ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 173
(Senators Foster, Barnes, Lanham, McCabe and Plymale, original sponsors)
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[Passed March 11, 2006; in effect ninety days from passage.]
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AN ACT to amend and reenact §5-10-14, §5-10-27 and §5-10-48 of the
Code of West Virginia, 1931, as amended, all relating to the
Public Employees Retirement System generally; providing
service credit for certain temporary legislative employees for
retirement purposes; clarifying right of members and former
members to select certain beneficiaries for preretirement
death annuities; limiting choice of beneficiaries to receive
preretirement death annuities for new members only; providing
for preretirement death benefit of accumulated contributions
to be paid in a lump sum amount to any beneficiary or
beneficiaries chosen by a member; providing that the date of
membership and date of passage control election of benefits;
recognizing exception for certain members who die as a result
of active military service; and providing for the
reeemployment of certain former legislative employees on a per
diem basis under certain restrictions without suspension of
retirement annuity.
Be it enacted by the Legislature of West Virginia:
That
§5-10-14, §5-10-27 and §5-10-48 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-14. Service credit; retroactive provisions.
(a) The board of trustees shall credit each member with the
prior service and contributing service to which he or she is
entitled based upon rules adopted by the board of trustees and
based upon the following:
(1) In no event may less than ten days of service rendered by
a member in any calendar month be credited as a month of service:
Provided, That for employees of the state Legislature whose term of
employment is otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim between regular sessions and
who have been or are so employed during regular sessions or during
the interim between regular sessions in seven consecutive calendar
years, service credit of one month shall be awarded for each ten
days employed in the interim between regular sessions, which
interim days shall be cumulatively calculated so that any ten days,
regardless of calendar month or year, shall be calculated toward
any award of one month of service credit;
(2) Except for hourly employees, ten or more months of service
credit earned in any calendar year shall be credited as a year of
service: Provided, That no more than one year of service may be
credited to any member for all service rendered by him or her in
any calendar year and no days may be carried over by a member from one calendar year to another calendar year where the member has
received a full-year credit for that year; and
(3) Service may be credited to a member who was employed by a
political subdivision if his or her employment occurred within a
period of thirty years immediately preceding the date the political
subdivision became a participating public employer.
(b) The board of trustees shall grant service credit to
employees of boards of health, the Clerk of the House of Delegates
and the Clerk of the state Senate or to any former and present
member of the State Teachers Retirement System who have been
contributing members for more than three years, for service
previously credited by the State Teachers Retirement System and
shall require the transfer of the member's contributions to the
system and shall also require a deposit, with interest, of any
withdrawals of contributions any time prior to the member's
retirement. Repayment of withdrawals shall be as directed by the
board of trustees.
(c) Court reporters who are acting in an official capacity,
although paid by funds other than the county commission or State
Auditor, may receive prior service credit for time served in that
capacity.
(d) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service
credit for time served in that capacity: Provided, That in order to
receive service credit under the provisions of this subsection the
following conditions must be met: (1) The member must have moved
from temporary employment with the participating employer to
permanent full-time employment with the participating employer within one hundred twenty days following the termination of the
member's CETA employment; (2) the board must receive evidence that
establishes to a reasonable degree of certainty as determined by
the board that the member previously worked in CETA; and (3) the
member shall pay to the board an amount equal to the employer and
employee contribution plus interest at the amount set by the board
for the amount of service credit sought pursuant to this
subsection: Provided, however, That the maximum service credit that
may be obtained under the provisions of this subsection is two
years: Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of March, two
thousand three: And provided further, That the board shall exercise
due diligence to notify affected employees of the provisions of
this subsection.
(e)(1) Employees of the state Legislature whose terms of
employment are otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim time between regular
sessions shall receive service credit for the time served in that
capacity in accordance with the following. For purposes of this
section, the term "regular session" means day one through day sixty
of a sixty-day legislative session or day one through day thirty of
a thirty-day legislative session. Employees of the state
Legislature whose term of employment is otherwise classified as
temporary and who are employed to perform services required by the
Legislature for its regular sessions or during the interim time
between regular sessions and who have been or are employed during regular sessions or during the interim time between regular
sessions in seven consecutive calendar years, as certified by the
clerk of the house in which the employee served, shall receive
service credit of six months for all regular sessions served, as
certified by the clerk of the house in which the employee served,
or shall receive service credit of three months for each regular
thirty-day session served prior to one thousand nine hundred
seventy-one: Provided, That employees of the state Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature
for its regular sessions and who have been or are employed during
the regular sessions in thirteen consecutive calendar years as
either temporary employees or full-time employees or a combination
thereof, as certified by the clerk of the house in which the
employee served, shall receive a service credit of twelve months
for each regular session served, as certified by the clerk of the
house in which the employee served: Provided, however, That the
amendments made to this subsection during the two thousand two
regular session of the Legislature only apply to employees of the
Legislature who are employed by the Legislature as either temporary
employees or full-time employees as of the first day of January,
two thousand two, or who become employed by the Legislature as
temporary or full-time employees for the first time after the first
day of January, two thousand two. Employees of the state
Legislature whose terms of employment are otherwise classified as
temporary and who are employed to perform services required by the
Legislature during the interim time between regular sessions shall
receive service credit of one month for each ten days served during the interim between regular sessions, which interim days shall be
cumulatively calculated so that any ten days, regardless of
calendar month or year, shall be calculated toward any award of one
month of service credit: Provided further, That no more than one
year of service may be credited to any temporary legislative
employee for all service rendered by that employee in any calendar
year and no days may be carried over by a temporary legislative
employee from one calendar year to another calendar year where the
member has received a full year credit for that year. Service
credit awarded for legislative employment pursuant to this section
shall be used for the purpose of calculating that member's
retirement annuity, pursuant to section twenty-two of this article,
and determining eligibility as it relates to credited service,
notwithstanding any other provision of this section. Certification
of employment for a complete legislative session and for interim
days shall be determined by the clerk of the house in which the
employee served, based upon employment records. Service of
fifty-five days of a regular session constitutes an absolute
presumption of service for a complete legislative session and
service of twenty-seven days of a thirty-day regular session
occurring prior to one thousand nine hundred seventy-one
constitutes an absolute presumption of service for a complete
legislative session. Once a legislative employee has been employed
during regular sessions for seven consecutive years or has become
a full-time employee of the Legislature, that employee shall
receive the service credit provided in this section for all regular
and interim sessions and interim days worked by that employee, as
certified by the clerk of the house in which the employee served, regardless of when the session or interim legislative employment
occurred: And provided further, That regular session legislative
employment for seven consecutive years may be served in either or
both houses of the Legislature.
(2) For purposes of this section, employees of the Joint
Committee on Government and Finance are entitled to the same
benefits as employees of the House of Delegates or the Senate:
Provided, That for joint committee employees whose terms of
employment are otherwise classified as temporary, employment in
preparation for regular sessions, certified by the Legislative
Manager as required by the Legislature for its regular sessions,
shall be considered the same as employment during regular sessions
to meet service credit requirements for sessions served.
(f) Any employee may purchase retroactive service credit for
periods of employment in which contributions were not deducted from
the employee's pay. In the purchase of service credit for
employment prior to the year one thousand nine hundred eighty-nine
in any department, including the Legislature, which operated from
the General Revenue Fund and which was not expressly excluded from
budget appropriations in which blanket appropriations were made for
the state's share of public employees' retirement coverage in the
years prior to the year one thousand nine hundred eighty-nine, the
employee shall pay the employee's share. Other employees shall pay
the state's share and the employee's share to purchase retroactive
service credit. Where an employee purchases service credit for
employment which occurred after the year one thousand nine hundred
eighty-eight, that employee shall pay for the employee's share and
the employer shall pay its share for the purchase of retroactive service credit: Provided, That no legislative employee and no
current or former member of the Legislature may be required to pay
any interest or penalty upon the purchase of retroactive service
credit in accordance with the provisions of this section where the
employee was not eligible to become a member during the years for
which he or she is purchasing retroactive credit or had the
employee attempted to contribute to the system during the years for
which he or she is purchasing retroactive service credit and such
contributions would have been refused by the board: Provided,
however, That a legislative employee purchasing retroactive credit
under this section does so within twenty-four months of becoming a
member of the system or no later than the last day of December, two
thousand eight, whichever occurs last: Provided further, That once
a legislative employee becomes a member of the retirement system,
he or she may purchase retroactive service credit for any time he
or she was employed by the Legislature and did not receive service
credit. Any service credit purchased shall be credited as six
months for each sixty-day session worked, three months for each
thirty-day session worked or twelve months for each sixty-day
session for legislative employees who have been employed during
regular sessions in thirteen consecutive calendar years, as
certified by the clerk of the houses in which the employee served,
and credit for interim employment as provided in this subsection:
And provided further, That this legislative service credit shall
also be used for months of service in order to meet the sixty-month
requirement for the payments of a temporary legislative employee
member's retirement annuity: And provided further, That no
legislative employee may be required to pay for any service credit beyond the actual time he or she worked regardless of the service
credit which is credited to him or her pursuant to this section:
And provided further, That any legislative employee may request a
recalculation of his or her credited service to comply with the
provisions of this section at any time.
(g)(1) Notwithstanding any provision to the contrary, the
seven consecutive calendar years requirement and the thirteen
consecutive calendar years requirement and the service credit
requirements set forth in this section shall be applied
retroactively to all periods of legislative employment prior to the
passage of this section, including any periods of legislative
employment occurring before the seven consecutive and thirteen
consecutive calendar years referenced in this section: Provided,
That the employee has not retired prior to the effective date of
the amendments made to this section in the two thousand two regular
session of the Legislature.
(2) The requirement of seven consecutive years and the
requirement of thirteen consecutive years apply retroactively to
all legislative employment prior to the effective date of the two
thousand six amendments to this section.
(h) The board of trustees shall grant service credit to any
former or present member of the State Police Death, Disability and
Retirement Fund who has been a contributing member of this system
for more than three years for service previously credited by the
State Police Death, Disability and Retirement Fund if the member
transfers all of his or her contributions to the State Police
Death, Disability and Retirement Fund to the system created in this
article, including repayment of any amounts withdrawn any time from the State Police Death, Disability and Retirement Fund by the
member seeking the transfer allowed in this subsection: Provided,
That there shall be added by the member to the amounts transferred
or repaid under this subsection an amount which shall be sufficient
to equal the contributions he or she would have made had the member
been under the Public Employees Retirement System during the period
of his or her membership in the State Police Death, Disability and
Retirement Fund plus interest at a rate determined by the board.
(i) The provisions of section twenty-two-h of this article are
not applicable to the amendments made to this section during the
two thousand six regular session.
§5-10-27. Preretirement death annuities.
(a) (1) Except as otherwise provided in this section, in the
event any member who has ten or more years of credited service or
any former member with ten or more years of credited service and
who is entitled to a deferred annuity, pursuant to section twenty-
one of this article, may at any time prior to the effective date of
his or her retirement, by written declaration duly executed and
filed with the board of trustees, in the same manner as if he or
she were then retiring from the employ of a participating public
employer, elect option A provided in section twenty-four of this
article and nominate a beneficiary whom the board finds to have had
an insurable interest in the life of the member. Prior to the
effective date of his or her retirement, a member may revoke his or
her election of option A and nomination of beneficiary and he or
she may again prior to his or her retirement elect option A and
nominate a beneficiary as provided in this subsection. Upon the
death of a member who has an option A election in force, his or her beneficiary, if living, shall immediately receive an annuity
computed in the same manner in all respects as if the same member
had retired the day preceding the date of his or her death,
notwithstanding that he or she might not have attained age sixty
years, and elected the said option A. If at the time of his or her
retirement a member has an option A election in force, his or her
election of option A and nomination of beneficiary shall thereafter
continue in force. As an alternative to annuity option A, a member
or former member may elect to have the preretirement death benefit
paid as a return of accumulated contributions in a lump sum amount
to any beneficiary or beneficiaries he or she chooses.
(2) In the event any member or former member, who first became
a member of the Public Employees Retirement System after the
effective date of amendments made to this section during the two
thousand six regular legislative session and who has ten or more
years of credited service and who is entitled to a deferred
annuity, pursuant to section twenty-one of this article: Dies
without leaving a surviving spouse; but leaves surviving him or her
a child who is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory
to the board; and has named the disabled child as sole beneficiary,
the disabled child shall immediately receive an annuity computed in
the same manner in all respects as if the member had: (A) Retired
the day preceding the date of his or her death, notwithstanding
that he or she might not have attained age sixty or sixty-two
years, as the case may be; (B) elected option A provided in section
twenty-four of this article; and (C) nominated his or her disabled
child as beneficiary. A member or former member with ten or more years of credited service, who does not leave surviving him or her
a spouse or a disabled child, may elect to have the preretirement
death benefit paid as a return of accumulated contributions in a
lump sum amount to any beneficiary or beneficiaries he or she
chooses.
(b)(1) In the event any member who has ten or more years of
credited service, or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: Dies; and leaves a
surviving spouse, the surviving spouse shall immediately receive an
annuity computed in the same manner in all respects as if the
member had: (A) Retired the day preceding the date of his or her
death, notwithstanding that he or she might not have attained age
sixty or sixty-two years, as the case may be; (B) elected option A
provided in section twenty-four of this article; and (C) nominated
his or her surviving spouse as beneficiary. However, the surviving
spouse shall have the right to waive the annuity provided in this
section: Provided, That he or she executes a valid and notarized
waiver on a form provided by the board and that the member or
former member attests to the waiver. If the waiver is presented to
and accepted by the board, the member or former member, may
nominate a beneficiary who has an insurable interest in the
member's or former member's life. As an alternative to annuity
option A, the member or former member may elect to have the
preretirement death benefit paid as a return of accumulated
contributions in a lump sum amount to any beneficiary or
beneficiaries he or she chooses in the event a waiver, as provided
in this section, has been presented to and accepted by the board.
(2) Whenever any member or former member who first became a
member of the retirement system after the effective date of the
amendments to this section made during the two thousand six regular
legislative session and who has ten or more years of credited
service and who is entitled to a deferred annuity, pursuant to
section twenty-one of this article: Dies; and leaves a surviving
spouse, the surviving spouse shall immediately receive an annuity
computed in the same manner in all respects as if the member had:
(A) Retired the day preceding the date of his or her death,
notwithstanding that he or she might not have attained age sixty or
sixty-two years, as the case may be; (B) elected option A provided
in section twenty-four of this article; and (C) nominated his or
her surviving spouse as beneficiary. However, the surviving spouse
shall have the right to waive the annuity provided in this section:
Provided, That he or she executes a valid and notarized waiver on
a form provided by the board and that the member or former member
attests to the waiver. If the waiver is presented to and accepted
by the Board, the member or former member may: (1) Elect to have
the preretirement death benefit paid in a lump sum amount, rather
than annuity option A provided in section twenty-four of this
article, as a return of accumulated contributions to any
beneficiary or beneficiaries he or she chooses; or (2) may name his
or her surviving child, who is financially dependent on the member
by virtue of a permanent mental or physical disability, as his or
her sole beneficiary to receive an annuity computed in the same
manner in all respects as if the member had: (A) Retired the day
preceding the date of his or her death, notwithstanding that he or
she might not have attained the age of sixty or sixty-two as the case may be; (B) elected option A provided in section twenty-four
of this article; and (C) nominated his or her disabled child as
beneficiary.
(c) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving surviving him or her a spouse; but (2) leaves surviving him
or her an infant child or children; and (3) does not have a
beneficiary nominated as provided in subsection (a) of this
section, the infant child or children are entitled to an annuity to
be calculated as follows: The annuity reserve shall be calculated
as though the member had retired as of the date of his or her
decease and elected a straight life annuity and the amount of the
annuity reserve shall be paid in equal monthly installments to the
member's infant child or children until the child or children
attain age twenty-one or sooner marry or become emancipated;
however, in no event shall any child or children receive more than
two hundred fifty dollars per month each. The annuity payments
shall be computed as of the date of the death of the member and the
amount of the annuity shall remain constant during the period of
payment. The annual amount of the annuities payable by this
section shall not exceed sixty percent of the deceased member's
final average salary.
(d) In the event any member or former member does not have ten
or more years of credited service, no preretirement death annuity
may be authorized, owed or awarded under this section, except as
provided in subdivision (4), subsection (a), section fifteen of this article as amended during the two thousand five regular
session of the Legislature.
§5-10-48. Reemployment after retirement; options for holder of
elected public office.
(a) The Legislature finds that a compelling state interest
exists in maintaining an actuarially sound retirement system and
that this interest necessitates that certain limitations be placed
upon an individual's ability to retire from the system and to then
later return to state employment as an employee with a
participating public employer while contemporaneously drawing an
annuity from the system. The Legislature hereby further finds and
declares that the interests of the public are served when persons
having retired from public employment are permitted, within certain
limitations, to render post-retirement employment in positions of
public service, either in elected or appointed capacities. The
Legislature further finds and declares that it has the need for
qualified employees and that in many cases an employee of the
Legislature will retire and be available to return to work for the
Legislature as a per diem employee. The Legislature further finds
and declares that in many instances these employees have
particularly valuable expertise which the Legislature cannot find
elsewhere. The Legislature further finds and declares that
reemploying these persons on a limited per diem basis after they
have retired is not only in the best interests of this state, but
has no adverse effect whatsoever upon the actuarial soundness of
this particular retirement system.
(b) For the purposes of this section: (1) "Regularly employed
on a full-time basis" means employment of an individual by a participating public employer, in a position other than as an
elected or appointed public official, which normally requires
twelve months per year service and/or requires at least one
thousand forty hours of service per year in that position; (2)
"temporary full-time employment or temporary part-time employment"
means employment of an individual on a temporary or provisional
basis by a participating public employer, other than as an elected
or appointed public official, in a position which does not
otherwise render the individual as regularly employed; (3) "former
employee of the Legislature" means any person who has retired from
employment with the Legislature and who has at least ten years
contributing service with the Legislature; and (4) "reemployed by
the Legislature" means a former employee of the Legislature who has
been reemployed on a per diem basis not to exceed one hundred
seventy-five days per calendar year.
(c) In the event a retirant becomes regularly employed on a
full-time basis by a participating public employer, payment of his
or her annuity shall be suspended during the period of his or her
reemployment and he or she shall become a contributing member to
the retirement system. If his or her reemployment is for a period
of one year or longer, his or her annuity shall be recalculated and
he or she shall be granted an increased annuity due to such
additional employment, said annuity to be computed according to
section twenty-two of this article. A retirant may accept
temporary full-time or temporary part-time employment from a
participating employer without suspending his or her retirement
annuity so long as he or she does not receive annual compensation
in excess of twenty thousand dollars.
(d) In the event a member retires and is then subsequently
elected to a public office or is subsequently appointed to hold an
elected public office, or is a former employee of the Legislature
who has been reemployed by the Legislature, he or she has the
option, notwithstanding subsection (c) of this section, to either:
(1) Continue to receive payment of his or her annuity while
holding such public office or during any reemployment of a former
employee of the Legislature on a per diem basis, in addition to the
salary he or she may be entitled to as such office holder or as a
per diem reemployed former employee of the Legislature; or
(2) Suspend the payment of his or her annuity and become a
contributing member of the retirement system as provided in
subsection (c) of this section. Notwithstanding the provisions of
this subsection, a member who is participating in the system as an
elected public official may not retire from his or her elected
position and commence to receive an annuity from the system and
then be reappointed to the same position unless and until a
continuous six-month period has passed since his or her retirement
from the position: Provided, That a former employee of the
Legislature may not be reemployed by the Legislature on a per diem
basis until at least sixty days after the employee has retired:
Provided, however, That the limitation on compensation provided by
subsection (b) of this section does not apply to the reemployed
former employee: Provided further, That in no event may
reemployment by the Legislature of a per diem employee exceed one
hundred seventy-five days per calendar year.
(e) A member who is participating in the system simultaneously
as both a regular, full-time employee of a participating public employer and as an elected or appointed member of the legislative
body of the state or any political subdivision may, upon meeting
the age and service requirements of this article, elect to retire
from his or her regular full-time state employment and may commence
to receive an annuity from the system without terminating his or
her position as a member of the legislative body of the state or
political subdivision: Provided, That the retired member shall not,
during the term of his or her retirement and continued service as
a member of the legislative body of a political subdivision, be
eligible to continue his or her participation as a contributing
member of the system and shall not continue to accrue any
additional service credit or benefits in the system related to the
continued service.
(f) Notwithstanding the provisions of section twenty-seven-b
of this article, any publicly elected member of the legislative
body of any political subdivision or of the state Legislature, the
Clerk of the House of Delegates and the Clerk of the Senate may
elect to commence receiving in-service retirement distributions
from this system upon attaining the age of seventy and one-half
years: Provided, That the member is eligible to retire under the
provisions of section twenty or section twenty-one of this article:
Provided, however, That the member elects to stop actively
contributing to the system while receiving such in-service
distributions.
(g) The provisions of section twenty-two-h of this article are
not applicable to the amendments made to this section during the
two thousand six regular session.