COMMITTEE SUBSTITUTE
FOR
H. B. 2924
(By Delegates Spencer, Barker, Iaquinta, Williams, Pethtel and
Azinger)
(Originating in the Committee on Finance)
[March 26, 2009]
A BILL to amend and reenact §5-10-15 of the Code of West Virginia,
1931, as amended; and to amend and reenact §51-9-4 and §51-9-6
of said code; all relating to providing up to twenty-four
months of military service credit for the time served in
active military duty to any qualified member of the West
Virginia Public Employees Retirement Act and the Retirement
System for Judges hired for the first time on or after July 1,
2009 or for any qualified member who is not vested on June 30,
2009.
Be it enacted by the Legislature of West Virginia:
That §5-10-15 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §51-9-4 and §51-9-6 of said code
be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS OF AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-15. Military service credit; qualified military service.
(a)
(1) The Legislature recognizes the men and women of this
state who have served in the Armed Forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit
upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active military duty in the Armed Forces of the
United States
when the duty was during any period of compulsory
military service or during a period of armed conflict, as defined
in this section upon members who are eligible for public employees
retirement benefits whether or not he or she was a public employee
at the time of entering the military service.
(2) In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or
enters the active service of the Armed Forces of the United States
during any period of compulsory military service or during a period
of armed conflict shall receive credited service for the time spent
in the Armed Forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry into military service
during any period of compulsory military service or during periods
of armed conflict.
(3) Any member of the retirement system who enters the active service of the Armed Forces of the United States during any period
of compulsory military service or during a period of armed conflict
shall receive the credit provided by this section regardless of
whether he or she was a public employee at the time of entering the
military service.
(4) If a member of the Public Employees Retirement System
enters the active service of the United States and serves during
any period of compulsory military service or during any period of
armed conflict, during the period of the armed service and until
the member's return to the employ of a participating public
employer, the member's contributions to the retirement system is
suspended and any credit balance remaining in the member's deposit
fund shall be accumulated at regular interest: Provided, That
notwithstanding any provision in this article to the contrary, if
an employee of a participating political subdivision serving in the
military service during any period of compulsory military service
or armed conflict has accumulated credited service prior to the
last entry into military service, in an amount that, added to the
time in active military service while an employee equals nine or
more years, and the member is unable to resume employment with a
participating employer upon completion of duty due to death during
or as a result of active service, all time spent in active military
service, up to and including a total of five years, is considered
to be credited service and death benefits are vested in the member:
Provided, however, That the active service during the time the
member is an employee must be as a result of an order or call to duty, and not as a result of volunteering for assignment or
volunteering to extend the time in service beyond the time required
by order or call.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of
armed conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the board
of trustees have final power to determine the period.
(7) The Board may consider a petition by any member whose tour
of duty, in a territory that would reasonably be considered hostile
and dangerous, was extended beyond the period in which an armed
conflict was officially recognized, if that tour of duty commenced
during a period of armed conflict, and the member was assigned to
duty stations within the hostile territory throughout the period
for which service credit is being sought. The Board has the
authority to evaluate the facts and circumstances peculiar to the
petition, and rule on whether granting service credit for the
extended tour of duty is consistent with the objectives of this
article. In that determination, the board may grant full credit for
the period under petition subject to the limitations otherwise
applicable, or to grant credit for any part of the period as the
board considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of this section.
(b) For the purposes of this section, the following
definitions apply:
(1) "Period of armed conflict" means the Spanish-American War,
the Mexican border period, World War I, World War II, the Korean
conflict, the Vietnam era, the Persian Gulf War and any other
period of armed conflict by the United States, including, but not
limited to, those periods sanctioned by a declaration of war by the
United States Congress or by executive or other order of the
President.
(2) "Spanish-American War" means the period beginning on the
twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, and includes the Philippine Insurrection, the Boxer Rebellion,
and in the case of a veteran who served with the United States
Military forces engaged in hostilities in the Moro Province, means
the period beginning on the twenty-first day of April, one thousand
eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending
on the fifth day of April, one thousand nine hundred seventeen, in
the case of a veteran who during the period served in Mexico, on
its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day
of April, one thousand nine hundred seventeen, and ending on the eleventh day of November, one thousand nine hundred eighteen, and
in the case of a veteran who served with the United States Military
forces in Russia, means the period beginning on the sixth day of
April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on
the thirty-first day of December, one thousand nine hundred
forty-six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and
ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the
twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(1) "Active military duty" means full-time duty in the active
military service of the United States Army, Navy, Air Force, Coast
Guard or Marine Corps. Such term does not include regularly required training or other duty performed by a member of a reserve
component or National Guard unless the member can substantiate that
he or she was called into the active military service of the United
States.
(2) "Actuarial reserve lump sum purchase amount" means the
purchase annuity rate multiplied by the purchase accrued benefit.
The purchase annuity rate is the actuarial lump sum annuity factor
calculated on a monthly basis based on the following actuarial
assumptions: interest rate of seven and a half percent; mortality
of the 1971 group annuity mortality table, fifty percent blended
male and female rates, applied on a unisex basis to all members; if
purchase age is under age sixty, a deferred annuity factor with
payments commencing at age sixty; and if purchase age is sixty or
over, an immediate annuity factor with payments starting at the
purchase age. The purchase accrued benefit is two percent times
the purchase military service times the purchase average monthly
salary. The purchase military service is the amount of military
service being purchased by the employee as a fraction of a year up
to a one year maximum. The purchase average monthly salary is the
final average monthly salary of the employee at the beginning of
the month which is three months prior to the purchase month as if
the employee terminated employment on that date. The purchase
month is the month in which the employee deposits the actuarial
reserve lump sum purchase amount into the plan trust fund in full
payment of the service being purchased. The purchase age is the
attained age of the employee in years and completed months as of the first day of the purchase month.
(3) "Compulsory military service" means service during the
period of time in which the federal Selective Service Act was in
effect.
(4) "Korean conflict" means the period beginning on June 27,
1950, and ending on January 31, 1955.
(5) "Month of service" means any month in which the member
served in active military duty for at least one half of the
calendar month.
(6) "Operation Noble Eagle" means the period beginning on
September 11, 2001, and ending on June 30, 2009.
(7) "Period of armed conflict" means World War I, World War
II, the Korean conflict, the Vietnam era, the Persian Gulf War, and
Operation Noble Eagle.
(8) "Persian Gulf War" means the period beginning on August 2,
1990, and ending on April 11, 1991.
(9) "Selective Service Act" means the period beginning on
September 16, 1940, and ending on July 1, 1973.
(10) "Vested" means five or more years of contributory service
for which contributions have been made and remain on deposit. Any
withdrawn contributions that have been reinstated in full by June
30, 2009 shall apply toward vesting.
(11) "The Vietnam era" means the period beginning on February
28, 1961, and ending on May 7, 1975, in the case of a veteran who
served in the Republic of Vietnam during that period; and August 5,
1964, and ending on May 7, 1975, in all other cases.
(12) "World War I" means the period beginning on April 6,
1917, and ending on November 11, 1918, and in the case of a veteran
who served with the United States Military forces in Russia, means
the period beginning on April 6, 1917, and April 1, 1920.
(13) "World War II" means the period beginning on December 7,
1941, and ending on December 31, 1946.
(C) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. No military service
credit may be used in more than one retirement system administered
by the Consolidated Public Retirement Board and once used in any
system, may not be used again in any other system. The Board is
authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the board in section one, article ten-d of this chapter, may
promulgate rules relating to contributions, benefits and service
credit to comply with Section 414(u) of the Internal Revenue Code.
(c) Members who are eligible to receive credited service for
periods of active military duty must substantiate to the retirement
board:
(1) That the member has served one or more periods of active
duty as substantiated by a federal form DD-214;
(2) That the member has been honorably discharged from active military duty as substantiated by a federal form DD-214; and
(3) That the member is receiving no benefits from any other
governmental retirement system, except those benefits provided by
federal law, for his or her active military duty.
(d) The retirement board may not credit any member with more
than twelve months of service in any calendar year; and may not
grant any member duplicate credit for service for a period of
compulsory military service which falls under a period of armed
conflict.
(e) For any member hired for the first time prior to July 1,
2009 and who is vested in the Public Employees Retirement System on
June 30, 2009, he or she shall receive the greater of:
(1) Up to sixty months of service for any time served in
active military duty during any period of compulsory military
service or during any period of armed conflict; or
(2) Up to twenty-four months of service for any time served in
active military duty: Provided, That any employee may purchase an
additional twelve months of service for any time served in active
military duty that otherwise has not been credited by paying the
actuarial reserve lump sum purchase amount within three years from
the effective date of this section: Provided, however, That any
vested member not employed on the effective date of this section
may only purchase an additional twelve months of service for any
time served in active military duty that otherwise has not been
credited upon his or her initial reemployment after the effective
date of this section by paying the actuarial reserve lump sum purchase amount after one year of reemployment, but within three
years from initial reemployment:
(f) Notwithstanding any provision in this article to the
contrary, if an employee of a participating political subdivision
serving in the military service during any period of compulsory
military service or armed conflict has accumulated credited service
prior to the last entry into military service, in an amount that,
added to the time in active military service while an employee
equals nine or more years, and the member is unable to resume
employment with a participating employer upon completion of duty
due to death during or as a result of active service, all time
spent in active military service, up to and including a total of
five years, is considered to be credited service and death benefits
are vested in the member: Provided, That the active military
service during the time the member is an employee must be as a
result of an order or call to duty, and not as a result of
volunteering for assignment or volunteering to extend the time in
service beyond the time required by order or call.
(g) For any member hired for the first time on or after July
1, 2009, or for any member who is not vested on June 30, 2009, he
or she shall receive up to twenty-four months of service for any
time served in active military duty: Provided, That any employee
may purchase an additional twelve months of service for any time
served in active military duty that otherwise has not been credited
by paying the actuarial reserve lump sum purchase amount within
three years after becoming vested.
(
h) The retirement board may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of
this section.
(i) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code.
(j) The provisions of section twenty-two-h of this article are
not applicable to the amendments made to this section during the
2009 regular session.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES.
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
retirement disallowed; leased employees; military
service credit; maximum allowable and qualified
military service; qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve
as a judge of any court of record of this state shall pay into the
Judges' Retirement Fund six percent of the salary received by such
person out of the State Treasury
: Provided, That when a judge
becomes eligible to receive benefits from such trust fund by actual retirement, no further payment by him or her shall be required,
since such employee contribution, in an equal treatment sense,
ceases to be required in the other retirement systems of the state,
also, only after actual retirement
: Provided, however, That on and
after January 1, 1995, every person who is then serving or shall
thereafter serve as a judge of any court of record in this state
shall pay into the Judges' Retirement Fund nine percent of the
salary received by that person
: Provided further, That consistent
with the salary increase granted to judges of courts of record
during the 2005 regular legislative session and to changes
effectuated in judicial retirement by provisions enacted during the
third extraordinary legislative session of 2005, on and after July
1, 2005, every person who is then serving or shall thereafter serve
as a judge of any court of record in this state shall pay into the
Judges' Retirement Fund ten and one-half percent of the salary
received by that person. Any prior occurrence or practice to the
contrary, in any way allowing discontinuance of required employee
contributions prior to actual retirement under this retirement
system, is rejected as erroneous and contrary to legislative intent
and as violative of required equal treatment and is hereby
nullified and discontinued fully, with the State Auditor to require
such contribution in every instance hereafter, except where no
contributions are required to be made under any of the provisions
of this article.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this system, a "leased employee" means any individual who performs
services as an independent contractor or pursuant to an agreement
with an employee leasing organization or other similar
organization. If a question arises regarding the status of an
individual as a leased employee, the board has the final power to
decide the question.
(c) In drawing warrants for the salary checks of judges, the
State Auditor shall deduct from the amount of each such salary
check six percent thereof, which amount so deducted shall be
credited by the Consolidated Public Retirement Board to the trust
fund
: Provided, That on or after January 1, 1995, the amount so
deducted and credited shall be nine percent of each such salary
check
: Provided, however, That consistent with the salary increase
granted to judges of courts of record during the 2005 regular
legislative session and to changes effectuated in judicial
retirement by provisions enacted during the third extraordinary
legislative session of 2005, on or after July 1, 2005, the amount
so deducted and credited shall be ten and one-half percent of each
such salary check.
(d) Any judge seeking to qualify military service to be
claimed as credited service, in allowable aggregate maximum amount
up to five years, shall be entitled to be awarded the same without
any required payment in respect thereof to the Judges' Retirement
Fund.
(d) The Legislature recognizes the men and women of this state
who have served in the active military duty of the Armed Forces of the United States. It is the intent of this section to confer
military service credit for time served in active military duty in
the Armed Forces of the United States upon members who are eligible
for judges' retirement benefits whether he or she was a member of
the judges' retirement system at the time of entering the military
service.
(e) For the purposes of this section, the following
definitions apply:
(1) "Active military duty" means full-time duty in the active
military service of the United States Army, Navy, Air Force or
Marine Corps. Such term does not include regularly required
training or other duty performed by a member of a reserve component
or National Guard unless the member can substantiate that he or she
was called into the active military service of the United States.
(2) "Month of service" means any month in which the member
served in active military duty for at least one half of the
calendar month.
(f) Members who are eligible to receive credited service for
periods of active military duty must substantiate to the retirement
board:
(1) That the member has served one or more periods of active
duty as substantiated by a federal form DD-214;
(2) That the member has been honorably discharged from active
military duty as substantiated by a federal form DD-214; and
(3) That the member is receiving no benefits from any other
retirement system, except those benefits provided by federal law, for his or her active military duty.
(g) The retirement board may not credit any member with more
than twelve months of service in any calendar year.
(h) For any member elected or appointed for the first time
prior to July 1, 2009, and who is eligible for an annuity benefit
on June 30, 2009, he or she shall receive up to sixty months of
service, for any time served in active military duty.
(i) For any member elected or appointed for the first time on
or after July 1, 2009, or for any member who is not eligible for an
annuity benefit on June 30, 2009, he or she shall receive up to
twenty-four months of service for any time served in active
military duty.
(j) The retirement board may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of
this section.
(e) (k) Notwithstanding the preceding provisions of this
section, contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code.
The Retirement Board
is authorized to determine all questions and make all decisions
relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the authority granted to the retirement board in section one, article
ten-d, chapter five of this code to comply with Section 414(u) of
the Internal Revenue Code.
(f) (l) Any judge holding office as such on the effective
date of the amendments to this article adopted by the Legislature
at its regular session in the year 1987 who seeks to qualify
service as a prosecuting attorney as credited service, which
service credit must have been earned prior to the year 1987, shall
be required to pay into the Judges' Retirement Fund nine percent of
the annual salary which was actually received by such person as
prosecuting attorney during the time such prosecutorial service was
rendered prior to the year 1987 and for which credited service is
being sought, together with applicable interest. No judge whose
term of office shall commence after the effective date of such
amendments to this article shall be eligible to claim any credit
for service rendered as a prosecuting attorney as eligible service
for retirement benefits under this article, nor shall any time
served as a prosecutor after the year 1988 be considered as
eligible service for any purposes of this article.
§51-9-6. Eligibility for and payment of benefits.
(a) Except as otherwise provided in sections five, six-d,
twelve and thirteen of this article, and subject to the provisions
of subsection (e) of this section, any person who is now serving,
or who shall hereafter serve, as a judge of any court of record of
this state and shall have served as such judge for a period of not less than sixteen full years and shall have reached the age of
sixty-five years, or who has served as judge of such court or of
that court and other courts of record of the state for a period of
sixteen full years or more (whether continuously or not and whether
said service be entirely before or after this article became
effective, or partly before and partly after said date, and whether
or not said judge shall be in office on the date he or she shall
become eligible to benefits hereunder) and shall have reached the
age of sixty-five years, or who is now serving, or who shall
hereafter serve, as a judge of any court of record of this state
and shall have served as such judge for a period of not less than
twenty-four full years, regardless of age, shall, upon a
determination and certification of his or her eligibility as
provided in section nine hereof, be paid from the fund annual
retirement benefits, so long as he or she shall live, in an amount
equal to seventy-five percent of the annual salary of the office
from which he or she has retired based upon such salary of such
office and as such salary may be changed from time to time during
the period of his or her retirement and the amount of his or her
retirement benefits shall be based upon and be equal to
seventy-five percent of the highest annual salary of such office
for any one calendar year during the period of his or her
retirement and shall be payable in monthly installments
: Provided,
That such retirement benefits shall be paid only after such judge
has resigned as such or, for any reason other than his or her
impeachment, his or her service as such has ended
: Provided, however, That every such person seeking to retire and to receive
the annual retirement benefits provided by this subsection must
have served a minimum of twelve years as a sitting judge of any
such court of record
: Provided further, That every individual who
is appointed or elected for the first time as judge of a court of
record of this state after July 1, 2005, who subsequently seeks to
retire and to receive the annual retirement benefits provided by
this subsection must have served a minimum of fourteen years as a
sitting judge of any court of record.
(b) Notwithstanding any other provisions of this article with
the exception of sections twelve-a and twelve-b, any person who is
now serving or who shall hereafter serve as a judge of any court of
record of this state and who shall have accumulated sixteen years
or more of credited service, at least twelve years of which is as
a sitting judge of a court of record, and who has attained the age
of sixty-two years or more but less than the age of sixty-five
years, may elect to retire from his or her office and to receive
the pension to which he or she would otherwise be entitled to
receive at age sixty-five, but with an actuarial reduction of
pension benefit to be established as a reduced annuity receivable
throughout retirement
: Provided, That every individual who is
appointed or elected for the first time as judge of a court of
record of this state after July 1, 2005, who subsequently seeks to
retire and to receive the annual retirement benefits provided by
this subsection must have served a minimum of fourteen years as a
sitting judge of any court of record. The reduced percentage (less than seventy-five percent) actuarially computed, determined and
established at time of retirement in respect of this reduced
pension benefit shall also continue and be applicable to any
subsequent new annual salary set for the office from which such
judge has retired and as such salary may be changed from time to
time during the period of his or her retirement.
(c) In determining eligibility for the benefits provided by
this section,
all active military duty full-time duty (including
leaves and furloughs) in the Armed Forces of the United States
shall be eligible for qualification as credited military service
for the purposes of
section four, article nine, of this chapter of
the code and shall apply toward eligibility in the judges'
retirement system. this article by any judge with twelve or more
years actual service as a sitting judge of a court of record, such
awardable military service to not exceed five years: Provided,
That in determining eligibility for the benefits provided by this
section for every individual who is appointed or elected for the
first time as judge of a court of record of this state after the
first day of July, two thousand five, active full-time duty
(including leaves and furloughs) in the Armed Forces of the United
States qualifies as credited service for the purposes of this
article for any judge with fourteen or more years actual service as
a sitting judge of a court of record of this state, the awardable
military service not to exceed five years.
(d) If a judge of a court of record who is presently sitting
as such on the effective date of the amendments to this section enacted by the Legislature at its regular session held in the year
1987 and who has served for a period of not less than twelve full
years and has made payments into the Judges' Retirement Fund as
provided in this article for each month during which he or she
served as judge, following the effective date of this section, any
portion of time which he or she had served as prosecuting attorney
in any county in this state shall qualify as years of service, if
such judge shall pay those sums required to be paid pursuant to the
provisions of section four of this article
: Provided, That any
term of office as prosecuting attorney, or part thereof, commencing
after December 31, 1988, shall not hereafter in any way qualify as
eligible years of service under this retirement system. For
purposes of this article, eligible service as a "prosecuting
attorney" or as a "prosecutor" does not include any service as an
assistant prosecuting attorney. The amendment to this subsection
during the third extraordinary session in the year 2005 is not for
the purpose of changing existing law but is intended to clarify the
intent of the Legislature as to existing law regarding eligibility
for benefits for service as a prosecuting attorney since its
initial enactment and this clarification shall be applied
retrospectively to the effective date of this section and any
predecessor acts in which service as a prosecuting attorney was
initially determined by statute to qualify as eligible years of
service under the retirement system provided by this article.
(e) Any retirement benefit accruing under the provisions of
this section shall not be paid if otherwise barred under the provisions of article ten-a, chapter five of this code.
(f) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.