hb3032 intr

H. B. 3032

(By Delegates Campbell, Browning, Hall, Frederick and Duke)

(Originating in the Committee on Pensions and Retirement)

[February 14, 2003]

A BILL to amend and reenact sections one and two, article ten-d, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to setting forth purpose of the consolidated public retirement board; clarifying the fiduciary obligation of board members to the retirement funds and the members thereof; clarifying personal liability of board members; continuing the inapplicability of immunity for board members; providing for per diem pay of board members; stating that certain changes are remedial and may be applied retroactively; and providing that certain purchasing requirements do not apply to contracts for actuarial services, legal services, and other professional services.

Be it enacted by the Legislature of West Virginia:

That sections one and two, article ten-d, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated public retirement board created; transition; members; vacancies; investment of plan funds.

(a) There is hereby continued a consolidated public retirement board to administer all public retirement plans in this state. It shall administer the public employees retirement system established in article ten of this chapter; the teachers retirement system established in article seven-a, chapter eighteen of this code; the teachers' defined contribution retirement system created by article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created by article two, chapter fifteen of this code; the West Virginia state police retirement system created by article two-a of said chapter; the death, disability and retirement fund for deputy sheriffs created by article fourteen-d, chapter seven of this code; and the judges' retirement system created under article nine, chapter fifty-one of this code. The board is created as a public body corporate and is established to provide prudent fiscal administration and management of the foregoing retirement systems.

(b) The consolidated public retirement board shall begin administration of the death, disability and retirement fund for deputy sheriffs established in article fourteen-d, chapter seven of this code on the first day of July, one thousand nine hundred ninety-eight. Each member of the board owes a fiduciary obligation to each of the retirement systems administered by the board and to each of the members of those retirement systems, whether the member be retired or active. Members and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That board members are personally liable for ultra vires acts, acts of malfeasance, acts in violation of the laws creating and governing the various retirement systems administered by the board or for gross negligence. Members of the board may not invoke any immunity, be it common law, quasi-judicial or any other immunity.

(1) The governor or his or her designee;

(2) The state treasurer or his or her designee;

(3) The state auditor or his or her designee;

(4) The secretary of the department of administration or his or her designee;

(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the governor, with the advice and consent of the Senate; and

(6) A member, annuitant or retirant of the public employees retirement system who is or was a state employee; a member, annuitant or retirant of the public employees retirement system who is not or was not a state employee; a member, annuitant or retirant of the teachers retirement system; a member, annuitant or retirant of the West Virginia state police death, disability and retirement fund; a member, annuitant or retirant of the deputy sheriff's death, disability and retirement fund; and a member, annuitant or retirant of the teachers' defined contribution retirement system, all to be appointed by the governor, with the advice and consent of the Senate.

(d) The appointed members of the board shall serve five-year terms. ~~The governor shall appoint the member representing the deputy sheriff's death, disability and retirement fund by the first day of July, one thousand nine hundred ninety-eight, to a five-year term.~~ A member appointed pursuant to subdivision (6), subsection (c) of this section ceases to be a member of the board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees shall be of the same political party.

(e) The consolidated public retirement board has all the powers, duties, responsibilities and liabilities of the public employees retirement system established pursuant to article ten of this chapter; the teachers retirement system established pursuant to article seven-a, chapter eighteen of this code; the teachers' defined contribution system established pursuant to article seven-b of said chapter; the West Virginia state police death, disability and retirement fund created pursuant to article two, chapter fifteen of this code; the death, disability and retirement fund for deputy sheriffs created pursuant to article fourteen-d, chapter seven of this code; and the judges' retirement system created pursuant to article nine, chapter fifty-one of this code and their appropriate governing boards. The consolidated public retirement board may propose for promulgation all rules necessary to effectuate its powers, duties and responsibilities pursuant to article three, chapter twenty-nine-a of this code: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.

(f) ~~Effective on the first day of July, one thousand nine hundred ninety-six, the consolidated public retirement board shall, within two business days of receipt, transfer~~ The consolidated public retirement board shall continue to transfer all funds received by the consolidated public retirement board for the benefit of the retirement systems within the consolidated pension plan as defined in section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia investment management board: Provided, That the employer and employee contributions of the teachers' defined contribution system, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia consolidated public retirement board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia investment management board.

(g) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The consolidated public retirement board shall be a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the consolidated public retirement board shall be a trustee with regard to the investments of the teachers' defined contribution system, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the consolidated public retirement board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.

(h) Board members shall be paid the per diem rate for members of the Legislature set forth in section three, article two-a, chapter four of this code for each day a member attends a board meeting.

(i) Board members shall discharge their duties in accordance with the laws, documents and instruments creating and governing the retirement systems under their management, and shall discharge their duties with respect to the 401 (a) plans for the exclusive purpose of providing benefits to participants and their beneficiaries.

(j) The changes made in this section in the two thousand three regular session of the Legislature regarding fiduciary duties, personal liability and nonavailability of immunity are remedial in nature and merely constitute codification of existing case law and practices. Accordingly, the changes reflecting personal liability and inapplicability of immunity shall be applied by a court in any lawsuit or action brought after the thirty-first day of December, two thousand two.

~~(h)~~(k) The board may employ the West Virginia investment management board to provide investment management consulting services for the investment of funds in the teachers' defined contribution system.

§5-10D-2. Chairman and vice chairman; executive director; employees; legal advisor; actuary.

(a) The board shall elect from its own number a chairman and vice chairman.

(b) The board shall appoint an executive director of the retirement systems. The executive director shall be the chief administrative officer of all the systems and he or she shall not be a member of the board. He or she shall perform such duties as are required of him or her in this article and as the board from time to time delegates to him or her. The compensation of the executive director shall be fixed by the board subject to the approval of the governor. The executive director shall, with the approval of the board of trustees, employ such administrative, technical and clerical employees as are required in the proper operation of the systems.

(c) Notwithstanding the provisions of section two, article three of this chapter, the board shall employ and be represented by an attorney licensed to practice law in the state of West Virginia who is not a member of any of the retirement systems administered by the board.

(d) An actuary, employed by the state or the board pursuant to section four of this article, shall be the actuarial consultant to the board.

(e) Prior to the first day of July, one thousand nine hundred ninety-one, the expenses of the board for the administration of the teachers' defined contribution retirement system created pursuant to article seven-b, chapter eighteen of this code shall be paid by the teachers retirement system created pursuant to article seven-a of said chapter. The provisions of article three, chapter five-a of this code, relating to the division of purchases of the department of finance and administration, do not apply to any contracts for any actuarial services, legal services, third party administrator services, investment services or other professional services authorized to be executed under the provisions of this article.