H. B. 2844
(By Delegate Stalnaker)
[Introduced March 2, 2005; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33,
§15-2-34 and §15-2-37 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto three new
sections, designated §15-2-25b, §15-2-31a and §15-2-31b, all
relating to the West Virginia State Police Death, Disability
and Retirement Fund generally; adding general definitions;
adding definitions of "law-enforcement officer," "partially
disabled," "totally disabled," and "physical or mental
impairment"; making technical changes; providing for probable
permanent disability status; specifying that total disability
now is inability to perform any substantial gainful employment
and that partial disability is inability to perform law
enforcement duties; specifying limitation on compensation
rendered to health care providers; providing that member receiving annuity for partial disability incurred in
performance of duty may be employed as an elected sheriff or
appointed chief of police if it is shown to the Board that
such employment is not inconsistent with the partial
disability; allowing application for disability to be made by
person acting on member's behalf; allowing Superintendent to
petition Board for member's disability when he or she deems
the member disabled; authorizing rules; judicial review;
allowing Board to withhold payment pending judicial review;
requiring disability recipient to file annual statement of
earnings and setting forth penalty for refusal or failure to
do so; and annual report of employer's disability retirement
experience.
Be it enacted by the Legislature of West Virginia:
That §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29,
§15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of
the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto three
new sections, designated §15-2-25b, §15-2-31a and §15-2-31b, all to
read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund," "plan," or "system," means the West Virginia
Death, Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the Board
to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State
Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in
other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent
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 subsection, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the Department 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: (1) The work exists in the immediate area in which the
member lives; (2) a specific job vacancy exists; or (3) the member
would be hired if he or she applied for work.
§15-2-26. Continuation of death, disability and retirement fund;
designating the Consolidated Public Retirement Board
as administrator of fund.
(a) There shall be is continued the Death, Disability and
Retirement Fund heretofore created for the benefit of members of
the division of public safety Department 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 Department and paid into
such fund six percent of the amount of his 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 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 salary. An additional twelve percent of the monthly
salary of each member of the division Department shall be paid by
the State of West Virginia monthly into such fund out of the annual
appropriation for the division Department: 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 Department
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 Department 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 Department, 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 Department who has lodged with the
secretary Executive Director of the Consolidated Public Retirement
Board his 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 Department (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 Department (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
Department (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 Department; 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
Department 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.
§15-2-27a. Retirement annual annuity adjustments.
Every member of the division of public safety Department who
is fifty-five years of age or older and who is retired by the
Retirement Board under the provisions of section twenty-seven of
this article; every member of the division of public safety
Department who is retired by the Retirement Board under the
provisions of section twenty-nine or thirty of this article; and
every surviving spouse or other beneficiary receiving a benefit
pursuant to section thirty-three or thirty-four of this article, is
eligible to receive an annual retirement annuity adjustment equal
to three and seventy-five hundredths percent of his or her
retirement award or surviving spouse award: Provided, That for any
person retiring on and after the fifteenth day of September, one thousand nine hundred ninety-four, the annual retirement annuity
adjustment shall be equal to two percent of his or her retirement
award or award paid to a surviving spouse or other beneficiary.
Such adjustments may not be retroactive. Yearly adjustments shall
begin upon the first day of July of each year. The annuity
adjustments shall be awarded and paid to the members from the
Death, Disability and Retirement Fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits as
provided in this article.
Any member or beneficiary who receives a benefit pursuant to
the provisions of section twenty-nine, thirty, thirty-three or
thirty-four of this article shall begin to receive the annual
annuity adjustment one year after the commencement of the benefit
on the next July first: Provided, That if the member has been
retired for less than one year when the first annuity adjustment is
given on that July first, that first annuity adjustment will be a
pro rata share of the full year's annuity adjustment.
§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 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 Department who has not yet
entered retirement status on the basis of age and service and who becomes partially 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 Department 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
Department shall, if, in the opinion of the Retirement Board, he or
she is by reason of such cause probably permanently unable to
perform adequately the duties required of him or her as a member of
the division Department, but is able to engage in any other gainful
employment in a field other than law enforcement, 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 Department 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 Department 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: Provided, That a member
who is partially disabled under this article may not, while in
receipt of benefits for partial disability, be employed as a
law-enforcement officer: Provided, however, That a member retired
on partial disability under this article may serve as an elected
sheriff or appointed chief of police in the state without a loss of
disability retirement benefits so long as such elected or appointed
position is shown, to the satisfaction of the Board, to require the
performance of administrative duties and functions only, as opposed
to the full range of duties of a law-enforcement officer.
(c) If any member not yet in retirement status on the basis of
age and service is found by the Board to be permanently and totally
disabled as the result of a physical or mental impairment 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 Department 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 Department, 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
Department for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit.
(c) (d) The Superintendent is authorized to expend moneys from
funds appropriated for the division Department 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 Department 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
Department and incurred pursuant to or while such member was or
shall be engaged in the performance of duties as a member of the
division Department. 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. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current
rate schedule in use by the Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term "salary"
does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the division
Department has, or shall in the opinion of the Retirement Board,
become permanently partially or totally disabled to the extent that
such member cannot adequately perform the duties required of a
member of the division Department from any cause other than those
set forth in the preceding section and not due to vicious habits,
intemperance or willful misconduct on his or her part, such member
shall be retired by the Retirement Board. Such member shall be
entitled to receive annually and there shall be paid to such member while in status of retirement, from the Death, Disability and
Retirement Fund in equal monthly installments during the lifetime
of such member or until such disability shall sooner terminate, a
sum equal to one-half the salary received in the preceding
twelve-month period: Provided, That if the member had not been
employed with the division Department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit. If such member, at the
time of such retirement under the terms of this section, shall have
served twenty years or longer as a member of the division
Department, 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, commencing on the
date such member shall be retired and continuing during the
lifetime of such member, until the member attains the age of fifty,
while in status of retirement, an amount equal to one-half the
salary received by the member in the preceding twelve-month period:
Provided, however, That if the member had not been employed with
the division Department for twelve months prior to the disability,
the amount of monthly salary shall be annualized for the purpose of
determining the benefit.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
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 Department 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.
§15-2-31. Same - Physical examinations; termination.
The Consolidated Public Retirement Board may require any
member who has been or who shall be retired with compensation on
account of disability to submit to a physical and/or mental
examination by a physician or physicians selected or approved by
the board and cause all costs incident to such examination
including hospital, laboratory, X ray, medical and physicians' fees
to be paid out of funds appropriated to defray the current expense
of the division Department, and a report of the findings of such
physician or physicians shall be submitted in writing to the
Consolidated Public Retirement Board for its consideration. If,
from such report or from such report and hearing thereon, the
Retirement Board shall be of opinion and find that such disabled
member shall have recovered from such disability to the extent that
he or she is able to perform adequately the duties of a
law-enforcement officer, a member of the division the Board shall order such member to reassume active duty as a member of the
division and thereupon that all payments from the Death, Disability
and Retirement Fund shall be terminated. If, from the report or
the report and hearing thereon, the Board shall be of the opinion
and find that the disabled member shall have recovered from the his
or her previously determined probable permanent disability to the
extent that he or she is able to engage in any gainful employment
but remains unable to adequately perform the duties of a
law-enforcement officer, required as a member of the division the
Board shall order the payment, in monthly installments of an amount
equal to two thirds of the salary, in the case of a member retired
under the provisions of section twenty-nine of this article, or
equal to one half of the salary, in the case of a member retired
under the provisions of section thirty of this article, excluding
any compensation paid for overtime service, for the twelve-month
employment period preceding the disability: Provided, That if the
member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member's behalf. After receiving an
application for a disability benefit from a member or a person acting with legal authority on behalf of the member, the Board
shall notify the Superintendent of the Department that an
application has been filed: Provided, That when, in the judgment
of the Superintendent, a member is no longer physically or mentally
fit for continued duty as a member of the West Virginia State
Police and the member has failed or refused to make application for
disability benefits under this article, the Superintendent may
petition the board to retire such member on the basis of disability
pursuant to rules which may be established by the Board. Within
thirty days of the Superintendent's receipt of the notice from the
Board or the filing of the Superintendent's petition with the
Board, the Superintendent shall forward to the Board a statement
certifying the duties of the member's employment, information
relating to the Superintendent's position on the work relatedness
of the member's alleged disability, complete copies of the member's
medical file and any other information requested by the Board in
its processing of the application.
(b) The Board shall adopt rules relating to the processing of
applications and petitions for disability retirement under this
article.
(c) A member of the Fund who has served fifteen or more years
as an active member of the West Virginia State Police before filing
an application for disability benefits under this article and who
is found by the Board to be totally disabled as the direct and proximate result of cardiovascular disease not present at the time
of the member's entry examination by the West Virginia State Police
is presumed to have incurred the disability as a result of the
member's duties as a member of the West Virginia State Police.
This presumption is rebuttable by a preponderance of the evidence
that the member's cardiovascular disease is not a direct and
proximate result of the member's duties as a member of the West
Virginia State Police.
(d) The Board shall notify a member and the Superintendent of
its final action on the disability application or petition within
ten days of the Board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the Superintendent is aggrieved by the decision of the Board and
intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the Board within
twenty days of the member's or Superintendent's receipt of the
Board's notice that they intend to pursue judicial review of the
Board's decision. The Board retains the discretion to not commence
payment of a disability retirement under the provisions of this
article if either the member or the Superintendent of the West
Virginia State Police has notified the Board of an intent to pursue
judicial review, until the statutory time limit has expired for the
filing of actions seeking judicial review, or until final judgment in any action seeking judicial review under section four, article
five, chapter twenty-nine-a of this code, whichever is later.
(e) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient file the
annual statement of earnings if the Board's physician certifies
that the recipient's disability is ongoing. The Board shall
annually examine the information submitted by the recipient. If a
disability recipient refuses to file the statement or information,
the disability benefit shall be suspended until the statement and
information are filed. If the refusal continues for one year, the
recipient's right to the disability benefit shall be terminated
retroactive to the original suspension.
§15-2-31b. Annual report on each employer's disability retirement
experience.
Not later than the first day of January, two thousand six,
and each first day of January thereafter, the Board shall prepare
a report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of State Police employees who are members of the Fund. The report shall be submitted to the
Governor and the chairpersons of the standing committees of the
Senate and House of Delegates with primary responsibility for
retirement legislation.
§15-2-32. Retired member not to exercise police authority;
retention of group insurance.
A member who has been or shall be retired shall not, while in
retirement status, exercise any of the powers conferred upon active
members by section twelve of this article; but shall be entitled to
receive free of cost to such member and retain as his or her
separate property one complete standard uniform prescribed by
section nine of this article: Provided, That such uniform may be
worn by a member in retirement status only on such occasions as
shall be prescribed by the Superintendent. The Superintendent is
authorized to maintain at public expense for the benefit of all
members in retirement status that group life insurance mentioned in
section ten of this article. The Superintendent, when he or she
shall be of opinion that the public safety shall require, may
recall to active duty during such period as the Superintendent
shall determine, any member who shall be retired under the
provisions of section twenty-seven of this article, provided the
consent of such member to reassume duties of active membership
shall first be had and obtained. When any member in retirement
shall reassume status of active membership such member, during the period such member shall remain in active status, shall not be
entitled to receive retirement pay or benefits, but in lieu
thereof, shall be entitled to receive that rate of salary and
allowance pertinent to the rank or grade held by such member when
retired. When such member shall be released from active duty he or
she shall reassume the status of retirement and shall thereupon be
entitled to receive appropriate benefits as provided by this
article: Provided, That the amount of such benefits shall in no
event be less than the amount determined by the order of the
Retirement Board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent
child scholarship and amount.
The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while such member was
or shall be engaged in the performance of his or her duties as a
member of the division Department, or if said member shall die from
any cause after having been retired pursuant to the provisions of
section twenty-nine of this article, the surviving spouse or other
dependent shall be entitled to receive and shall be paid from the
Death, Disability and Retirement Fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his
or her lifetime one or the other of two amounts, which shall become
immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the salary received in
the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the division Department 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.
In addition thereto such surviving spouse shall be entitled to
receive and there shall be paid to such person one hundred dollars
monthly for each dependent child or children. If such surviving
spouse dies or if there is no surviving spouse, there shall be paid
monthly to each such dependent child or children from the Death,
Disability and Retirement Fund a sum equal to twenty-five percent
of the surviving spouse's entitlement. If there are is no
surviving spouse and no dependent child or children, there shall be
paid annually in equal monthly installments from the Death,
Disability and Retirement Fund to the dependent parents of the
deceased member during their joint lifetimes a sum equal to the
amount which a surviving spouse, without children, would have
received: Provided, That when there is but one dependent parent
surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would
have been entitled to receive.
Any person qualified as a surviving dependent child under this
section shall, in addition to any other benefits due under this or
other sections of this article, be entitled to receive a
scholarship to be applied to the career development education of
that person. This sum up to but not exceeding seven thousand five
hundred dollars shall be paid from the Death, Disability and
Retirement Fund to any university or college in this state or to
any trade or vocational school or other entity in this state
approved by the board, to offset the expenses of tuition, room and
board, books, fees or other costs incurred in a course of study at
any of those institutions so long as the recipient makes
application to the Board on an approved form and under such rules
as the Board may provide, and maintains scholastic eligibility as
defined by the institution or the Board. The Board may by
appropriate rules define age requirements, physical and mental
requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
Awards and benefits for a member's surviving spouse or
dependents received under any section or any of the provisions of
this retirement system shall be in lieu of receipt of any such
benefits for such persons under the provisions of any other state retirement system. Receipt of benefits under any other state
retirement system shall be in lieu of any right to receive any
benefits under this retirement system, so that only a single
receipt of retirement benefits shall occur.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division Department, before having completed twenty years of
service as a member of the division Department, has died or shall
die from any cause other than those specified in this article and
not due to vicious habits, intemperance or willful misconduct on
his or her part, there shall be paid annually in equal monthly
installments from said Death, Disability and Retirement Fund to the
surviving spouse of such member during his or her lifetime, or
until such time as said surviving spouse remarries, a sum equal to
one half of the salary received in the preceding twelve-month
employment period by the deceased member: Provided, That if the
member had not been employed with the division Department for
twelve months prior to his or her death, the amount of monthly
salary shall be annualized for the purpose of determining the
benefit. Such benefit shall become immediately available upon the
death of the member. If there is no surviving spouse, or the surviving spouse dies or remarries, there shall be paid monthly to
each dependent child or children, from the Death, Disability and
Retirement Fund, a sum equal to twenty-five percent of the
surviving spouse's entitlement. If there are is no surviving
spouse and no dependent child or children, there shall be paid
annually in equal monthly installments from the Fund to the
dependent parents of the deceased member during their joint
lifetimes, a sum equal to the amount which a surviving spouse would
have been entitled to receive: Provided, however, That when there
is but one dependent parent surviving, that 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.
For the purposes of this section, the term "salary" does not
include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who shall be discharged by order of the
Superintendent or shall otherwise terminate employment with the
division Department shall, at the written request of the member to
the Retirement Board, be entitled to receive from the Retirement
Fund a sum equal to the aggregate of the principal amount of moneys
deducted from his or her salary and paid into the Death, Disability
and Retirement Fund plus four percent interest compounded thereon
calculated annually as provided and required by this article.
(b) Any member who has ten or more years of service with the
division Department and who withdraws his or her contributions may
thereafter be reenlisted as a member of the division Department,
but may not receive any prior service credit on account of former
service, unless following reenlistment the member shall redeposit
in the Fund established in article two-a of this chapter the amount
of the refund, together with interest thereon at the rate of seven
and one-half percent per annum from the date of withdrawal to the
date of redeposit, in which case he or she shall receive the same
credit on account of his or her former service as if no refund had
been made. He or she shall become a member of the Retirement System
established in article two-a of this chapter.
(c) Every member who completes ten years of service with the
division of public safety Department is eligible, upon separation
of employment with the division Department, either to withdraw his
or her contributions in accordance with subsection (a) of this
section or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
eligible to receive a retirement annuity. Any member choosing to
receive the deferred annuity under this subsection is not eligible
to receive the annual annuity adjustment provided in section
twenty-seven-a of this article. 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
is 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
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 Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring member may choose, in lieu of such a life
annuity, an annuity in reduced amount payable during the member's
lifetime, with one half of such reduced monthly amount paid to his
or her surviving spouse if any, for the spouse's remaining lifetime
after the death of the member. Reduction of this monthly benefit
amount shall be calculated to be of equal actuarial value to the
life annuity the member could otherwise have chosen.
NOTE: The purpose of this bill is to enact comprehensive
changes to the West Virginia State Police Death, Disability and
Retirement System. The bill adds definitions of "law-enforcement
officer," "partially disabled," "totally disabled" and "physical or
mental impairment." The bill also makes technical changes such as
updating the name of the State Police.
The bill also provides that a member receiving an annuity for
partial disability incurred in performance of duty may be employed
as an elected sheriff or appointed chief of police if it is shown
to the Board that such employment is not inconsistent with the partial disability, but may not otherwise be employed in a law
enforcement capacity. The bill specifies a limitation on
compensation to be paid to health care providers to be not greater
than that paid by the Workers' Compensation Commission. The bill
requires that the Board receive a copy of the employment physical
within thirty days following employment.
The bill adds substantial language regarding disability
retirement, including, allowing an application for disability to be
made by a person acting on member's behalf and allowing
Superintendent to petition Board for member's disability when he or
she deems the member disabled. The bill authorizes legislative
rules with respect to retirement and specifies notification
requirements.
The bill provides for judicial review of its decisions and
allows the Board to withhold payment pending judicial review. The
bill also mandates that a disability recipient file annual
statement of earnings and sets forth a penalty for refusal or
failure to do so. The penalty is forfeiture of benefits. Finally
the bill requires an annual report of employer's disability
retirement experience.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§§15-2-25b, 15-2-31a and 15-2-31b are new; therefore
strike-throughs and underlining have been omitted.