H. B. 2552
(By Delegates Spencer, Craig, Stemple,
Browning, Stephens, Duke and Canterbury)
[Introduced
January 26, 2007
; referred to the
Committee on Pensions and Retirement then Finance
.]
A BILL to amend and reenact §15-2-25a, §15-2-25b, §15-2-26,
§15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31,
§15-2-31a, §15-2-31b, §15-2-32, §15-2-33, §15-2-34, §15-2-35,
§15-2-37, §15-2-38, §15-2-39 and §15-2-44 of the Code of West
Virginia, 1931, as amended, all relating to the West Virginia
State Police Death, Disability and Retirement Fund; meaning of
terms; definitions; continuation of death, disability and
retirement fund; designating the Consolidated Public
Retirement Board as administrator of fund; retirement; awards
and benefits; leased employees; retirement annual annuity
adjustments; credit toward retirement for member's prior
military service; credit toward retirement when employee has
joined Armed Forces in time of armed conflict; qualified
military service; awards and benefits for disability incurred
in performance of duty; awards and benefits for disability due
to other causes; disability physical examinations; termination; application for disability benefit;
determinations; annual report on disability retirement
experience; retirant not to exercise police authority;
retention of group insurance; awards and benefits to
dependents of member when the member dies in performance of
duty; to dependents of a duty disability retirant; dependent
child scholarship and amount; awards and benefits to
dependents of employee when the employee dies from
nonservice-connected causes; awards and benefits to dependents
of retirant or after employee serves twenty years; refunds to
certain employees upon discharge or resignation; deferred
retirement; refunds to dependents upon death of member not
eligible for benefits; dependent child or children; and
federal law maximum benefit limitations.
Be it enacted by the Legislature of West Virginia:
That §15-2-25a, §15-2-25b, §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-31a, §15-2-31b,
§15-2-32, §15-2-33, §15-2-34, §15-2-35, §15-2-37, §15-2-38,
§15-2-39 and §15-2-44 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25a. Meaning of terms.
Any term used in this article relating to the Death,
Disability and Retirement Fund shall will have the same meaning as when used in a comparable context of the laws of the United States,
unless a different meaning as is clearly required. Any reference
in this article to the Internal Revenue Code means the Internal
Revenue Code, as it has been amended.
§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.
(a) "Agency" means the West Virginia State Police.
(b) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity
or other benefit payable by the fund.
(c) "Board" means the West Virginia Consolidated Public
Retirement Board created pursuant to article ten-d, chapter five of
this code.
(d) "Dependent child" means any unmarried child or children
born to or adopted by a member of the fund who is:
(1) Under the age of eighteen;
(2) After reaching eighteen years of age, continues as a
full-time student in an accredited high school, college,
university, business or trade school, until the child or children
reaches the age of twenty-three years; or
(3) Is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory
to the board.
(e) "Dependent parent" means the member's parent or
step-parent claimed as a dependent by the member for federal income
tax purposes at the time of the member's death.
(f) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer before the
twelfth day of March, one thousand nine hundred nine-four, and who is eligible to participate in the fund.
(g) "Fund," "plan," or "system" means the West Virginia State
Police Death, Disability and Retirement Fund.
(h) "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.
(i) "Member" means any person who has contributions standing
to his or her credit in the fund, and who has not yet entered into
retirement status.
(j) "Partially disabled" means an employee'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 employee from engaging in
other types of nonlaw-enforcement employment.
(k) "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.
(l) "Retirant" or "retiree" means any former member who is
receiving an annuity payable by the fund;
(m) "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.
(n) "Totally disabled" means an employee'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, an employee 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 an employee of the agency 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 employee lives; (2) a specific job vacancy exists; or
(3) the employee 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 is continued the Death, Disability and Retirement
Fund created for the benefit of members, retirants of the
department and any dependent dependents of a retired or deceased
member retirants or deceased members of the department fund.
(b) There shall will be deducted from the monthly payroll of
each member employee of the department and paid into the 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 will be deducted from the monthly payroll
of each member employee 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 will be deducted from the monthly payroll
of each member employee 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 employee of the department shall will
be paid by the State of West Virginia monthly into the fund out of
the annual appropriation for the department agency: Provided
further, That beginning on the first day of July, one thousand nine
hundred ninety-five, the state shall agency will pay thirteen
percent of the monthly salary of each member employee into the
fund: And provided further, That beginning on the first day of
July, one thousand nine hundred ninety-six, the state shall agency will pay fourteen percent of the monthly salary of each member
employee into the fund: And provided further, That on and after
the first day of July, one thousand nine hundred ninety-seven, the
state shall agency will pay fifteen percent of the monthly salary
of each member employee into the retirement fund. There shall will
also be paid into the fund amounts that have previously been
collected by the superintendent of the department agency on account
of payments to member employees 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 will be deposited in the State Treasury and the
Treasurer and Auditor shall board will keep a separate account
thereof. their respective books
(c) Notwithstanding any other provisions of this article,
forfeitures under the fund shall will 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 exempt from any
state or municipal tax; shall will not be subject to execution,
garnishment, attachment or any other process whatsoever, with the exception that the benefits or contributions under the fund shall
will 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 will be unassignable
except as is provided in this article. The Death, Disability and
Retirement fund shall will 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 amounts designated or set
aside by the awards, shall will be invested by the State Board of
Investments West Virginia Investment Management Board as provided
by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The retirement board shall retire any member of the
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
department, including military service credit granted under the
provisions of section twenty-eight of this article.
(b) The retirement board shall will retire any member of the
department fund who has lodged filed with the Executive Director of
the Consolidated Public Retirement board his or her voluntary
petition in writing for retirement, and:
(1) Has or shall will have completed twenty-five years of service as a member of the department fund (including military
service credit granted under the provisions of section twenty-eight
of this article);
(2) Has or shall will have attained the age of fifty years and
has or shall will have completed twenty years of service as a
member of the department fund (excluding military service credit
granted under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall will have
completed twenty years of service as a member of the department
fund (excluding military service credit granted under section
twenty-eight of this article.)
(c) (b) 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 will be
paid from the Death, Disability and Retirement fund in equal
monthly installments during the his or her 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 employee during the whole
period of service as a member an employee of the department agency;
or
(2) The sum of six thousand dollars.
When a member has or shall will have served twenty years or
longer but less than twenty-five years as a member of the
department fund and is retired under any of the provisions of this
section before he or she has attained the age of fifty years,
payment of monthly installments of the amount of retirement award
to the member shall will commence on the day following 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.
(c) A member meeting the age and service requirements of this
section who terminates employment at 2400 hours may begin to
receive retirement annuity payments immediately upon termination of
employment. Any member meeting the age and service requirements of
this section who terminates employment at a time other than 2400
hours will receive a pro rata share of a full day's amount for that
day. Upon receipt of properly executed forms from the agency and
the member, the board will process the member's retirement petition
and commence annuity payments as soon as administratively feasible.
(d) Any individual who is a leased employee is not 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.
(a) Every member retirant of the department fund 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 retirant of the department fund 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 beneficiary 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 The
adjustments may not be retroactive. Yearly adjustments shall will
begin upon the first day of July of each year. The annuity
adjustments shall will be awarded and paid to the members retirants
or beneficiaries from the Death, Disability and Retirement fund in
equal monthly installments while the member is in status of retirement or payment of beneficiary award. The annuity
adjustments shall will supplement the retirement awards and
benefits as provided in this article.
(b) Any member retirant or beneficiary who receives a benefit
pursuant to the provisions of section twenty-nine, thirty,
thirty-three or thirty-four of this article shall will 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 retirant has been retired for less than one year or
if the beneficiary has been in receipt of beneficiary payments 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 employee 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 the Armed Forces when the
member employee has been called to active full-time duty and has
received no compensation during the period of such the duty from any person other than the Armed Forces.
(b) Any member of the department fund who has previously
served on active military duty is entitled to and shall will
receive credit on the minimum period of service required by law for
retirement pay from the service of the West Virginia State Police
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 not receiving no benefits credit from
any other retirement system administered by the board 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 fund for twenty years exclusive
of his or her active military duty.
(c) The amount of retirement pay to which any member is
entitled shall will 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 agency equal to the
average monthly salary which he or she actually received from the department agency for his or her total service with the department
agency exclusive of the active military duty. The superintendent
shall will transfer and pay into the Death, Disability and
Retirement fund from moneys appropriated for the department agency,
a sum equal to eighteen percent of the aggregate of the salaries on
which the retirement pay of all members has been calculated and
determined for their periods of active military duty. In addition,
any person who, while a member an employee of the department agency
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
the Congress or by executive or other order of the President, is
entitled to and shall will receive credit on the minimum period of
service required by law for retirement pay from the service of the
West Virginia State Police for a period equal to the full time he
or she has or shall will, pursuant to the commission, enlistment, induction or call, 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 has presented himself or herself to the
superintendent and offered to resume service as an active member
employee of the department agency; 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 member employee
is entitled shall will be calculated and determined as if the
member employee has continued in the active service of the
department agency at the rank or grade to him or her appertaining
at the time of the commission, induction, enlistment or call,
during a period coextensive with the time the member employee
served with the Armed Forces pursuant to the commission, induction,
enlistment or call. The superintendent of the department agency
shall will transfer and pay each month into the Death, Disability
and Retirement fund from moneys appropriated for the department agency a sum equal to eighteen percent of the aggregate of salary
which all members employees would have been entitled to receive had
they continued in the active service of the department agency
during a period coextensive with the time the member employee
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 will 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 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 may 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 department fund who has not yet entered
retirement status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members employees of the department agency and or
incurred pursuant to or while the member employee was engaged in
the performance of his or her duties as a member an employee of the
department shall agency will, if, in the opinion of the retirement
board, he or she is by reason of that cause probably permanently
unable to perform adequately the duties required of him or her as
a member an employee of the department agency, 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 is entitled to receive annually and
there shall be paid to the member from the Death, Disability and
Retirement fund in equal monthly installments during the his or her
lifetime; of the member; or until the member attains the age of
fifty or until the disability eligibility sooner terminates, 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 department for twelve
months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit five and
one-half percent of the total salary which would have been earned
during twenty-five years or actual service if more than twenty-five years in the fund based on the average earnings of the retirant
while employed as an employee of the agency; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the
benefit provided in subsection (c), section twenty-seven of this
article as it would apply to his or her aggregate career earnings
from the department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty shall be considered 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 A
retirant 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
retirant 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 the
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 resulting
from any occupational risk or hazard inherent in or peculiar to the
services required of members employees of the department agency and
or incurred pursuant to or while the member was engaged in the
performance of his or her duties as a member an employee of the
department agency, the member is entitled to receive annually and
there shall be paid to the member will be paid from the Death,
Disability and Retirement fund in equal monthly installments during
the his or her lifetime of the member or until the disability
eligibility sooner terminates, an amount equal to the amount of the
salary received by the member in the preceding twelve-month
employment period eight and one-half percent of the total salary
which would have been earned by the employee during twenty-five
years or actual service if more than twenty-five years of service
in the fund based on the average earnings of the retirant while
employed as an employee of the agency: Provided, That in no event
may the amount be less than fifteen thousand dollars per annum,
unless otherwise required by section forty of this article.
Provided, however, That if the member had not been employed with
the department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of
determining the benefit
(d) The superintendent may expend moneys from funds
appropriated for the department agency 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 or disability
retirant of the department who has or becomes 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 employees of the
department agency and or incurred pursuant to or while such the
member was or shall will be engaged in the performance of duties as
a member an employee of the department agency. Whenever the
superintendent determines that any disabled member or retirant is
ineligible to receive any of the aforesaid benefits at public
expense, the superintendent shall will, at the request of the
disabled member or retirant, refer the 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 approved by the West
Virginia Insurance Commission.
(e) Any member awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and receipt of properly executed forms from the agency and the member,
the board will process the member's disability retirement benefit
and commence annuity payments as soon as administratively feasible.
(f) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-30. Awards and benefits for disability due to other causes.
(a) If any member while in employee who has served less than
twenty years and who remains in the active service of the
department agency has, in the opinion of the retirement board,
become permanently partially or totally disabled to the extent that
the member employee cannot adequately perform the duties required
of a member an employee of the department agency 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, the member shall employee will be retired by the retirement
board. The member employee is entitled to receive annually and
there shall be paid to the member while in status of retirement
will be paid from the Death, Disability and Retirement fund in
equal monthly installments during the lifetime of such member a
period equal to one-half the time he or she served as an employee
of the agency or until the disability eligibility sooner
terminates, 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 department for twelve months prior to the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit five and one-half
percent of the total salary which would have been earned during
twenty-five years of service. At the end of the one-half time
period of service, the benefit payable for the remainder of the
retirant's life is an annual sum paid in monthly installments equal
to one-half the base salary received by the retirant from the
agency in the preceding twelve month period immediately prior to
the disability award: Provided, That if the retirant had not been
employed with the agency for twelve months immediately prior to the
disability award, the amount of monthly salary will be annualized
for the purpose of determining the benefit.
(b) If the member employee, at the time of retirement under
the terms of this section, has served twenty years or longer as a
member an employee of the department agency, the member employee is
entitled to receive annually and there shall be paid to the member
will be paid from the Death, Disability and Retirement fund in
equal monthly installments, commencing on the date the member
employee is retired and continuing during the his or her lifetime
of the 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 department for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of
determining the benefit while in status of retirement or until the
disability eligibility sooner terminates, a sum equal to five and
one-half percent of the aggregate of salary paid to the retirant
through the day immediately preceding his or her disability award,
to be determined in the manner provided by subsection (c), section
twenty-seven of this article.
(c) An employee awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and
receipt of properly executed forms from the agency and the
employee, the board will process the disability retirement benefit
and commence annuity payments as soon as administratively feasible.
(d) 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 in subsection (c), section twenty-seven of this article as
it would apply to his or her aggregate career earnings from the
department through the day immediately preceding his or her
disability. The recalculation of benefit upon a member attaining
age fifty shall be considered 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. Disability physical examinations; termination.
The Consolidated Public Retirement board may require any
member retirant who has been 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 the examination including hospital,
laboratory, X ray, medical and physicians' fees to be paid out of
funds appropriated to defray the current expense of the department
agency, and a report of the findings of the physician or physicians
shall will be submitted in writing to the Consolidated Public
Retirement board for its consideration. If, from the report or
from the report and hearing on the report, the retirement board is
of the opinion and finds that the disabled member retirant has
recovered from the disability to the extent that he or she is able
to perform adequately the duties of a law-enforcement officer, the
board shall will order that all payments from the Death, Disability
and Retirement fund to that disabled retirant be terminated. If,
from the report or the report and hearing on the report, the board
is of the opinion and finds that the disabled member retirant has
recovered from his or her previously determined probable permanent
disability to the extent that he or she is able to engage in
gainful employment but remains unable to adequately perform the
duties of a law-enforcement officer, the board shall will order the payment, in monthly installments of an amount equal to two thirds
of the salary, in the case of a member retirant 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 retirant retired under
the provisions of section thirty of this article, excluding any
compensation paid for overtime service, for the twelve-month
employment period immediately preceding the disability award:
Provided, That if the member retirant had not been employed with
the department fund for twelve months immediately prior to the
disability award, the amount of monthly salary shall will 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 under the provisions of section twenty-nine, by an employee
under the provisions of section thirty or, if the member or
employee is under an incapacity, by a person acting with legal
authority on the member's or the employee'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 will notify the superintendent of the department agency
that an application has been filed: Provided, That when, in the
judgment of the superintendent, a member an employee is no longer
physically or mentally fit for continued duty as a member an
employee of the West Virginia State Police and the member employee has failed or refused to make application for disability benefits
under this article, the superintendent may petition the board to
retire the member employee 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 will forward to the board a statement
certifying the duties of the member's employee's employment,
information relating to the superintendent's position on the work
relatedness of the member's employee's alleged disability, complete
copies of the member's employee's medical file and any other
information requested by the board in its processing of the
application, if this information is requested timely.
(b) The board shall will propose legislative rules in
accordance with the provisions of article three, chapter
twenty-nine-a of this code relating to the processing of
applications and petitions for disability retirement under this
article.
(c) The board shall will notify the 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 will 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 will
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.
(d) (1) The board shall will require each disability benefit
recipient to file an annual certified statement of earnings, to
include the amount and source of earnings, and any other
information required in legislative rules which may be proposed by
the board. The board may waive or modify the requirement that a
recipient of total disability benefits file the annual statement of
earnings if the board's physician certifies that the recipient's
disability is ongoing. The board shall will annually examine the
information submitted by each recipient. If a disability retirant
refuses to file a statement and other information required by the
board, the disability benefit shall will be suspended, after notice
and opportunity to be heard, until the statement and information
are filed.
(2) The board shall will annually examine any information
available from the State Tax Commissioner on all recipients of
disability benefits pursuant to article ten, chapter eleven of this
code.
(e) (1) A nonblind recipient earning annual income exceeding
the equivalent of eight hundred sixty dollars per month in the year two thousand six, after impairment-related work expenses are
substracted subtracted from earnings, has engaged in substantial
gainful activity. A statutorily blind recipient has engaged in
substantial gainful activity in the year two thousand six if the
recipient has earned annual income exceeding the equivalent of one
thousand four hundred fifty dollars per month after
impairment-related work expenses are substracted subtracted from
earnings.
(2) The substantial gainful activity dollar limit shall will
be automatically adjusted annually to correspond to the dollar
limit as established and published by the United States Social
Security Administration for each year in accordance with methods
published in the Federal Register (FR6582905 December 29, 2000) and
similar methods used by the Social Security Administration applying
the average annual wage index.
(3) If after review of a disability retirant's annual
statement of earnings, tax records or other financial information,
as required or otherwise obtained by the board, the board
determines that earnings of the recipient of total disability
benefits in the preceding year are sufficient to show that the
recipient engaged in substantial gainful activity, the disability
retirant's disability annuity shall will be terminated by the
board, upon recommendation of the board's disability review
committee and after notice and opportunity to be heard, on the first day of the month following the board's action.
(4) If the board obtains information that a recipient of
partial disability benefits is employed as a law-enforcement
officer, upon recommendation of the board's disability review
committee and after notice and an opportunity to be heard, the
board shall will terminate the recipient's disability benefits on
the first day of the month following the board's action.
(f) Any person who wishes to reapply for disability retirement
and whose disability retirement has been terminated by the board
pursuant to this section may do so within ninety days of the
effective date of termination: Provided, That any person
reapplying for disability benefits shall will undergo an
examination at the applicant's expense by an appropriate medical
professional selected by the board as part of the reapplication
process.
(g) Notwithstanding other provisions in this section, any
person whose disability retirement has been terminated by the board
pursuant to this section may apply for regular retirement benefits
upon meeting the eligibility requirements of age and years of service.
§15-2-31b. Annual report on disability retirement experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the board shall will prepare
a report for the preceding fiscal year of the disability retirement
experience of the West Virginia State Police Death, Disability and Retirement Fund. The report shall will 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 West Virginia State Police employees who are
members of the fund. The report shall will 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. Retirant not to exercise police authority; retention of
group insurance.
A member who is retired retirant may not while in retirement
status, exercise any of the powers conferred upon active members
employees by section twelve of this article; but is entitled to
receive free of cost to the member retirant and retain as his or
her separate property one complete standard uniform prescribed by
section nine ten of this article: Provided, That the uniform may
be worn by a member in retirement status only retirant on occasions
prescribed by the superintendent. The superintendent shall will
maintain at public expense for the benefit of all members in
retirement status retirants that group life insurance mentioned in
section ten of this article. The superintendent, when he or she is
of opinion that the public safety shall will require, may recall to
active duty during any period determined by the superintendent, any member retiree who is retired under the provisions of section
twenty-seven of this article, provided the consent of the member
retiree to reassume duties of active membership shall will first be
had and obtained. When any member in retirement Any retirant who
resumes status of active membership the member, during the period
the member remains in active status, is not entitled to receive
retirement pay or benefits, but in lieu thereof, is entitled to
receive that rate of salary and allowance pertinent to the rank or
grade previously held by the member when retired retirant. When
the member former retirant is released from active duty, he or she
shall will reassume the status of retirement and shall thereupon
will be entitled to receive appropriate benefits as provided by
this article: Provided, That the amount of the benefits shall will
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 the
member dies in performance of duty; to dependents of
a duty disability retirant; dependent child
scholarship and amount.
(a) The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or loses 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 employees while the member was or is engaged in the performance of his or her duties as a member an
employee of the department agency, or if the member a retirant dies
from any cause after having been retired pursuant to the provisions
of section twenty-nine of this article, the surviving spouse or
other dependent is entitled to receive and shall will 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 the greater of 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 department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of
determining the benefit five and one-half percent of the total
salary which was or would have been earned by the deceased member
or duty disability retirant during twenty-five years of service
based on the average earnings of the member or duty disability
retirant while employed by the agency; or
(2) The sum of six thousand dollars.
(b) In addition, thereto the surviving spouse is entitled to
receive and there shall will be paid to the surviving spouse one
hundred dollars monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there
shall will 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 is no surviving spouse and no dependent child or children,
there shall will be paid annually in equal monthly installments
from the Death, Disability and Retirement fund to the dependent
parents of the deceased member or retirant 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.
(c) Any person qualified as a surviving dependent child under
this section, in addition to any other benefits due under this or
other sections of this article, is 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 will 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 rules as
provided by the board, 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.
(d) 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 benefits
for those 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 occurs A surviving spouse or
dependent of an employee meeting the requirements of this section
will be entitled to receive beneficiary payments on the first day
following the date the deceased employee is removed from payroll by
the agency. A surviving spouse or dependent of a member who is not
currently an employee meeting the requirements of this section will
be entitled to receive beneficiary payments on the first day
following the date of the deceased member's death. A surviving
spouse or dependent of a retirant meeting the requirements of this
section will be entitled to receive beneficiary payments on the first day of the month following the date of the deceased
retirant's death. Upon receipt of properly executed forms from the
agency and the surviving spouse or dependent, the board will
process the surviving spouse or dependent benefit as soon as
administratively feasible.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-34. Awards and benefits to dependents of employee when the
employee dies from nonservice-connected causes.
(a) In any case where a member while in active service If an
employee of the department agency, before having completed twenty
years of service as a member employee of the department agency,
dies 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 will be paid annually in equal monthly
installments from the Death, Disability and Retirement fund to the
surviving spouse of the member employee during his or her lifetime,
or until such time as the 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 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. The benefit
shall become immediately available upon the death of the member two and three-quarters percent of the total salary which would have
been earned by the employee during twenty-five years of service
with the agency based on his or her average earnings while employed
with the agency. If there is no surviving spouse, or the surviving
spouse dies or remarries, there shall will 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 is no surviving spouse
and no dependent child or children, there shall will be paid
annually in equal monthly installments from the fund to the
dependent parents of the deceased member employee 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 is
entitled to receive during his or her lifetime one-half the amount
which both parents, if living, would have been entitled to receive.
(b) A surviving spouse or dependent meeting the requirements
of this section will be entitled to receive beneficiary payments on
the first day following the date the deceased employee is removed
from payroll by the agency. Upon receipt of properly executed
forms from the agency and the surviving spouse or dependent, the
board will process the surviving spouse or dependent benefit as
soon as administratively feasible.
(b)(c) For the purposes of this section, the term "salary" does not include compensation paid for overtime service.
§15-2-35. Awards and benefits to dependents of retirant or after
an employee serves twenty years.
(a) When any member employee of said department the agency has
heretofore completed or hereafter shall complete twenty years of
service or longer as a member an employee of said department the
agency and has died or shall die dies from any cause or causes
other than those specified in this article before having been
retired by the retirement board, and when a member retirant in
retirement status has died or shall die dies after having been
retired by the retirement board under the provisions of this
article, there shall will be paid annually in equal monthly
installments from said the fund to the surviving spouse of said
member the employee or retirant. commencing on the date of the
death of said member and continuing during the lifetime or until
remarriage of said the surviving spouse, an amount equal to
three-fourths the retirement benefits said the deceased member
retirant was receiving or would have been entitled to receive while
in status of retirement, or would have been entitled to receive to
the same effect as if such member the employee 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 the surviving spouse shall will be entitled to receive and there shall be paid to such
surviving spouse from said will be paid from the fund the sum of
one hundred dollars monthly for each dependent child or children.
If such the surviving spouse die dies, or remarry remarries, or if
there be is no surviving spouse, there shall will be paid monthly
from said the fund to each dependent child or children of said the
deceased member employee or retirant a sum equal to twenty-five
percent of the surviving spouse's entitlement. If there be is no
surviving spouse or no surviving spouse eligible to receive
benefits and no dependent child or children, there shall will be
paid annually in equal monthly installments from said the fund to
the dependent parents of said the deceased member employee or
retirant 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 is one
dependent parent surviving, such the parent shall will be entitled
to receive during his or her lifetime one half the amount which
both parents, if living, would have been entitled to receive.
(b) A surviving spouse or dependent of an employee meeting the
requirements of this section will be entitled to receive
beneficiary payments on the first day following the date the
deceased employee is removed from payroll by the agency. A
surviving spouse or dependent of a retirant meeting the
requirements of this section will be entitled to receive beneficiary payments on the first day of the month following the
date of the deceased retirant's death. Upon receipt of properly
executed forms from the agency and the surviving spouse or
dependent, the board will process the surviving spouse or dependent
benefit as soon as administratively feasible.
§15-2-37. Refunds to certain employees upon discharge or
resignation; deferred retirement.
(a) Any member employee who is discharged by order of the
superintendent or otherwise terminates employment with the
department agency, at the written request of the member to the
retirement board, is 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 State Police
Death, Disability and Retirement fund plus four percent interest
compounded thereon calculated annually as provided and required by
this article.
(b) Any member withdrawing contributions who may thereafter be
reenlisted as a member of the department reemployed by the agency
shall will not receive any prior service credit in the fund on
account of former service. unless following reenlistment the
member The employee may redeposits 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 will receive the same
credit on account of his or her former service as if no refund had
been made. He or she shall will become a member of the retirement
system established in article two-a of this chapter.
(c) Every member employee who completes ten years of service
with the department agency is eligible, upon separation of
employment, with the 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 is 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 State Police Death, Disability and Retirement will be paid from
the 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 employee during the whole period of service as a member an employee of the department agency;
or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring
(d) A member may choose, in lieu of a life annuity available
under the provisions of subsection (c), an annuity in a reduced
amount payable during the member's lifetime, with one half of the
reduced monthly amount paid to his or her surviving spouse if any,
for the spouse's remaining lifetime after the death of the member
retirant. Reduction of this monthly benefit amount shall will be
calculated to be of equal actuarial value to the life annuity the
member could otherwise have chosen.
(e) A member retiring under the provisions of this section may
receive retirement annuity payments on the day following his or her
attaining age sixty-two. Upon receipt of properly executed forms
from the agency and the member, the board will process the member's
retirement benefit and commence annuity payments as soon as
administratively feasible.
§15-2-38. Refund to dependents upon death of member not eligible
for benefits.
If any member while in active status shall die dies
after
having
served two full years or longer
as a member of said
department and the retirement board shall be
is of the opinion after hearing thereon that the dependent or dependents of said the
member are ineligible under the provisions of this article to
receive any of the benefits provided herein, the superintendent
shall board will refund to the spouse, if surviving, but if not
surviving, to the children of such the member, and if there be is
no surviving spouse or children, to the dependent parents, a sum
equal to the aggregate of the principal amount of all moneys
deducted from the salary of such the member and paid into such the
fund. as aforesaid, and If there is no surviving spouse or
children or dependent parent or parents, then the same shall remain
in the fund a sum equal to the aggregate of the principal amount of
all moneys deducted from the salary of the member and paid into the
fund will be paid to the member's estate. Whenever any such a
refund shall be is made to the surviving spouse or other dependents
of such the deceased member, the surviving spouse or other
dependents shall will not be entitled to any other rights or
benefits on account of said from the fund. under the provisions of
this article
§15-2-39. Dependent child or children.
In any case where under the terms of this article benefits are
provided for "dependent child or children," such phrase shall mean
any child or children born to or adopted by a member of the
department under the age of eighteen or where such child or
children after reaching eighteen years of age continues as a full-time student in an accredited high school, college,
university, business or trade school, until such child reaches the
age of twenty-three years or where such child or children is an
invalid as long as such child or children remains an invalid, such
benefits provided for shall be paid. Benefits provided under the
terms of this article for "dependent child or children" shall
dependent child or children, the benefits will be paid for so long
as they continue to meet the foregoing qualifications and no longer
provided under the provisions of this article.
§15-2-44. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall will 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 will exceed those limitations. The extent to
which any annuity or other benefit payable under this fund shall
will 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 will be determined by the board in a manner that
shall will maximize the aggregate benefits payable to the member.
If the reduction is under this fund, the board shall will advise affected members or retirants of any additional limitation on the
annuities required by this section.
NOTE: The purpose of this bill is to add definitions of
"agency," "beneficiary," "board," "dependent child," "dependent
parent," "employee," "retirant" and "surviving spouse" to the West
Virginia State Police Death, Disability and Retirement fund; to
amend the definition of "member;" to clarify the Consolidated
Public Retirement Board's role in the administration of the fund;
to delete statutory provisions determined unconstitutional by the
West Virginia State Supreme Court of Appeals (Booth v. Sims, 456
S.E.2d 167 (W.Va. 1994)); to clarify that members may receive
service credit for active duty in the Armed Forces under one
retirement system administered by the board; to clarify that an
employee's disability must have resulted from any occupational risk
or hazard inherent in or peculiar to services required of employees
of the fund or incurred while the employee was engaged in the
performance of his or her duties; to clarify the start date for
payment of retirement and beneficiary benefits; to correct code
references; and to delete obsolete provisions from the article.
Obsolete provisions contained in §15-2-26 remain for
historical reference only.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.