salary of each member into
the retirement fund. There shall also be paid into the fund
amounts that have previously been collected by the superintendent
of the division of public safety on account of payments to members
for court attendance and mileage, rewards for apprehending wanted
persons, fees for traffic accident reports and photographs, fees
for criminal investigation reports and photographs, fees for
criminal history record checks, fees for criminal history record
reviews and challenges or from any other sources designated by the
superintendent. All moneys payable into the fund shall be deposited in the state treasury and the treasurer and auditor shall
keep a separate account thereof on their respective books.
(c) Notwithstanding any other provisions of this article,
forfeitures under the fund shall not be applied to increase the
benefits any member would otherwise receive under the fund.
(d) The moneys in this fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are hereby exempt
from any state or municipal tax; shall not be subject to execution,
garnishment, attachment or any other process whatsoever, with the
exception that the benefits or contributions under the fund shall
be subject to "qualified domestic relations orders" as that term is
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans; and shall be unassignable except as is
provided in this article. The death, disability and retirement
fund shall be administered by the consolidated public retirement
board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the death,
disability and retirement fund, except such amounts as shall be
designated or set aside by the awards, shall be invested by the
state board of investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The retirement board shall retire any member of the
division of public safety when the member has both attained the age
of fifty-five years and completed twenty-five years of service as
a member of the division, including military service credit granted
under the provisions of section twenty-eight of this article.
(b) The retirement board shall retire any member of the
division of public safety who has lodged with the secretary of the
consolidated public retirement board his or her or her voluntary
petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service
as a member of the division (including military service credit
granted under the provisions of section twenty-eight of this
article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
division (excluding military service credit granted under section
twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the division
(excluding military service credit granted under section
twenty-eight of this article).
(c) When the retirement board retires any member under any of
the provisions of this section, the board shall, by order in
writing, make an award directing that the member shall be entitled
to receive annually and that there shall be paid to the member from
the death, disability and retirement fund in equal monthly
installments during the lifetime of the member while in status of
retirement one or the other of two amounts, whichever is the
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the division of public safety; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer
but less than twenty-five years as a member of the division and
shall be retired under any of the provisions of this section before
he or she shall have attained the age of fifty years, payment of
monthly installments of the amount of retirement award to such
member shall commence on the date he or she attains the age of
fifty years. Beginning on the fifteenth day of July, one thousand
nine hundred ninety-four, in no event may the provisions of section
thirteen, article sixteen, chapter five of this code be applied in determining eligibility to retire with either immediate or deferred
commencement of benefit.
(d) Any individual who is a leased employee shall not be
eligible to participate in the fund. For purposes of this fund, a
"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 power to decide the question.
§15-2-28.
Credit toward retirement for member's prior military
service; credit toward retirement when member has joined armed
forces in time of armed conflict; qualified military service.
(a) For purposes of this section, the term "active military
duty" means full-time active duty with the armed forces of the
United States, namely, the United States air force, army, coast
guard, marines or navy; and service with the national guard or
reserve military forces of any of such armed forces when the member
has been called to active full-time duty and has received no
compensation during the period of such duty from any person other
than the armed forces.
(b) Any member of the department who has previously served on
active military duty shall be entitled to and receive credit on the minimum period of service required by law for retirement pay from
the service of the department of public safety under the provisions
of this article for a period equal to the active military duty not
to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under section thirty of this article, he or she has
actually served with the department for twenty years exclusive of
his or her active military duty.
(c) The amount of retirement pay to which any such member is
entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the department equal to the average monthly
salary which he or she actually received from the department for
his or her total service with the department exclusive of the
active military duty. The superintendent is authorized to transfer
and pay into the death, disability and retirement fund from moneys appropriated for the department a sum equal to eighteen percent of
the aggregate of the salaries on which the retirement pay of all
such members has been calculated and determined for their periods
of active military duty. In addition, any person who while a
member of the department was commissioned, enlisted or inducted
into the armed forces of the United States or, being a member of
the reserve officers' corps, was called to active duty in said
armed forces between the first day of September, one thousand nine
hundred forty, and the close of hostilities in World War II, or
between the twenty-seventh day of June, one thousand nine hundred
fifty, and the close of the armed conflict in Korea on the
twenty-seventh day of July, one thousand nine hundred fifty-three,
between the first day of August, one thousand nine hundred
sixty-four and the close of the armed conflict in Vietnam, or
during any other period of armed conflict by the United States
whether sanctioned by a declaration of war by the Congress or by
executive or other order of the President, shall be entitled to and
receive credit on the minimum period of service required by law for
retirement pay from the service of the department of public safety
for a period equal to the full time he or she has or shall,
pursuant to such commission, enlistment, induction or call, have
served with said armed forces subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That within ninety days after honorable discharge from
the armed forces he or she has presented himself to the
superintendent and offered to resume service as an active member of
the department; and
(3)That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(d) That amount of retirement pay to which any such member
shall be entitled shall be calculated and determined as if the
member has continued in the active service of the department at the
rank or grade to him appertaining at the time of such commission,
induction, enlistment or call, during a period coextensive with the
time the member served with the armed forces pursuant to the
commission, induction, enlistment or call. The superintendent of
the department is authorized to transfer and pay each month into
the death, disability and retirement fund from moneys appropriated
for the department a sum equal to eighteen percent of the aggregate of salary which all such members would have been entitled to
receive had they continued in the active service of the department
during a period coextensive with the time such members served with
the armed forces pursuant to the commission, induction, enlistment
or call: Provided, That the total amount of military service credit
allowable under this section shall not exceed five years.
(e) Notwithstanding any of 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. 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, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with section 414(u) of the Internal
Revenue Code.
§15-2-29. Awards and benefits for disability - Incurred in
performance of duty.
(a) Any member of the division who has been or shall become
physically or mentally permanently disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in
or peculiar to the services required of members of the division and
incurred pursuant to or while such member was or shall be engaged
in the performance of his or her duties as a member of the division
shall, if, in the opinion of the retirement board, he or she is by
reason of such cause unable to perform adequately the duties
required of him or her as a member of the division, but is able to
engage in any other gainful employment, be retired from active
service by the retirement board. The member thereafter shall be
entitled to receive annually and there shall be paid to such member
from the death, disability and retirement fund in equal monthly
installments during the lifetime of such member; or until the
member attains the age of fifty; or until such disability shall
sooner terminate, one or the other of two amounts, whichever is
greater:
(1) An amount equal to two thirds of the salary received in
the preceding twelve-month employment period: Provided, That if the
member had not been employed with the division for twelve months
prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit; or
(2)The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the
benefit provided for in subsection (c), section twenty-seven of
this article as it would apply to his or her aggregate career
earnings from the division through the day immediately preceding
his or her disability. The recalculation of benefit upon a member
attaining age fifty shall be deemed to be a retirement under the
provisions of section twenty-seven of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article. If any member shall become
permanently physically or mentally disabled by injury, illness or
disease resulting from any occupational risk or hazard inherent in
or peculiar to the services required of members of the division and
incurred pursuant to or while such member was or shall be engaged
in the performance of his or her duties as a member of the
division, to the extent that such member is or shall be
incapacitated ever to engage in any gainful employment, such member
shall be entitled to receive annually and there shall be paid to
such member from the death, disability and retirement fund in equal
monthly installments during the lifetime of such member or until
such disability shall sooner terminate, an amount equal to the
amount of the salary received by the member in the preceding
twelve-month employment period: Provided, That in no event may such amount be less than fifteen thousand dollars per annum, unless
required by section forty of this article: Provided, however, That
if the member had not been employed with the division for twelve
months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit.
(c) The superintendent is authorized to expend moneys from
funds appropriated for the division in payment of medical,
surgical, laboratory, X-ray, hospital, ambulance and dental
expenses and fees, and reasonable costs and expenses incurred in
the purchase of artificial limbs and other approved appliances
which may be reasonably necessary for any member of the division
who has or shall become temporarily, permanently or totally
disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the service
required of members of the division and incurred pursuant to or
while such member was or shall be engaged in the performance of
duties as a member of the division. Whenever the superintendent
shall determine that any disabled member is ineligible to receive
any of the aforesaid benefits at public expense, the superintendent
shall, at the request of such disabled member, refer such matter to
the consolidated public retirement board for hearing and final
decision.
(d) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-35. Same - When member dies after retirement or after serving
twenty years.
When any member of said department has heretofore completed or
hereafter shall complete twenty years of service or longer as a
member of said department and has died or shall die from any cause
or causes other than those specified in this article before having
been retired by the retirement board, and when a member in
retirement status has died or shall die after having been retired
by the retirement board under the provisions of this article, there
shall be paid annually in equal monthly installments from said fund
to the surviving spouse of said member, commencing on the date of
the death of said member and continuing during the lifetime or
until remarriage of said surviving spouse an amount equal to
three-fourths the retirement benefits said deceased member was
receiving while in status of retirement, or would have been
entitled to receive to the same effect as if such member had been
retired under the provisions of this article immediately prior to
the time of his or her death and in no event to be less than five
thousand dollars unless otherwise required under section forty of
this article and in addition thereto said surviving spouse shall be entitled to receive and there shall be paid to such surviving
spouse from said fund the sum of one hundred dollars monthly for
each dependent child or children. If such surviving spouse die, or
remarry, or if there be no surviving spouse there shall be paid
monthly from said fund to each dependent child or children of said
deceased member a sum equal to twenty-five percent of the surviving
spouse's entitlement. If there be no surviving spouse or no
surviving spouse eligible to receive benefits and no dependent
child or children there shall be paid annually in equal monthly
installments from said fund to the dependent parents of said
deceased member during their joint lifetimes a sum equal to the
amount which a surviving spouse without children would have been
entitled to receive: Provided, That when there shall be but one
dependent parent surviving, such parent shall be entitled to
receive during his or her lifetime one half the amount which both
parents, if living, would have been entitled to receive.
§15-2-40. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the fund in compliance with the
limitations of section 415 of the Internal Revenue Code and
regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided under this fund shall exceed those limitations. The extent to
which any annuity or other benefit payable under this fund shall be
reduced as compared with the extent to which an annuity,
contributions or other benefits under any other defined benefit
plans or defined contribution plans required to be taken into
consideration under section 415 of the Internal Revenue Code shall
be reduced shall be determined by the board in a manner that shall
maximize the aggregate benefits payable to the member. If the
reduction is under this fund, the board shall advise affected
members of any additional limitation on the annuities required by
this section.
§15-2-41. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this code. This section applies to plan
years beginning after the thirty-first day of December, one
thousand nineteen hundred ninety eight. Notwithstanding anything
in the retirement system to the contrary, the payment of benefits
under this article shall be determined and made in accordance with
section 401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the fund to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary, or over a period not extending beyond the life
expectancy of the member and his or her beneficiary. For purposes
of this section, the term "required beginning date" means the first
day of April of the calendar year following the later of: (i) The
calendar year in which the member attains age seventy and one-half,
or (ii) the calendar year in which the member retires or otherwise
ceases providing covered service under this fund.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the fund shall be
distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member's death, except
as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died, or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§15-2-42. Direct Rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nine hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this fund, a distributee may elect, at the time and in the manner prescribed by
the board, to have any portion of an eligible rollover distribution
that is equal to at least five hundred dollars paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this section, the following definitions
apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; (iv) any hardship distribution described in section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other distribution or distributions that is reasonably expected to total
less than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code, or a qualified plan described in
section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, however,
That in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(3) "Distributee" means a member. In addition, the member's
surviving spouse and the member's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this fund or any other retirement system
administered by the board.
§15-2-43.
Federal qualification requirements.
This retirement system is intended to meet the requirements of
section 401(a) of the Internal Revenue Code as applicable to
governmental plans. Notwithstanding any other provision of state
law, the board shall administer the retirement system to fulfill
this intent for the exclusive benefit of the members and their
beneficiaries. Any provision of this article referencing or
relating to these federal qualification requirements shall be
effective as of the date required by federal law. The board may
promulgate rules and amend or repeal conflicting rules in
accordance with the authority granted to the board pursuant to
section one, article ten-d of chapter five to assure compliance
with this section.
§15-2-44. Specification of actuarial assumptions.
The board shall specify and adopt all actuarial assumptions
for the fund at its first meeting of every calendar year or as soon
thereafter as may be practicable, which assumptions shall become
part of the terms of the fund.
§15-2-45.Benefits not forfeitable if system terminates.
If the fund is terminated or contributions are completely
discontinued, the rights of all members to benefits accrued or
contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Active military duty" means full-time active duty with
the armed forces of the United States, namely, the United States
air force, army, coast guard, marines or navy; and service with the
national guard or reserve military forces of any of such armed
forces when the member has been called to active full-time duty and
has received no compensation during the period of such duty from
any person other than the armed forces.
(2) "Base salary" means compensation paid to a member without
regard to any overtime pay.
(3) "Board" means the consolidated public retirement board
created pursuant to article ten-d, chapter five of this code.
(4) "Division" means the division of public safety.
(5) "Final average salary" means the average of the highest
annual compensation received for employment with the division,
including compensation paid for overtime service, received by the
member during any five years within the member's last ten years of
service.
(6) "Fund" means the West Virginia state police retirement
fund created pursuant to section four of this article.
(7) "Member" or "employee" means a person regularly employed
in the service of the division of public safety after the effective
date of this article.
(8) "Salary" means the compensation of a member, excluding any
overtime payments.
(9) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(10) "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.
(11) "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 he or she retires or otherwise separates
from service with the department.
(12) "Retirement system" or "system" means the West Virginia
state police retirement system created and established by this
article.
§15-2A-3. Creation and administration of West Virginia state police
retirement system; leased employees; federal qualification
requirements.
(a) There is hereby created the West Virginia state police
retirement system. Any West Virginia state trooper employed by the
division of public safety West Virginia state police on or after
the effective date of this article shall be a member of this
retirement system and may not qualify for membership in any other
retirement system administered by the consolidated public
retirement board, so long as he or she remains employed by the
division state police.
(b) Any individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "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 power to
decide the question.
(c) The consolidated public retirement board created pursuant
to article ten-d, chapter five of this code shall administer the
West Virginia state police retirement system. The board may sue
and be sued, contract and be contracted with and conduct all the
business of the system in the name of the West Virginia state
police retirement system.
(d) This retirement system is intended to meet the federal
qualification requirements of section 401(a) and related sections
of the Internal Revenue Code as applicable to governmental plans.
Notwithstanding any other provision of state law, the board shall
administer the retirement system to fulfill this intent for the
exclusive benefit of the members and their beneficiaries. Any
provision of this article referencing or relating to these federal
qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend
or repeal conflicting rules in accordance with the authority
granted to the board pursuant to section one, article ten-d,
chapter five of this code, to assure compliance with this section.
§15-2A-4a. Specification of actuarial assumptions.
The board shall specify and adopt all actuarial assumptions
for the fund at its first meeting in each calendar year or as soon thereafter as may be practicable, which assumptions shall become
part of the terms of the system.
§15-2A-5. Members' contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member and paid into the fund created pursuant to section four of
this article twelve percent of the amount of his or her salary. An
additional twelve percent of the monthly salary of each member of
the department shall be paid by the state of West Virginia monthly
into such fund out of the annual appropriation for the division.
(b) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§15-2A-6a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of section 415 of the Internal Revenue Code
and treasury regulations under that section to the extent
applicable to governmental plans so that no annuity or other
benefit provided under this system shall exceed those limitations.
The extent to which any annuity or other benefit payable under this
retirement system shall be reduced as compared with the extent to which an annuity, contributions or other benefits under any other
defined benefit plans or defined contribution plans required to be
taken into consideration under section 415 of the Internal Revenue
Code shall be reduced shall be determined by the board in a manner
that shall maximize the aggregate benefits payable to the member.
If the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§15-2A-6b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's interest and take precedence over any inconsistent
provisions of this retirement system. This section applies to plan
years beginning after the thirty-first day of December, one
thousand nine hundred eighty-six. Notwithstanding anything in the
retirement system to the contrary, the payment of benefits under
this article shall be determined and made in accordance with
section 401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a)The payment of benefits under the retirement system to
any member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with regulations prescribed under section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her beneficiary or over a period not extending
beyond the life expectancy of the member and his or her
beneficiary.
(b)If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c)If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
shall be distributed by the thirty-first day of December of the
calendar year containing the fifth anniversary of the member's
death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first of December of
the calendar year immediately following the calendar year in which
the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§15-2A-6c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nineteen hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this system,
a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions shall apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; (iv) any hardship distribution described in section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other
distribution or distributions expected to total less than two
hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code or a qualified plan described in
section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other retirement system
administered by the board.
§15-2A-15. Exemption from taxation, garnishment and other process;
exception for certain qualified domestic relations orders.
The moneys in the fund and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are hereby exempt
from any state or municipal tax; shall not be subject to execution,
garnishment, attachment or any other process whatsoever except that the benefits or contributions under this system shall be subject to
"qualified domestic relations orders" as that term is defined in
section 414(p) of the Internal Revenue Code with respect to
governmental plans; and shall be unassignable except as is provided
in this article.
§15-2A-19. Credit toward retirement for member's prior military
service; credit toward retirement when member has joined armed
forces in time of armed conflict; qualified military service.
(a) Any member who has previously served on active military
duty is entitled to receive additional credited service for the
purpose of determining the amount of retirement award under the
provisions of this article for a period equal to the active
military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under this article, he or she or she has actually served with the division for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who while a member of the
division was commissioned, enlisted or inducted into the armed
forces of the United States or, being a member of the reserve
officers' corps, was called to active duty in the armed forces
between the first day of September, one thousand nine hundred
forty, and the close of hostilities in World War II, or between the
twenty-seventh day of June, one thousand nine hundred fifty, and
the close of the armed conflict in Korea on the twenty-seventh day
of July, one thousand nine hundred fifty-three, between the first
day of August, one thousand nine hundred sixty-four and the close
of the armed conflict in Vietnam, or during any other period of
armed conflict by the United States whether sanctioned by a
declaration of war by congress or by executive or other order of
the president, is entitled to and shall receive credit on the
minimum period of service required by law for retirement pay from
the service of the division of public safety, or its predecessor
agency, for a period equal to the full time that he or she has or,
pursuant to that commission, enlistment, induction or call, shall
have served with the armed forces subject to the following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That within ninety days after honorable discharge from the
armed forces, he or she presented himself or herself to the
superintendent and offered to resume service as an active member of
the division; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(c) The total amount of military service credit allowable
under this section may not exceed five years for any member of the
division.
(d) 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. 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, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with section 414(u) of the Internal
Revenue Code.
§15-2A-20. Benefits not forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3a. Federal qualification requirements.
The retirement system is intended to meet the federal
qualification requirements of section 401(a) and related sections
of the Internal Revenue Code as applicable to governmental plans.
Notwithstanding any other provision of state law, the board shall
administer the retirement system to fulfill this intent for the
exclusive benefit of the members and their beneficiaries. Any
provision of this article referencing or relating to these federal
qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority
granted to the board pursuant to section one, article ten-d of
chapter five to assure compliance with this section.
§18-7A-11. Records; actuarial data; tables; specification of
actuarial assumptions.
The retirement board shall maintain an individual account with
each member, showing the amount of the member's contributions and
the interest accumulations thereon. It shall collect and keep in
convenient form data as may be necessary for the preparation of the
required mortality and service tables, and for the compilation of
such other information as may be needed for the actuarial valuation
of the funds created by this article. The retirement board shall
specify and adopt all actuarial assumptions for the system at its
first meeting of every calendar year or as soon thereafter as may
be practicable, which assumptions shall become part of the terms of
the system.
§18-7A-13. Membership in retirement system; cessation of
membership; reinstatement of withdrawn service.
The membership of the retirement system shall consist of the
following:
(a) New entrants, whose membership in the system shall be
compulsory upon employment as teachers and nonteachers.
(b) The membership of the retirement system shall not include
any person who is an active member of or who has been retired by
the West Virginia public employees retirement system, the judge's
retirement system, or the retirement system of the department of
public safety or the supplemental retirement system as provided in
section four-a, article twenty-three of this chapter. The
membership of any person in the retirement system shall cease:
(1) Upon the withdrawal of accumulated contributions after the
cessation of service; or (2) upon retirement; or (3) at death; or
(4) if service amounts to fewer than five years in any period of
ten consecutive years.
(c) Any former member of the retirement system who has
withdrawn accumulated contributions but subsequently reenters the
retirement system shall be permitted to repay to the retirement
fund the amount withdrawn, plus interest at a rate of six percent,
compounded annually from the date of withdrawal to the date of
repayment: Provided, That no such repayment may be made until the
former member has completed two years of contributory service after
reentry; and such member shall be accorded all the rights to prior
service and experience as were held at the time of withdrawal of
such accumulated contributions: Provided, however, That no withdrawn service may be reinstated that has been transferred to
another retirement system from which the member is currently or
will in the future draw benefits based on the same service. The
interest paid shall be deposited in the reserve fund.
(d) No member shall be eligible for prior service credit
unless he or she is eligible for prior service pension, as
prescribed by section twenty-two of this article; however, a new
entrant who becomes a present teacher as provided in this paragraph
shall be deemed eligible for prior service pension upon retirement.
(e) Any individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "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 power to
decide the question.
§18-7A-17. Statement and computation of teachers' service;
qualified military service.
(a) Under rules adopted by the retirement board, each teacher
shall file a detailed statement of his or her length of service as
a teacher for which he or she claims credit. The retirement board shall determine what part of a year is the equivalent of a year of
service. In computing the service, however, it shall credit no
period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of
service performed in any calendar year.
(b) For the purpose of this article, the retirement board
shall grant prior service credit to new entrants and other members
of the retirement system for service in any of the armed forces of
the United States in any period of national emergency within which
a federal Selective Service Act was in effect. For purposes of this
section, "armed forces" includes women's army corps, women's
appointed volunteers for emergency service, army nurse corps,
spars, women's reserve and other similar units officially parts of
the military service of the United States. The military service is
considered equivalent to public school teaching, and the salary
equivalent for each year of that service is the actual salary of
the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military
service shall not exceed ten years for any one member, nor shall it
exceed twenty-five percent of total service at the time of
retirement. Notwithstanding the preceding provisions of this
subsection, 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. 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, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with section 414(u) of the Internal
Revenue Code.
(c) For service as a teacher in the employment of the federal
government, or a state or territory of the United States, or a
governmental subdivision of that state or territory, the retirement
board shall grant credit to the member: Provided, That the member
shall pay to the system double the amount he or she contributed
during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be
determined by the retirement board. The interest shall be deposited
in the reserve fund and service credit granted at the time of
retirement shall not exceed the lesser of ten years or fifty
percent of the member's total service as a teacher in West
Virginia. Any transfer of out-of-state service, as provided in this article, shall not be used to establish eligibility for a
retirement allowance and the retirement board shall grant credit
for the transferred service as additional service only: Provided,
however, That a transfer of out-of-state service is prohibited if
the service is used to obtain a retirement benefit from another
retirement system: Provided further, That salaries paid to members
for service prior to entrance into the retirement system shall not
be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be
denied on the basis of minimum income rules promulgated by the
teachers retirement board: Provided, That the member or retired
member shall pay to the system the amount he or she would have
contributed during the year or years of public school service for
which credit was denied as a result of the minimum income rules of
the teachers retirement board.
(e) No members shall be considered absent from service while
serving as a member or employee of the Legislature of the state of
West Virginia during any duly constituted session of that body or
while serving as an elected member of a county commission during
any duly constituted session of that body.
(f) No member shall be considered absent from service as a
teacher while serving as an officer with a statewide professional
teaching association, or who has served in that capacity, and no
retired teacher, who served in that capacity while a member, shall
be considered to have been absent from service as a teacher by
reason of that service: Provided, That the period of service credit
granted for that service shall not exceed ten years: Provided,
however, That a member or retired teacher who is serving or has
served as an officer of a statewide professional teaching
association shall make deposits to the teachers retirement board,
for the time of any absence, in an amount double the amount which
he or she would have contributed in his or her regular assignment
for a like period of time.
The teachers retirement board shall grant service credit to
any former or present member of the West Virginia public employees
retirement system who has been a contributing member for more than
three years, for service previously credited by the public
employees retirement system and: (1) Shall require the transfer of
the member's contributions to the teachers retirement system; or
(2) shall require a repayment of the amount withdrawn any time
prior to the member's retirement: 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 teachers retirement system during the period of his or her
membership in the public employees retirement system plus interest
at a rate of six percent compounded annually from the date of
withdrawal to the date of payment. The interest paid shall be
deposited in the reserve fund.
(g) For service as a teacher in an elementary or secondary
parochial school, located within this state and fully accredited by
the West Virginia department of education, the retirement board
shall grant credit to the member: Provided, That the member shall
pay to the system double the amount contributed during the first
full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined
by the retirement board. The interest shall be deposited in the
reserve fund and service granted at the time of retirement shall
not exceed the lesser of ten years or fifty percent of the member's
total service as a teacher in the West Virginia public school
system. Any transfer of parochial school service, as provided in
this section, may not be used to establish eligibility for a
retirement allowance and the board shall grant credit for the transfer as additional service only: Provided, however, That a
transfer of parochial school service is prohibited if the service
is used to obtain a retirement benefit from another retirement
system.
(h) If a member is not eligible for prior service credit or
pension as provided in this article, then his or her prior service
shall not be considered a part of his or her total service.
(i) A member who withdrew from membership may regain his or
her former membership rights as specified in section thirteen of
this article only in case he or she has served two years since his
or her last withdrawal.
(j) Subject to the provisions of subsection (a) through (i),
inclusive, of this section, the board shall verify as soon as
practicable the statements of service submitted. The retirement
board shall issue prior service certificates to all persons
eligible for the certificates under the provisions of this article.
The certificates shall state the length of the prior service
credit, but in no case shall the prior service credit exceed forty
years.
Notwithstanding any provision of this article to the contrary,
when a member is or has been elected to serve as a member of the
Legislature, and the proper discharge of his or her duties of public office require that member to be absent from his or her
teaching or administrative duties, the time served in discharge of
his or her duties of the legislative office are credited as time
served for purposes of computing service credit: Provided, That
the board may not require any additional contributions from that
member in order for the board to credit him or her with the
contributing service credit earned while discharging official
legislative duties.
§18-7A-28a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of section 415 of the Internal Revenue Code
and regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this system shall exceed those limitations. The extent to
which any annuity or other benefit payable under this retirement
system shall be reduced as compared with the extent to which an
annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under section 415 of the Internal Revenue Code
shall be reduced shall be determined by the board in a manner that
shall maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§18-7A-28b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this retirement system. This section
applies to plan years beginning after the thirty-first day of
December, one thousand eight hundred eighty-six. Notwithstanding
anything in the retirement system to the contrary, the payment of
benefits under this article shall be determined and made in
accordance with section 401(a)(9) of the Internal Revenue Code and
the regulations thereunder. For this purpose, the following
provisions apply:
(a)The payment of benefits under the retirement system to
any member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
regulations prescribed under section 401(a)(9) of the Internal
Revenue Code, over the life of the member or over the lives of the
member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her
beneficiary.
(b)If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c)If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
shall be distributed by the thirty-first day of December of the
calendar year containing the fifth anniversary of the member's
death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life or over a period certain
not greater than the life expectancy of the beneficiary commencing
on or before the thirty-first of December of the calendar year
immediately following the calendar year in which the member died;
or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died; or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§18-7A-28c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nineteen hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this system,
a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; (iv) any hardship distribution described in section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other
distribution reasonably or distributions expected to total less
than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code, or a qualified plan described in
section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution to the surviving spouse,
an eligible retirement plan is an individual retirement account or
individual retirement annuity.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code, as
applicable to governmental plans, are distributees with regard to
the interest of the spouse or former spouse
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other retirement system
administered by the board.
§18-7A-30. Exemption from taxation, garnishment and other process;
exception for qualified domestic relations order.
The moneys in the various funds and the right of a member to
a retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are hereby exempt
from any state or municipal tax; shall not be subject to execution,
garnishment, attachment or any other process whatsoever except that
any benefits or contributions under this system shall be subject to
"qualified domestic relations orders" as that term is defined in
section 414(p) of the Internal Revenue Code with respect to governmental plans; and shall be unassignable except as is provided
in this article.
§18-7A-34. Loans to members.
A member of the retirement system upon written application may
borrow from his or her individual account in the teachers
accumulation fund, subject to these restrictions:
(1) Loans shall be made in multiples of ten dollars, the
minimal loan being one hundred dollars and the maximum being eight
thousand dollars except: Provided, That the maximum amount of any
loan when added to the outstanding balance of all other loans shall
not exceed the lesser of the following: (a) fifty thousand dollars
reduced by the excess (if any) of the highest outstanding balance
of loans during the one-year period ending on the day before the
date on which the loan is made, over the outstanding balance of
loans to the member on the date on which the loan is made; or (b)
fifty percent of the member's contributions to his or her or her
individual account in the teachers accumulations fund: Provided,
however, That if the total amount of loaned money outstanding
exceeds forty million dollars, the maximum will shall not exceed be
three thousand dollars until the teachers retirement board
determines that loans outstanding have been reduced to an extent that eight thousand dollar additional loan amounts are again
authorized.
(2) Loans to any one member shall not exceed one half of his
contributions to his individual account in the teachers
accumulation fund.
(3)(2) Interest charged on the amount of the loan shall be six
percent per annum, or a higher rate as set by the teachers
retirement board. If repayable in installments, the interest shall
not exceed the annual rate so established upon the principal amount
of the loan, for the entire period of the loan, and such charge
shall be added to the principal amount of the loan. The minimal
interest charge shall be for six months.
(4)(3) No member shall be eligible for more than one loan in
any one year.
(5)(4) If a refund or benefit is payable to the borrower or
his or her beneficiary before he or she repays the loan with
interest, the balance due with interest to date shall be deducted
from such benefit or refund.
(6)(5) From his or her monthly salary as a teacher the member
shall pay the loan and interest by deductions which will pay the
loan and interest in substantially level payments in not more than
sixty nor less than six months. Upon notice of loan granted and payment due, the employer shall be responsible for making such
salary deductions and reporting them to the retirement board. At
the option of the retirement board, loan deductions may be
collected as prescribed herein for the collection of members'
contribution, or may be collected through issuance of warrant by
employer. If the borrower decides to make loan payments while not
paid for service as a teacher, the retirement board must accept
such payments.
(6) The entire unpaid balance of any loan, and interest due
thereon, shall, at the option of the retirement board, become due
and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events
of default: (A) Any payment of principal and accrued interest on a
loan remains unpaid after the same becomes due and payable under
the terms of the loan or after such grace period as may be
established in the discretion of the retirement board; (B) the
borrowing member attempts to make an assignment for the benefit of
creditors of his or her refund or benefit under the retirement
system; or (C) any other event of default set forth in rules
promulgated by the retirement board in accordance with the
authority granted pursuant to section one, article ten-d, chapter
five of this code.
(7) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the retirement board may determine.
§18-7A-37. Benefits not forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Defined contribution system" or "system" means the
teachers' defined contribution retirement system created and
established by this article;
(2) "Existing retirement system" means the state teachers
retirement system established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or
employs a member of the existing retirement system;
(4) "Consolidated board" or "board" means the consolidated
public retirement board created and established pursuant to article
ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if
regularly employed for full-time service: (a) Any person employed
for instructional service in the public schools of West Virginia;
(b) principals; (c) public school librarians; (d) superintendents
of schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher's
certificate; (f) the executive secretary of the retirement board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the state superintendent of
schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee thereunder performing
services of an educational nature; (i) employees of the state board
of education who are performing services of an educational nature;
(j) any person employed in a non-teaching capacity by the state
board of education, any county board of education, the state
department of education or the teachers retirement board, if such
person was formerly employed as a teacher in the public schools;
(k) all classroom teachers, principals and educational
administrators in schools under the supervision of the department
of corrections, the department of health or the department of human
services; (l) any person who is regularly employed for full-time
service by any county board of education, the state board of education or the teachers retirement board; and (m) the
administrative staff of the public schools including deans of
instruction, deans of men and deans of women, and financial and
administrative secretaries;
(6) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least
ten months, a month being defined as twenty employment days:
Provided, That no more than one year of service may be accumulated
in any twelve-month period;
(8) "Employer" means the agency of and within the state which
has employed or employs a member;
(9) "Compensation" means the full compensation actually
received by members for service whether or not a part of such
compensation is received from other funds, federal or otherwise,
than those provided by the state or its subdivisions.
(10) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the
employee's regular pay periods, and deposited into the member's individual annuity account within the defined contribution
retirement system;
(12) "Employer contribution" means an amount deposited into
the member's individual annuity account on a periodic basis
coinciding with the employee's regular pay period by an employer
from its own funds;
(13) "Annuity account" or "annuity" means an account
established for each member to record the deposit of member
contributions and employer contributions and interest, dividends or
other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active
employment of a participating employer and completion of all
conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical
incapacity requiring the absence from employment service for at
least six months: Provided, That such incapacity is shown by an
examination by a physician or physicians selected by the board.
(16) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending on the
following thirtieth day of June.
(17) "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 one and one-half; or (b) the
calendar year in which the member retires or otherwise ceases
employment with a participating employer.
(18) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
§18-7B-4. Article to be liberally construed; purpose; federal
qualification requirements.
The provisions of this article shall be liberally construed so
as to provide a general annuity based retirement system for
teachers in this state. The purpose of this article is to provide
a defined contribution retirement program which is fully funded on
a current basis from employer and employee contribution.
The retirement system is intended to meet the federal
qualification requirements of section 401(a) and related sections
of the Internal Revenue Code as applicable to governmental plans.
Notwithstanding any other provision of state law, the board shall
administer the retirement system to fulfill this intent for the
exclusive benefit of the members and their beneficiaries. Any
provision of this article referencing or relating to these federal
qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend
or repeal conflicting rules in accordance with the authority granted to the board pursuant to section one, article ten-d,
chapter five of this code to assure compliance with the
requirements of this section.
§18-7B-7. Participation in teachers' defined contribution
retirement system; limiting participation in existing
teachers' retirement system.
Beginning the first day of July, one thousand nine hundred
ninety-one, the teachers' defined contribution retirement system
shall be the single retirement program for all new employees whose
employment commences on or after that date. No additional new
employees except as may be provided herein may be admitted to the
existing retirement system. Members of the existing retirement
system whose employment continues beyond the first day of July, one
thousand nine hundred ninety-one, are not affected by this article
and shall continue to contribute and participate in the existing
system without change in provisions or benefits.
Notwithstanding the provisions of section twenty-three,
article seven-a of this chapter, any employee whose employment
terminates after the thirtieth day of June, one thousand nine
hundred ninety-one, who is later reemployed by an employer shall be
eligible for membership only in the teachers' defined contribution
system: Provided, That if such reemployment with an existing employer occurs not more than six months after the employee's
previous employment, he or she shall be entitled to readmission to
the existing retirement system in which he or she was originally a
member: Provided, however, That if such employee has five or more
years of credited service in the existing retirement system, he or
she shall be entitled to readmission into the existing retirement
system in which he or she was originally a member so long as he or
she has not withdrawn his or her contributions from the existing
retirement system: Provided further, That if such employee has
withdrawn his or her contribution from the existing retirement
system, then readmission shall not be permitted and the employee
will be entitled only to the defined contribution system.
An employee whose employment with an employer was suspended or
terminated while he or she served as an officer with a statewide
professional teaching association is eligible for readmission to
the existing retirement system in which he or she was a member. Any
employee reemployed with an employer on or after the first day of
July, one thousand nine hundred ninety-one, who had five or more
years credited service in the teachers' defined benefit retirement
system may elect readmission to the teachers' defined benefit
retirement system in which he or she was originally a member. Any employee reemployed between the first day of July, one thousand
nine hundred ninety-one, and the first day of July, one thousand
nine hundred ninety-five, and who was required to participate in
the teachers' defined contribution system but now elects, pursuant
to the provisions of this section, readmission to the teachers'
defined benefit retirement system shall pay an additional
contribution to the teachers' defined benefit retirement system
equal to one and one-half percent of his or her annual gross
compensation earned for each year he or she participated in the
teachers' defined contribution system and shall transfer all member
and employer contributions and investment earnings therefrom from
the teacher defined contribution system to the teachers' defined
benefit system and shall receive service credit for the time the
member participated in the defined contribution system as if that
participation had been in the teachers' defined benefit retirement
system. Any member making an election under the provisions of this
section to reenter the teachers' defined benefit retirement system
who is currently a member of the defined contribution retirement
system must do so on or before the first day of January, one
thousand nine hundred ninety-six. Any other member reemployed must
make the election as to the retirement system that he or she will
be a member of at the time he or she is reemployed.
An employee whose employment with an employer or an existing
employer is suspended as a result of an approved leave of absence,
approved maternity or paternity break in service, or any other
approved break in service authorized by the board, is eligible for
readmission to the existing retirement system in which he or she
was a member.
In all cases where a question exists as to readmission to
membership in the existing retirement system, the board shall
decide the question.
Any individual who is a leased employee shall not be eligible
to participate in the system. For purposes of this system, a
"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 power to decide the question.
§18-7B-8a. Qualified military service.
Contributions, benefits and service credit with respect to
qualified military service will 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. 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, chapter five of
this code, may to promulgate rules relating to contributions,
benefits and service credit to comply with section 414(u) of the
Internal Revenue Code.
§18-7B-12. Retirement, commencement of annuity payments.
At any time after an employee reaches the age of fifty-five
years, and subject to the provisions of section twelve-a of this
article, he or she may elect to take retirement by notifying the
board or its designee in writing of such intention not less than
sixty days prior to the effective date of retirement. Retirement
payments shall commence within thirty days of the retirement date
under such payment option or options as may be provided by the
board and elected by the employee.
§18-7B-12a. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this defined contribution system. This
section applies to plan years beginning after the thirty-first day
of December, one thousand eight hundred eighty-six.
Notwithstanding anything in this system to the contrary, the payment of benefits under this article shall be determined and made
in accordance with section 401(a)(9) of the Internal Revenue Code
and the regulations thereunder. For this purpose, the following
provisions apply:
(a) The payment of benefits under the defined contribution
system to any member shall be distributed to him or her not later
than the required beginning date, or be distributed to him or her
commencing not later than the required beginning date, in
accordance with regulations prescribed under section 401(a)(9) of
the Internal Revenue Code, over the life of the member or over the
lives of the member and his or her or her beneficiary or over a
period not extending beyond the life expectancy of the member and
his or her or her beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her or her
entire interest in the system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her or her entire interest in the system
shall be distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member's
death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died; or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
(d) For purposes of this section, any amount paid to a child
of a member will be treated as if it had been paid to the surviving
spouse of the member if such remaining amount becomes payable to
the surviving spouse when the child reaches the age of majority.
§18-7B-13. Amount of annuity payments; federal law maximum benefit
limitations.
(a) The amount of annuity payments a retired member shall
receive shall be based solely upon the balance in the member's
annuity account at the date of retirement, the retirement option
selected, or in the event of an annuity option being selected, the
actuarial life expectancy of the member and such other factors as
normally govern annuity payments.
(b) The board, or its designee, is authorized upon retirement
of a member, with the approval of that member, to purchase an
annuity with the balance of the member's account. Upon delivery of
the annuity to the member upon his or her retirement, the member
shall execute a release surrendering any claim the member may have
against the retirement trust.
(c) Notwithstanding any other provision of this article or
state law, the board shall administer the retirement system in
compliance with the limitations of section 415 of the Internal
Revenue Code and treasury regulations under that section to the
extent applicable to governmental plans so that no annuity or other
benefit provided under this system shall exceed those limitations.
The extent to which any annuity or other benefit payable under this
retirement system shall be reduced as compared to the extent which an annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under section 415 of the Internal Revenue Code
shall be reduced shall be determined by the board in a manner that
shall maximize the aggregate benefits payable to the member. If
the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§18-7B-13b. Direct Rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nine hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this system,
a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions apply:
(1) "Eligible rollover distribution" means any distribution
of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include any of the following: (i) Any distribution that is one of
a series of substantially equal periodic payments not less
frequently than annually made for the life or life expectancy of
the distributee or the joint lives or the joint life expectancies
of the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution
to the extent such distribution is required under section 401(a)(9)
of the Internal Revenue Code; (iii) the portion of any distribution
that is not includable in gross income determined without regard to
the exclusion for net unrealized appreciation with respect to
employer securities; (iv) any hardship distribution described in
section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v)
any other distribution or distributions reasonably expected to
total less than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code or a qualified plan described in
section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution. Provided, That in
the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this retirement system or any other retirement
system administered by the retirement board.
§18-7B-18. Right to benefits not subject to execution, etc.;
exception for qualified domestic relations orders.
The right of any person to a benefit provided for in this
article shall not be subjected to execution, attachment,
garnishment, the operation of bankruptcy or insolvency laws, or
other process whatsoever with the exception that the benefits or
contributions under this system shall be subject to "qualified
domestic relations orders" as that term is defined in section 414(p) of the Internal Revenue Code with respect to governmental
plans, nor shall any assignment thereof be enforceable in any
court.
§18-7B-19. Benefits not forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to contributions
made to the date of such termination or discontinuance, to the
extent then funded, are not forfeitable.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-1a. Definitions.
(a) As used in this article the term "judge" or "judge of any
court of record" or "judge of any court of record of this state"
shall mean, refer to and include judges of the several circuit
courts and justices of the supreme court of appeals.
(b) "Beneficiary" means any person, except a member, who is
entitled to an annuity or other benefit payable by the retirement
system.
(c) "Board"means the consolidated public retirement board
created pursuant to article ten-d, chapter five of this code.
(d) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(e) "Member" means a judge participating in this system.
(f) "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.
(g) "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 retires or otherwise separates
from covered employment.
(h) "Retirement system" or "system" means the judges
retirement system created and established by this article.
§51-9-3. Custody, permissible investment and administration of
retirement system trust fund; state auditor's authority as
administrator and trust fund fiduciary; refunds required,
including interest; federal qualification requirements.
(a) The state treasurer shall be the custodian of the fund and
of any investment securities of the retirement system and shall
give a separate and additional bond for the faithful performance of
his or her duties as such custodian. The governor shall fix the
amount of such bond which shall be approved as to sufficiency and
form by the attorney general and shall be filed in the office of the secretary of state. The premium on such bond shall be paid
from the fund.
(b) In a manner and to an extent consonant with sound
administrative principles, the state board of investments shall
have authority to invest such fund in interest-bearing securities
of the United States of America, of the state of West Virginia and
of any political subdivision thereof or such other investments as
may be authorized or permitted by the provisions of article six,
chapter twelve of this code.
(c) The state auditor shall be the primary fiscal officer,
responsible for the records and administration of the trust fund,
including budgetary matters incident to the authority vested in him
or her with respect to judicial department appropriations under
article VI, section 51 of the Constitution of West Virginia. The
state auditor shall also, as trust fund fiduciary, independently
determine anew, in a substantive sense and as a check and balance,
any information concerning eligible service years, required money
contributions, computation of judge's retirement benefit or spousal
benefit or any other substantive element of qualification supplied
or certified to the state auditor by any other public officer,
including the supreme court administrator or the chief executive, toward proper final review before issuance of a state warrant in
payment of any benefit under the judges' retirement system.
(d) Through the thirtieth day of June, one thousand nine
hundred ninety-one, the state auditor shall be the primary fiscal
officer, responsible for the records and administration of the
trust fund, including budgetary matter incident to the authority
vested in him or her with respect to judicial department
appropriations under article VI, section fifty-one of the
constitution of West Virginia. The state auditor shall also, as
trust fund fiduciary, independently determine anew, in a
substantive sense and as a check and balance, any information
concerning eligible service years, required money contributions,
computation of judge's retirement benefit or spousal benefit or any
other substantial element of qualification supplied or certified to
the state auditor by any other public officer, including the
supreme court administrator or the chief executive, toward proper
final review before issuance of a state warrant in payment of any
benefit under the judges' retirement system. From the first day of
July, one thousand nine hundred ninety-one and thereafter, the
funds shall be administered by the consolidated public retirement
board created by article ten-d, chapter five of this code.
(e) In respect of any credited service heretofore acquired
under the Dostert decision and subsequent related decisions, the
state auditor shall make refund to any person heretofore making
payment to acquire such service credit, primary or derivative, in
the amount so earlier paid, together with interest at the same rate
such sum actually earned because of its investment by the auditor
or treasurer, as the case may be, in the consolidated pension pool
or with the interest such sum would have earned if timely invested
in such pool, whichever amount of interest be greater.
(f) The retirement system is intended to meet the federal
qualification requirements of section 401(a) and related sections
of the Internal Revenue Code as applicable to governmental plans.
Notwithstanding any other provision of state law, the board shall
administer the retirement system to fulfill this intent for the
exclusive benefit of the members and their beneficiaries. Any
provision of this article referencing or relating to these federal
qualification requirements shall be effective as of the date
required by federal law. The board may promulgate rules and amend
or repeal conflicting rules in accordance with the authority
granted to the board pursuant to section one, article ten-d,
chapter five of this code to assure compliance with the
requirements of this section.
§ 51-9-3a. Specification of actuarial assumptions.
The board at its first meeting in each calendar year or as
soon thereafter as may be practicable shall adopt and specify
actuarial assumptions for the system, which assumptions shall
become part of the terms of this system.
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
retirement disallowed; leased employees; military service
credit; maximum allowable and qualified military service;
qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve
as a judge of any court of record of this state shall pay into the
judges' retirement fund six percent of the salary received by such
person out of the state treasury: Provided, That when a judge
becomes eligible to receive benefits from such trust fund by actual
retirement, no further payment by him or her shall be required,
since such employee contribution, in an equal treatment sense,
ceases to be required in the other retirement systems of the state,
also, only after actual retirement: Provide
d, however, That on and
after the first day of January, one thousand nine hundred
ninety-five, every person who is then serving or shall thereafter
serve as a judge of any court of record in this state shall pay into the judges' retirement fund nine percent of the salary
received by that person. Any prior occurrence or practice to the
contrary, in any way allowing discontinuance of required employee
contributions prior to actual retirement under this retirement
system, is rejected as erroneous and contrary to legislative intent
and as violative of required equal treatment and is hereby
nullified and discontinued fully, with the state auditor to require
such contribution in every instance hereafter, except where no
contributions are required to be made under any of the provisions
of this article.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "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 the final power to
decide the question.
(c) In drawing warrants for the salary checks of judges, the
state auditor shall deduct from the amount of each such salary
check six percent thereof, which amount so deducted shall be
credited by the consolidated public retirement board to the trust fund: Provided, That on or after the first day of January, one
thousand nine hundred ninety-five, the amount so deducted and
credited shall be nine percent of each such salary check.
(d) Any judge seeking to qualify military service to be
claimed as credited service, in allowable aggregate maximum amount
up to five years, shall be entitled to be awarded the same without
any required payment in respect thereof to the judges' retirement
fund.
(e) 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. The retirement board
is authorized to determine all questions and make all decisions
relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the
authority granted to the retirement board in section one, article
ten-d, chapter five of this code to comply with section 414(u) of
the Internal Revenue Code.
(f) Any judge holding office as such on the effective date of
the amendments to this article adopted by the Legislature at its regular session in the year one thousand nine hundred eighty-seven,
who seeks to qualify service as a prosecuting attorney as credited
service, which service credit must have been earned prior to the
year one thousand nine hundred eighty-seven, shall be required to
pay into the judges' retirement fund nine percent of the annual
salary which was actually received by such person as prosecuting
attorney during the time such prosecutorial service was rendered
prior to the year one thousand nine hundred eighty-seven, and for
which credited service is being sought, together with applicable
interest. No judge whose term of office shall commence after the
effective date of such amendments to this article shall be eligible
to claim any credit for service rendered as a prosecuting attorney
as eligible service for retirement benefits under this article, nor
shall any time served as a prosecutor after the year one thousand
nine hundred eighty-eight be considered as eligible service for any
purposes of this article.
(b) (g) The Legislature finds that any increase in salary for
judges of courts of record directly affects the actuarial soundness
of the retirement system for judges of courts of record and,
therefore, an increase in the required percentage contributions of
members of that retirement system is the same subject for purposes
of determining the single object of this bill.
§51-9-6. Eligibility for and payment of benefits.
(a) Except as otherwise provided in sections five, twelve and
thirteen of this article, and subject to the provisions of
subsection (e) of this section, any person who is now serving, or
who shall hereafter serve, as a judge of any court of record of
this State and shall have served as such judge for a period of not
less than sixteen full years and shall have reached the age of
sixty-five years, or who has served as judge of such court or of
that court and other courts of record of the State for a period of
sixteen full years or more (whether continuously or not and whether
said service be entirely before or after this article became
effective, or partly before and partly after said date, and whether
or not said judge shall be in office on the date he or she shall
become eligible to benefits hereunder) and shall have reached the
age of sixty-five years, or who is now serving, or who shall
hereafter serve, as a judge of any court of record of this State
and shall have served as such judge for a period of not less than
twenty-four full years, regardless of age, shall, upon a
determination and certification of his or her eligibility as
provided in section nine hereof, be paid from the fund annual
retirement benefits, so long as he or she shall live, in an amount
equal to seventy-five percent of the annual salary of the office from which he or she has retired based upon such salary of such
office and as such salary may be changed from time to time during
the period of his or her retirement and the amount of his or her
retirement benefits shall be based upon and be equal to
seventy-five percent of the highest annual salary of such office
for any one calendar year during the period of his or her
retirement, and shall be payable in monthly installments: Provided,
That such retirement benefits shall be paid only after such judge
has resigned as such or, for any reason other than his or her
impeachment, his or her service as such has ended: Provided,
however, That every such person seeking to retire and to receive
the annual retirement benefits provided by this subsection must
have served a minimum of twelve years as a sitting judge of any
such court of record.
(b) Notwithstanding any other provisions of this article with
the exception of sections twelve-a and twelve-b, any person who is
now serving or who shall hereafter serve as a judge of any court of
record of this state and who shall have accumulated sixteen years
or more of credited service, at least twelve years of which is as
a sitting judge of a court of record, and who has attained the age
of sixty-two years or more but less than the age of sixty-five years, may elect to retire from his or her office and to receive
the pension to which he or she would otherwise be entitled to
receive at age sixty-five, but with an actuarial reduction of
pension benefit to be established as a reduced annuity receivable
throughout retirement. The reduced percentage (less than
seventy-five percent) actuarially computed, determined and
established at time of retirement in respect of this reduced
pension benefit shall also continue and be applicable to any
subsequent new annual salary set for the office from which such
judge has retired and as such salary may be changed from time to
time during the period of his or her retirement.
(c) In determining eligibility for the benefits provided by
this section, active full-time duty (including leaves and
furloughs) in the armed forces of the United States shall be
eligible for qualification as credited military service for the
purposes of this article by any judge with twelve or more years
actual service as a sitting judge of a court of record, such
awardable military service to not exceed five years.
(d) If a judge of a court of record who is presently sitting
as such on the effective date of the amendments to this section
enacted by the Legislature at its regular session held in the year
one thousand nine hundred eighty-seven, and who has served for a period of not less than twelve full years and has made payments
into the judges' retirement fund as provided in this article for
each month during which he served as judge, following the effective
date of this section, any portion of time which he or she had
served as prosecuting attorney in any county in this state shall
qualify as years of service, if such judge shall pay those sums
required to be paid pursuant to the provisions of section four of
this article: Provided, That any term of office as prosecuting
attorney, or part thereof, commencing after the thirty-first day of
December, one thousand nine hundred eighty-eight, shall not
hereafter in any way qualify as eligible years of service under
this retirement system.
(e) Any retirement benefit accruing under the provisions of
this section shall not be paid if otherwise barred under the
provisions of article ten-a, chapter five of this code.
(f) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§51-9-6a. Eligibility benefits; service and retirement of judges
over sixty-five years of age.
Any judge of a court of record of this State, who shall have
served for a period of not less than eight full years after attaining the age of sixty-five years and who shall have made
payments into the judges' retirement fund as provided in this
article for each month during which he or she served as such judge
following the effective date of this section, shall be subject to
all the applicable terms and provisions of this article, not
inconsistent with the provisions hereof, and shall receive
retirement benefits in an amount equal to seventy-five percent of
the annual salary of the office from which he or she has retired
based upon such salary of such office as such salary may be changed
from time to time during the period of his or her retirement and
the amount of his or her retirement benefits shall be based upon
and be equal to seventy-five percent of the highest annual salary
of such office for any one calendar year during the period of his
or her retirement, and shall be payable in monthly installments. If
such judge shall become incapacitated to perform his or her said
duties before the expiration of his or her said term and after
serving for six years thereof, and upon the acceptance of his or
her resignation as in this article provided, he or she shall be
paid the annual retirement benefits as herein provided so long as
he or she shall live. The provisions of this section shall prevail
over any language to the contrary in this article contained, except
those provisions of sections twelve-a and twelve-b of this article.
§51-9-12a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of section 415 of the Internal Revenue Code
and regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this system shall exceed those limitations. The extent to
which any annuity or other benefit payable under this retirement
system shall be reduced as compared with the extent to which an
annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under section 415 of the Internal Revenue Code
shall be reduced shall be determined by the board in a manner that
shall maximize the aggregate benefits payable to the member. If
the reduction is under this retirement system, the board shall
advise affected members of any additional limitation on the
annuities required by this section.
§51-9-12b. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiaries interest and take precedence over any
inconsistent provisions of this retirement system. This section
applies to plan years beginning after the thirty-first day of December, one thousand eight hundred eighty-six. Notwithstanding
anything in the retirement system to the contrary, the payment of
benefits under this article shall be determined and made in
accordance with section 401(a)(9) of the Internal Revenue Code and
the regulations thereunder. For this purpose, the following
provisions apply:
(a)The payment of benefits under the retirement system to
any member shall be distributed to him or her not later than the
required beginning date, or be distributed to him or her commencing
not later than the required beginning date, in accordance with
treasury regulations prescribed under section 401(a)(9) of the
Internal Revenue Code, over the life of the member or over the
lives of the member and his or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary.
(b)If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the retirement system has been distributed, then the
remaining portion of that interest shall be distributed at least as
rapidly as under the method of distribution being used at the date
of his or her death.
(c)If a member dies before distribution to him or her has
commenced, then his or her entire interest in the retirement system
shall be distributed by the thirty-first day of December of the
calendar year containing the fifth anniversary of the member's
death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first of December of
the calendar year immediately following the calendar year in which
the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died; or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§51-9-12c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nineteen hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this system,
a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section, the
following definitions apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (ii) any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer
securities; (iv) any hardship distribution described in section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code; and (v) any other
distribution or distributions expected to total less than two
hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in section 408(b) of the
Internal Revenue Code, an annuity plan described in section 403(a)
of the Internal Revenue Code, or a qualified plan described in
section 401(a) of the Internal Revenue Code, that accepts the
distributee's eligible rollover distribution: Provided, That in the
case of an eligible rollover distribution to the surviving spouse,
an eligible retirement plan is an individual retirement account or
individual retirement annuity.
(3) "Distributee" means judge or former judge. In addition,
the judge's or former judge's surviving spouse and the judge's or
former judge's spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in section
414(p) of the Internal Revenue Code, with respect to governmental
plans, are distributees with regard to the interest of the spouse
or former spouse
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other system administered by the
board.
§51-9-14. Moneys exempt from execution, etc.; unassignable and
nontransferable; exception for certain domestic relations
orders.
The moneys in the judges' retirement fund, the right of any
judge to participate in the pay and benefits of the retirement
system and the right of any judge to a refund of payments or
contributions made to the fund shall not be subject to execution,
garnishment, attachment or any other process whatsoever except that
the benefits or contributions under this system shall be subject to
"qualified domestic relations orders" as that term is defined in
section 414(p) of the Internal Revenue Code with respect to
governmental plans; and shall be unassignable and nontransferable.
§51-9-17. Benefits not forfeitable if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeitable.
________
(NOTE: The purpose of this bill is to incorporate provisions
required under federal law in order to maintain the federal tax
qualification under section 401(a) and related sections of the
Internal Revenue Code of 1986 for the public employees retirement
system, deputy sheriff retirement plan, state police retirement
fund, state police retirement system, state teachers retirement
system, teachers defined contribution retirement system and
retirement system for judges of courts of record, to clarify that
leased employees are not eligible to participate in these systems,
to incorporate federal requirements relating to retirement plan
loans in the deputy sheriff retirement plan and the state teachers
retirement system and to add provisions for the administration of
those loans by the consolidated public retirement board.
Strike-through indicates language that would be stricken from
the present law and underscoring indicates new language that would
be added. Strike-through and underscoring have been omitted from
the following sections because they are new: sections twenty-seven-
a, twenty-seven-b, twenty-seven-c and fifty-five of article ten,
chapter five; sections nine-a, nine-b, nine-c and thirty-one,
article fourteen-d, chapter seven; sections forty, forty-one,
forty-two, forty-three, forty-four and forty-five, article two,
chapter fifteen; sections four-a, six-a, six-b, six-c and twenty,
article two-a, chapter fifteen; sections three-a, twenty-eight-a,
twenty-eight-b, twenty-eight-c and thirty-seven, article seven-a,
chapter eighteen; sections eight-a, twelve-a, thirteen-b and
nineteen, article seven-b, chapter eighteen; and sections three-a,
twelve-a, twelve-b, twelve-c and seventeen, article nine, chapter
fifty-one.
)