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ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 539
(Senators Foster, McKenzie, Plymale and Kessler, original sponsors)
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[Passed March 7, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §7-14D-2, §7-14D-9 and §7-14D-11 of the
Code of West Virginia, 1931, as amended, all relating to the
Deputy Sheriff Retirement System; amending the definition of
"annuity start date"; requiring a member's application for
retirement; and providing the basis for determining a member's
retirement benefit.
Be it enacted by the Legislature of West Virginia:
That §7-14D-2, §7-14D-9 and §7-14D-11 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-2. Definitions.
As used in this article, unless a federal law or regulation or
the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
one-quarter percent of the member's final average salary multiplied
by the member's years of credited service. A member's accrued
benefit may not exceed the limits of Section 415 of the Internal
Revenue Code and is subject to the provisions of section nine-a of
this article.
(b) "Accumulated contributions" means the sum of all amounts
deducted from the compensation of a member, or paid on his or her
behalf pursuant to article ten-c, chapter five of this code, either
pursuant to section seven of this article or section twenty-nine,
article ten, chapter five of this code as a result of covered
employment together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with
any branch of the armed forces of the United States, including
service with the National Guard or reserve military forces when the
member has been called to active full-time duty and has received no
compensation during the period of that duty from any board or
employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the retirement board in accordance with the
provisions of this article.
(e) "Annual compensation" means the wages paid to the member
during covered employment within the meaning of Section 3401(a) of
the Internal Revenue Code, but determined without regard to any
rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the
plan year plus amounts excluded under Section 414(h)(2) of the
Internal Revenue Code and less reimbursements or other expense
allowances, cash or noncash fringe benefits or both, deferred
compensation and welfare benefits. Annual compensation for
determining benefits during any determination period may not exceed
one hundred fifty thousand dollars as adjusted for cost of living
in accordance with Section 401(a)(17)(B) of the Internal Revenue
Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first
calendar month following receipt of the retirement application by
the board: Provided, That the member has ceased covered employment
and reached early or normal retirement age. (h) "Base salary"
means a member's cash compensation exclusive of overtime from
covered employment during the last twelve months of employment.
Until a member has worked twelve months, annualized base salary is
used as base salary.
(i) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(j) "County commission" has the meaning ascribed to it in
section one, article one, chapter seven of this code.
(k) "Covered employment" means either: (1) Employment as a
deputy sheriff and the active performance of the duties required of
a deputy sheriff; or (2) the period of time which active duties are
not performed but disability benefits are received under section fourteen or fifteen of this article; or (3) concurrent employment
by a deputy sheriff in a job or jobs in addition to his or her
employment as a deputy sheriff where the secondary employment
requires the deputy sheriff to be a member of another retirement
system which is administered by the Consolidated Public Retirement
Board pursuant to article ten-d, chapter five of this code:
Provided, That the deputy sheriff contributes to the fund created
in section six of this article the amount specified as the deputy
sheriff's contribution in section seven of this article.
(l) "Credited service" means the sum of a member's years of
service, active military duty, disability service and annual leave
service.
(m) "Deputy sheriff" means an individual employed as a county
law-enforcement deputy sheriff in this state and as defined by
section two, article fourteen of this chapter.
(n) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during any
period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subdivision.
(o) "Dependent parent" means the father or mother of the
member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(p) "Disability service" means service received by a member,
expressed in whole years, fractions thereof or both, equal to one
half of the whole years, fractions thereof or both, during which
time a member receives disability benefits under section fourteen
or fifteen of this article.
(q) "Early retirement age" means age forty or over and
completion of twenty years of service.
(r) "Effective date" means the first day of July, one thousand
nine hundred ninety-eight.
(s) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last ten
years of service. If the member did not have annual compensation
for the five full plan years preceding the member's attainment of
normal retirement age and during that period the member received
disability benefits under section fourteen or fifteen of this
article then "final average salary" means the average of the
monthly salary determined paid to the member during that period as determined under section seventeen of this article multiplied by
twelve.
(t) "Fund" means the West Virginia Deputy Sheriff Retirement
Fund created pursuant to section six of this article.
(u) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are
performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of
absence or any combination thereof and without regard to whether
the employment relationship has terminated. Hours under this
paragraph shall be calculated and credited pursuant to West
Virginia Division of Labor rules. A member will not be credited
with any hours of service for any period of time he or she is
receiving benefits under section fourteen or fifteen of this
article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission, irrespective of
mitigation of damages. The same hours of service shall not be
credited both under this paragraph and paragraph (1) or (2) of this
subdivision. Hours under this paragraph shall be credited to the
member for the plan year or years to which the award or agreement pertains rather than the plan year in which the award, agreement or
payment is made.
(v) "Member" means a person first hired as a deputy sheriff
after the effective date of this article, as defined in subsection
(r) of this section, or a deputy sheriff first hired prior to the
effective date and who elects to become a member pursuant to
section five or section seventeen of this article. A member shall
remain a member until the benefits to which he or she is entitled
under this article are paid or forfeited.
(w) "Monthly salary" means the portion of a member's annual
compensation which is paid to him or her per month.
(x) "Normal form" means a monthly annuity which is one twelfth
of the amount of the member's accrued benefit which is payable for
the member's life. If the member dies before the sum of the
payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary
shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date and the
total of the retirement income payments made to the member.
(y) "Normal retirement age" means the first to occur of the
following: (1) Attainment of age fifty years and the completion of
twenty or more years of service; (2) while still in covered
employment, attainment of at least age fifty years and when the sum
of current age plus years of service equals or exceeds seventy
years; (3) while still in covered employment, attainment of at
least age sixty years and completion of five years of service; or (4) attainment of age sixty-two years and completion of five or
more years of service.
(z) "Partially disabled" means a member's inability to engage
in the duties of deputy sheriff by reason of any medically
determinable 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. A member may
be determined partially disabled for the purposes of this article
and maintain the ability to engage in other gainful employment
which exists within the state but which ability would not enable
him or her to earn an amount at least equal to two-thirds of the
average annual compensation earned by all active members of this
plan during the plan year ending as of the most recent thirtieth
day of June, as of which plan data has been assembled and used for
the actuarial valuation of the plan.
(aa) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by article
ten, chapter five of this code.
(bb) "Plan" means the West Virginia Deputy Sheriff Death,
Disability and Retirement Plan established by this article.
(cc) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(dd) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of this article.
(ee) "Retirement income payments" means the annual retirement
income payments payable under the plan.
(ff) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(gg) "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.
(hh) "Totally disabled" means a member's 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 subdivision: (1) A member is totally disabled only if his
or her physical or mental impairment or impairments are so severe
that he or she is not only unable to perform his or her previous
work as a deputy sheriff 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: (A) The work exists in the immediate area in which the
member lives; (B) a specific job vacancy exists; or (C) the member
would be hired if he or she applied for work.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques. A member's receipt of social
security disability benefits creates a rebuttable presumption that the member is totally disabled for purposes of this plan.
Substantial gainful employment rebuts the presumption of total
disability.
(ii) "Year of service". -- A member shall, except in his or
her first and last years of covered employment, be credited with
year of service credit based upon the hours of service performed as
covered employment and credited to the member during the plan year
based upon the following schedule:
Hours of Service Years of Service Credited
Less than 500 ........................... 0
500 to 999 .............................. 1/3
1,000 to 1,499 .......................... 2/3
1,500 or more ........................... 1
During a member's first and last years of covered employment, the
member shall be credited with one twelfth of a year of service for
each month during the plan year in which the member is credited
with an hour of service. A member is not entitled to credit for
years of service for any time period during which he or she
received disability payments under section fourteen or fifteen of
this article. Except as specifically excluded, years of service
include covered employment prior to the effective date. Years of
service which are credited to a member prior to his or her receipt
of accumulated contributions upon termination of employment
pursuant to section thirteen of this article or section thirty,
article ten, chapter five of this code, shall be disregarded for
all purposes under this plan unless the member repays the accumulated contributions with interest pursuant to section
thirteen of this article or had prior to the effective date made
the repayment pursuant to section eighteen, article ten, chapter
five of this code.
(jj) "Required beginning date" means the first day of April of
the calendar year following the later of: (i) The calendar year in
which the member attains age seventy and one-half; or (ii) the
calendar year in which he or she retires or otherwise separates
from covered employment.
§7-14D-9. Retirement; commencement of benefits.
A member may retire and commence to receive retirement income
payments on the first day of the calendar month following the
board's receipt of the member's voluntary written application for
retirement. Before receiving retirement income payments, the
member shall have ceased covered employment and reached early or
normal retirement age. The retirement income payments shall be in
an amount as provided under section eleven of this article:
Provided, That retirement income payments under this plan shall be
subject to the provisions of section nine-b of this article. Upon
receipt of the application, the board shall promptly provide the
member with an explanation of his or her optional forms of
retirement benefits and upon receipt of properly executed forms
from the member, the board shall process the member's request and
commence payments as soon as administratively feasible.
§7-14D-11. Retirement benefits.
This section provides for a member's accrued benefit payable starting at the member's annuity starting date which follows the
completion of a written application for the commencement of
benefits. The member shall receive the accrued retirement benefit
in the normal form or in an actuarial equivalent amount in an
optional form as provided under section twelve of this chapter.
The first day of the calendar month following the calendar month of
birth shall be used in lieu of any birth date that does not fall on
the first day of a calendar month.
(a) Normal retirement. -- A member whose annuity starting
date is the date the member attains normal retirement age or later
is entitled to his or her accrued retirement benefit based on years
of service and final average salary at termination of employment.
(b) Early retirement. -- A member who ceases covered
employment and has attained early retirement age while in covered
employment may elect to receive retirement income payments
commencing on the first day of the month coincident with or
following the date the member ceases covered employment. "Normal
retirement age" for such a member is the first day of the calendar
month coincident with or next following the month in which the
member attains the age of fifty years. If the member's annuity
starting date is prior to the date the member attains normal
retirement age, his or her accrued benefit is reduced to the
actuarial equivalent benefit amount based on the years and months
by which his or her annuity starting date precedes the date he or
she attains normal retirement age.
(c) Retirement benefits shall be paid monthly in an amount equal to one twelfth of the retirement income payments elected and
at those times established by the board. Notwithstanding any other
provision of the plan, a member who is married on the annuity
starting date will receive his or her retirement income payments in
the form of a sixty-six and two-thirds percent joint and survivor
annuity with his or her spouse unless prior to the annuity starting
date the spouse waives the form of benefit.