ENGROSSED
H. B. 2984
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced March 10, 2005; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to repeal §12-8-1, §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-
8-6, §12-8-7, §12-8-8, §12-8-9, §12-8-10, §12-8-11, §12-8-12,
§12-8-13, §12-8-14 and §12-8-16 of the Code of West Virginia,
1931, as amended; to amend and reenact §5-5-3 of said code; to
amend and reenact §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-
10-22, §5-10-23, §5-10-26, §5-10-27 and §5-10-44 of said code;
to amend and reenact §5-10A-2 and 5-10A-3 of said code; to
further amend said code by adding thereto a new section,
designated §5-10A-11; to amend said code by adding thereto a
new article containing §12-8A-1, §12-8A-2, §12-8A-3, §12-8A-4,
§12-8A-5, §12-8A-6, §12-8A-7, §12-8A-8, §12-8A-9, §12-8A-13,
§12-8A-14, §12-8A-15 and §12-8A-16; to amend and reenact §7-
14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code; to
amend and reenact §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and
§15-2-37 of said code; and to further amend said code by
adding thereto three new sections, designated §15-2-25b, §15-
2-31a and §15-2-31b; to amend and reenact §15-2A-2, §15-2A-5,
§15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11,
§15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code;
to further amend said code by adding thereto three new
sections, designated §15-2A-11a, §15-2A-11b and §15-2A-21; to
amend and reenact §18-7A-3, §18-7A-14, §18-7A-17, §18-7A-23a,
§18-7A-25, §18-7A-26 and §18-7A-34 of said code; to amend and
reenact §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a
and §18-7B-16 of said code; and to further amend said code by
adding thereto two new sections, designated §18-7B-7a and §18-
7B-20; and to amend said code by adding thereto a new article
containing §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5,
§18-7C-6, §18-7C-7, §18-7C-8, 18-7C-9, §18-7C-10, §18-7C-11,
§18-7C-12, §18-7C-13 and §18-7C-14, all relating to state
pensions and retirement generally; providing comprehensive
changes to certain plans administered by the Consolidated
Public Retirement Board; enacting the Governors Pension Reform
Act of 2005; rights of members' unused, accrued leave in final
average salary in the Public Employees Retirement System;
amending and adding definitions in the Public Employees
Retirement System; clarifying use of restricted qualified military service credit to one retirement system; restricting
certain rights of members to select a plan beneficiary;
establishing a cap on the amount certain persons may receive
from the Public Employees Retirement System where that person
is also receiving a pension from another pension or retirement
system administered by the Consolidated Public Retirement
Board; authorizing annual physician review and requiring an
annual statement of earnings from certain persons receiving
disability retirement payments; providing for suspension of
benefits upon failure of disability retiree to furnish certain
information; providing that interest is to be included in the
calculation of terminal benefits payable as the result of
death of retired participants; addressing the correction of
employer errors; clarifying use of members' unused, accrued
leave in final average salary; making technical corrections to
the Public Employees Retirement System; amending the
definitions of less than honorable service and retirement
plan; increasing the time to issue notice to terminate
benefits; requiring prosecuting attorneys to notify retirement
board of any convictions or pleas to less than honorable
service; repealing the article on Pension Liability
Redemption; creating a new article with respect to Pension
Obligation Bonds; setting forth short title; declaring policy
and making legislative findings; setting forth definitions; providing for issuance of bonds; method of bond issuance and
sale of bonds; use of bond proceeds; creation of pension
obligation bond fund and disbursements therefrom; providing
for refunding bonds; setting forth state pledges and
covenants; setting forth legal remedies of bond holders;
setting forth nature of bonds as legal investments; providing
exemption from taxation; providing subaccount for savings;
supersedure and severability; relating to the Deputy Sheriff
Retirement System; concurrent contributions by members and
employers; credit for nondeputy sheriff service in the Public
Employees Retirement System prior to transfer; treatment of
withdrawals not repaid prior to transfer; providing that any
person becoming a member of the Deputy Sheriff Retirement
System after the first day of July, two thousand five, may not
borrow from that plan; relating to the West Virginia State
Police Death, Disability and Retirement Fund generally; adding
general definitions to the West Virginia State Police Death,
Disability and Retirement Fund; adding definitions of "law-
enforcement officer," "partially disabled," "totally
disabled," and "physical or mental impairment" to the West
Virginia State Police Death, Disability and Retirement Fund;
making technical changes in to the West Virginia State Police
Death, Disability and Retirement Fund; providing for probable
permanent disability status; specifying that total disability now is inability to perform any substantial gainful employment
and that partial disability is inability to perform law
enforcement duties; specifying limitation on compensation
rendered to health care providers; providing that member
receiving annuity for partial disability incurred in
performance of duty may be employed as an elected sheriff or
appointed chief of police if it is shown to the Board that
such employment is not inconsistent with the partial
disability; allowing application for disability to be made by
person acting on member's behalf; allowing Superintendent to
petition Board for member's disability when he or she deems
the member disabled; authorizing rules; judicial review;
allowing Board to withhold payment pending judicial review;
requiring disability recipient to file annual statement of
earnings and setting forth penalty for refusal or failure to
do so; annual report of employer's disability retirement
experience in to the West Virginia State Police Death,
Disability and Retirement Fund; relating to amending
definitions in the West Virginia State Police Retirement
System; acquiring retirement credited service through member's
use of accrued annual or sick leave days in the West Virginia
State Police Retirement System; establishing starting date for
payment of annuity in the West Virginia State Police
Retirement System; clarifying disability provisions and technical corrections in the West Virginia State Police
Retirement System; amending provisions relating to the State
Teachers Retirement System; amending, adding and alphabetizing
the definitions; providing for the use of qualified military
service in the State Teachers Retirement System; providing
that in the case of deceased retired participants that
interest is to be included in the calculation of terminal
benefits payable and making other technical modifications in
the State Teachers Retirement System; clarifying provisions
for loan repayment in the State Teachers Retirement System;
replacing earnable compensation with gross salary in the State
Teachers Retirement System; clarifying maximum loan amount and
making technical corrections in the State Teachers Retirement
System; discontinuing the loan program participation of
teachers and nonteachers who become members of the Teachers
Retirement System on or after the first day of July, two
thousand five; amending certain definitions in the Teachers'
Defined Contribution System; clarifying participation
requirement in the Teachers' Defined Contribution System;
providing employer deadlines for deposit of contributions in
the Teachers' Defined Contribution System; establishing when
payments are to be made into and out of the suspension account
in the Teachers' Defined Contribution System; adding the
Internal Revenue Service provisions concerning incidental death benefits in the Teachers' Defined Contribution System;
clarifying that all years of employee service will be counted
for vesting purposes in the Teachers' Defined Contribution
System; prohibiting involuntary cash-outs effective the
thirtieth day of June, two thousand five; making technical
corrections in the Teachers' Defined Contribution System;
relating to the merger and consolidation of the Teachers'
Defined Contribution Retirement System and the State Teachers
Retirement System generally; closing the Teachers' Defined
Contribution Retirement System to newly hired personnel;
providing legislative findings and purpose; providing
definitions; providing for merger and consolidation of the
Teachers' Defined Contribution Retirement System and the State
Teachers Retirement System upon election; providing
responsibilities of the Consolidated Public Retirement Board;
setting forth dates and time periods for transition and
election; requiring that increase of or new benefits to the
Teachers Retirement System be amortized over a ten-year time
period; providing for education about election and merger for
members; requiring legal notice to members; providing for
transfer of assets from the Teachers' Defined Contribution
Retirement System to the State Teachers Retirement System upon
favorable vote for consolidation and merger; providing that
the Teachers' Defined Contribution Retirement System shall not exist upon favorable vote for consolidation and merger;
setting forth terms of merger and consolidation of the
Teachers' Defined Contribution Retirement System and the State
Teachers Retirement System; providing for service credit in
the State Teachers Retirement; requiring members of Teachers'
Defined Contribution Plan to pay additional amount to receive
credit upon merger; providing options and loans for members
moving to the remaining plan; providing service credit for
transferring member; addressing withdrawals and cash outs;
providing for election on the question of merger and
consolidation of the Teachers' Defined Contribution Retirement
System and the State Teachers Retirement System; setting forth
requirements of election; allowing Consolidated Public
Retirement Board to contract directly for professional
services for purposes of performing its responsibilities
related to the merger and consolidation and conducting the
election; permitting only one election; addressing qualified
domestic relations orders; providing for vesting of members
and minimum guarantees of benefits for them; providing for due
process and right to appeal; and providing for nonseverability
of the new article.
Be it enacted by the Legislature of West Virginia:
That §12-8-1, §12-8-2, §12-8-3, §12-8-4, §12-8-5, §12-8-6,
§12-8-7, §12-8-8, §12-8-9, §12-8-10, §12-8-11, §12-8-12, §12-8-13, §12-8-14 and §12-8-16 of the Code of West Virginia, 1931, as
amended, be repealed; that §5-5-3 of said code be amended and
reenacted; that §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22,
§5-10-23, §5-10-26, §5-10-27 and §5-10-44 of said code, be amended
and reenacted; that §5-10A-2 and 5-10A-3 of said code, be amended
and reenacted; that said code be further amended by adding thereto
a new section, designated §5-10A-11; that said code be further
amended by adding thereto a new article containing §12-8A-1, §12-
8A-2, §12-8A-3, §12-8A-4, §12-8A-5, §12-8A-6, §12-8A-7, §12-8A-8,
§12-8A-9, §12-8A-10, §12-8A-11, §12-8A-12, §12-8A-13, §12-8A-14,
§12-8A-15 and §12-8A-16; that §7-14D-5, §7-14D-7, §7-14D-13 and §7-
14D-23 of said code, be amended and reenacted; that §15-2-26, §15-
2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32,
§15-2-33, §15-2-34 and §15-2-37 of said code, be amended and
reenacted; and that said code be further amended by adding thereto
three new sections, designated §15-2-25b, §15-2-31a and §15-2-31b;
that §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9,
§15-2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19
of said code, be amended and reenacted; that said code be further
amended by adding thereto three new sections, designated §15-2A-
11a, §15-2A-11b and §15-2A-21; that §18-7A-3, §18-7A-14, §18-7A-
17, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code,
be amended and reenacted; that §18-7B-2, §18-7B-7, §18-7B-9,
§18-7B-11, §18-7B-12a and §18-7B-16 of said code, be amended and reenacted; that said code be further amended by adding thereto two
new sections, designated §18-7B-7a and §18-7B-20; and that said
code be further amended by adding thereto a new article containing
§18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-
7, §18-7C-8, 18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13
and §18-7C-14, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-3. Optional payment to employee in lump sum amount for
accrued and unused l
eave at termination of employment;
no withholding of any employee contribution deduction;
exception.
Every eligible employee, as defined in section one of this
article, at the time his or her active employment ends due to
resignation, death, retirement or otherwise, may be paid in a lump
sum amount, at his or her option, for accrued and unused annual
leave at the employee's usual rate of pay at
such the time. The
lump sum payment shall be made by the time of what would have been
the employee's next regular payday had his
or her employment
continued. In determining the amount of
annual leave entitlement,
weekends, holidays or other periods of normal, noncountable time shall be excluded, and no deductions may be made for contributions
toward retirement from lump sum payments for unused, accrued
annual
leave
of any kind or character, since no period of service credit
is granted in relation thereto; however,
such lump sum payment
for
unused, accrued leave of any kind or character may not be a part of
final average salary computation; and where any
such deduction of
employee contribution may have been heretofore made, a refund of
such the amount deducted shall be granted the former employee and
made by the head of the respective former employer spending unit:
Provided, That the Superintendent of the
department of public
safety West Virginia State Police shall make deductions for
retirement contributions of members of the
department State Police
Death, Disability and Retirement Fund created and continued in
section twenty-six, article two, chapter fifteen of this code since
retirement benefits are based on cumulative earnings rather than
period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the
context, the following words and phrases as used in this article,
have the following meanings:
(1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia public employees retirement system created and established by this
article;
(3) "Board of trustees" or "board" means the board of trustees
of the West Virginia public employees retirement system;
(4) "Political subdivision" means the state of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the public employees retirement system before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the public employees retirement system
to remain members and continue to participate in the retirement
system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the regional
community policing institute which participated in the public
employees retirement system before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the public employees retirement system to remain members and continue to
participate in the public employees retirement system after the
first day of July, two thousand;
(5) "Participating public employer" means the state of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
supreme court of appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia public employees retirement system;
(6) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia national guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That members of the Legislature, the clerk of the House of
Delegates, the clerk of the Senate, employees of the Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature for its regular sessions or during the interim between regular
sessions and who have been or are employed during regular sessions
or during the interim between regular sessions in seven consecutive
calendar years, as certified by the clerk of the house in which the
employee served, members of the legislative body of any political
subdivision and judges of the state court of claims are considered
to be employees, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(7) "Member" means any person who is included in the
membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity
payable by the retirement system;
(9) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(10) "Service" means personal service rendered to a
participating public employer by an employee, as defined in this
article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article. This revised
definition is retroactive and applicable to the first day of April,
one thousand nine hundred eighty-eight, and thereafter;
(13) "Credited service" means the sum of a member's prior
service credit and contributing service credit standing to his or
her credit as provided in this article;
(14) "Limited credited service" means service by employees of
the West Virginia educational broadcasting authority, in the
employment of West Virginia university, during a period when the
employee made contributions to another retirement system, as
required by West Virginia university, and did not make
contributions to the public employees retirement system: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(15) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by him
or her to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of his or her remuneration which is not paid in money;
(16) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member (including a member of the Legislature who participates in
the retirement system in the year one thousand nine hundred
seventy-one or thereafter) during any period of three consecutive
years of his or her credited service contained within his or her
ten years of credited service immediately preceding the date his or
her employment with a participating public employer last
terminated; or
(B) If he or she has less than five years of credited service,
the average of the annual rate of compensation received by him or
her during his or her total years of credited service; and in
determining the annual compensation, under either paragraph (A) or
(B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one or in
any year thereafter, his or her actual legislative compensation
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code) in the year one
thousand nine hundred seventy-one or in any year thereafter, plus
any other compensation he or she receives in any year from any
other participating public employer including the state of West
Virginia, without any multiple in excess of one times his or her actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating
public employer including the state of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(17) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(18) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(19) "Annuity" means an annual amount payable by the
retirement system throughout the life of a person. All annuities
shall be paid in equal monthly installments, using the upper cent
for any fraction of a cent;
(20) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the board of
trustees from time to time;
(21) "Retirement" means a member's withdrawal from the employ
of a participating public employer with an annuity payable by the
retirement system;
(22) "Actuarial equivalent" means a benefit of equal value computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(23) "Retroactive service" means: (1) Service an employee was
entitled to, but which the employer has not withheld d to prior
service at no cost in accordance with 162 CSR 5.16;
(24) "Required beginning date" means the first day of April of
the calendar year following the later of: (A) The calendar year in
which the member attains age seventy and one-half; or (B) the
calendar year in which the member ceases providing service covered
under this system to a participating employer;
(25) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended; and
(26) "Plan year" means the same as referenced in section
forty-two of this article.
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, rounding to the upper cent for
any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the Board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform
services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the House in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen, article ten, chapter five of this code, and: Provided further, That members of the legislative
body of any political subdivision and judges of the State Court of
Claims are employees receiving one year of service credit for each
one year term served and pro rated service credit for any partial
term served, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(12) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that
has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member, (including a member of the Legislature who participates
in the retirement system in the year one thousand nine hundred
seventy-one or thereafter), during any period of three consecutive
years of credited service contained within the member's ten years
of credited service immediately preceding the date his or her employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited
service, the average of the annual rate of compensation received by
the member during his or her total years of credited service; and
in determining the annual compensation, under either paragraph (A)
or (B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one, or
in any year thereafter, his or her actual legislative compensation,
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code), in the year
one thousand nine hundred seventy-one, or in any year thereafter,
plus any other compensation he or she receives in any year from any
other participating public employer including the State of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one, who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating
public employer including the State of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated
contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the Public Employees Retirement System before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the Public Employees Retirement System
to remain members and continue to participate in the retirement
system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the Regional
Community Policing Institute which participated in the Public
Employees Retirement System before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after the
first day of July, two thousand;
(20) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board of trustees adopts
from time to time;
(22) "Required beginning date" means the first day of April of
the calendar year following the later of: (A) The calendar year in
which the member attains age seventy and one-half years of age; or
(B) the calendar year in which a member who has attained the age
seventy and one-half years of age and who ceases providing service
covered under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity
payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between the
first day of July, one thousand nine hundred sixty-one, and the
date an employer decides to become a participating member of the
Public Employees Retirement System; (2) service prior to the first
day of July, one thousand nine hundred sixty-one, for which the
employee is not entitled to prior service at no cost in accordance
with 162 CSR 5.13; and (3) service of any member of a legislative body or employees of the State Legislature whose term of employment
is otherwise classified as temporary for which the employee is
eligible, but for which the employee did not elect to participate
at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
§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 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.
(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.
(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 is empowered to 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 is
empowered to 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 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.
(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
such system, may not be used again in any other system. The
retirement Board is authorized to determine all questions and make
all decisions relating to this section and, pursuant to the
authority granted to the
retirement Board in section one, article
ten-d of this chapter, may promulgate rules relating to
contributions, benefits and service credit to comply with Section
414(u) of the Internal Revenue Code.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the
following persons:
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who continue in the employ of the participating public employer on and
after that date shall become members of the retirement system; and
all persons who become employees of a participating public employer
on or after that date shall thereupon become members of the system;
except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System
shall not include any person who is
a an active contributing member
of, or who has been retired by, any of the State Teachers
retirement systems, the Judges Retirement System,
the any
Retirement System of the
Division of Public Safety West Virginia
State Police, the Deputy Sheriff Retirement System or any municipal
retirement system for either, or both,
policemen police or
firemen
firefighter; and the Bureau of Employment Programs, by the
Commissioner of the Bureau, may elect whether its employees will
accept coverage under this article or be covered under the
authorization of a separate enactment:
Provided, That the
exclusions of membership
shall do not apply to any member of the
State Legislature, the Clerk of the House of Delegates, the Clerk
of the State Senate or to any member of the legislative body of any
political subdivision provided he or she once becomes a
contributing member of the retirement system:
Provided, however,
That any retired member of
the retirement system of the
division of
public safety State Police Death, Disability and Retirement Fund,
the West Virginia State Police Retirement System, the Deputy Sheriff Retirement System and any retired member of any municipal
retirement system for either, or both,
policemen police or
firemen
firefighter may on and after the effective date of this section
become a member of the retirement system as provided in this
article, without receiving credit for prior service as a municipal
policeman police officer or
fireman firefighter or as a member of
the
division of public safety State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System
or
of the Deputy Sheriff Retirement System:
Provided further, That
any retired member of the State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System,
the Deputy Sheriff Retirement System and any retired member of any
municipal retirement system for either, or both, police or
firefighters, who begins participation in the retirement system
established in this article on or after the first day of July, two
thousand five, may not receive a combined retirement benefit in
excess of one hundred five percent of the member's highest annual
salary earned while either a member of the retirement system
established in this article or while a member of the other
retirement system or systems from which he or she previously
retired when adding the retirement benefit from the retirement
system created in this article to the retirement benefit received
by that member from the other retirement system or systems set
forth herein from which he or she previously retired: And provided further, That the membership of the retirement system does not
include any person who becomes employed by the Prestera Center for
Mental Health Services, Valley Comprehensive Mental Health Center,
Westbrook Health Services or Eastern Panhandle Mental Health Center
on or after the first day of July, one thousand nine hundred
ninety-seven:
And provided further, That membership of the
retirement system does not include any person who becomes a member
of the federal railroad retirement act on or after the first day of
July, two thousand.
(c) Any member of the State Legislature, the Clerk of the
House of Delegates, the Clerk of the State Senate and any employee
of the State Legislature whose employment is otherwise classified
as temporary and who is employed to perform services required by
the Legislature for its regular sessions or during the interim
between regular sessions and who has been or is so employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the Clerk of the House
in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he or she notifies the retirement system
in writing of his or her intention to be a member of the system and
files a membership enrollment form as prescribed by the Board of
Trustees, and each person, upon filing his or her written notice to
participate in the retirement system, shall by that act authorize the Clerk of the House of Delegates or the Clerk of the State
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct the
member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after the deductions have been
made from the member's compensation, the deductions shall be
forwarded to the retirement system.
(d) If question arises regarding the membership status of any
employee, the Board of Trustees has the final power to decide the
question.
(e) Any individual who is a leased employee is not eligible to
participate in the system. For the purposes of this article, the
term "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 authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service
in force, of which at least three years are contributing service,
and who leaves the employ of a participating public employer prior
to his or her attaining age sixty years for any reason except his
or her disability retirement or death, shall be entitled to an annuity computed according to section twenty-two of this article,
as that section was in force as of the date of his or her
separation from the employ of a participating public employer:
Provided, That he or she does not withdraw his or her accumulated
contributions from the members' deposit fund:
Provided, however,
That on and after the first day of July, two thousand two, any
person who becomes a new member of this retirement system shall, in
qualifying for retirement hereunder, have five or more years of
service, all of which years shall be actual, contributory ones.
His or her annuity shall begin the first day of the calendar month
next following the month in which his or her application for same
is filed with the Board of Trustees on or after his or her
attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has ten or
more years of credited service in force and who has attained age
fifty-five as of the date of his or her separation, may, prior to
the effective date of his or her retirement, but not thereafter,
elect to receive the actuarial equivalent of his or her deferred
retirement annuity as a reduced annuity commencing on the first day
of any calendar month between his or her date of separation and his
or her attainment of age sixty-two years and payable throughout his
or her life.
(c) Any member who qualifies for deferred retirement benefits in accordance with subsection (a) of this section and has twenty or
more years of credited service in force may elect to receive the
actuarial equivalent of his or her deferred retirement annuity as
a reduced annuity commencing on the first day of any calendar month
between his or her fifty-fifth birthday and his or her attainment
of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, and pursuant to rules promulgated
by the Board, any member who has thirty or more years of credited
service in force, at least three of which are contributing service,
and who elects to take early retirement, which for the purposes of
this subsection means retirement prior to age sixty, whether an
active employee or a separated employee at the time of application,
shall be entitled to the full computation of annuity according to
section twenty-two of this article, as that section was in force as
of the date of retirement application, but with the reduced
actuarial equivalent of the annuity the member would have received
if his or her benefit had commenced at age sixty when he or she
would have been entitled to full computation of benefit without any
reduction.
(e) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, any member of the retirement system may retire with full pension rights, without reduction of benefits,
if he or she is at least fifty-five years of age and the sum of his
or her age plus years of contributing service and limited credited
service, as defined in section two of this article, equals or
exceeds eighty.
The member's annuity shall begin the first day of
the calendar month immediately following the calendar month in
which his or her application for the annuity is filed with the
Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article,
he or she shall receive a straight life annuity equal to one and
five-tenths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her
credited service in force at the time of his or her retirement:
Provided, That the final average salary used in this calculation
does not include any lump sum payment for unused, accrued leave of
any kind or character. The credited service used for this
calculation may not include any period of limited credited service:
Provided, however, That after March one, one thousand nine hundred
seventy, all members retired and all members retiring shall receive
a straight life annuity equal to two percent of his or her final
average salary multiplied by the number of years, and fraction of
a year, of his or her credited service, exclusive of limited
credited service in force at the time of his or her retirement. In either event, upon his or her retirement he or she has the right to
elect an option provided
for in section twenty-four of this
article. All annuity payments shall commence effective the first
day of the month following the month in which a member retires or
a member dies leaving a beneficiary entitled to benefits and shall
continue to the end of the month in which the retirant or
beneficiary dies, and the annuity payments may not be prorated for
any portion of a month in which a member retires or retirant or
beneficiary dies. Any member receiving an annuity based in part
upon limited credited service is not eligible for the supplements
provided
for in sections twenty-two-a through twenty-two-d,
inclusive, of this article.
(b) The annuity of any member of the Legislature who
participates in the retirement system as a member of the
Legislature and who retires under this article or of any former
member of the Legislature who has retired under this article
(including any former member of the Legislature who has retired
under this article and whose annuity was readjusted as of the first
day of March, one thousand nine hundred seventy, under the former
provisions of this section) shall be increased from time to time
during the period of his or her retirement when and if the
legislative compensation paid under section two, article two-a,
chapter four of this code, to a member of the Legislature shall be
increased to the point where a higher annuity would be payable to the retirant if he or she were retiring as of the effective date of
the latest increase in
such legislative compensation, but on the
basis of his or her years of credited service to the date of his or
her actual retirement.
§5-10-23. Terminal payment following retirement.
For the purposes of this section, the term "accumulated net
benefit" means the aggregate amount of all benefits paid to or on
behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum
distributions paid to the member or to any other person on account
of the member's rights to benefits from the plan; (c) survivor
benefits paid to any person or persons on account of the member's
rights to benefits from the plan; and (d) any other distributions
on account of the member's rights to benefits from the plan whether
they are paid in the nature of a refund of contributions, interest
on contributions, lump sum distributions, or annuity type benefits.
The amounts counted will be the amounts actually paid without
regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated
employee contributions" means all money the member has contributed
to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct
remittance by the member to repay contributions and interest
previously distributed and direct remittance by the member to pay imputed contributions for periods which were not subject to
contributions but may be counted for benefit purposes under the
plan. The term accumulated employee contributions does not include
any amount credited under the provisions of the plan as interest on
member contributions.
For the purposes of this section, the term "member's account"
means the excess of the accumulated employee contributions over the
accumulated net benefit payments at any point in time and the term
"member" includes retirant. (a) This section provides for the
payment of the balance in
the a retired member's account in the
event that all claims to benefits payable to, or on behalf of, a
member expire before his or her member account has been fully
exhausted. The expiration of such rights to benefits would be on
the occasion of
either the death of the
retired member
and any and
all beneficiaries who might have a claim to regular benefit
payments under the plan, for any form of benefit. Without
limitation, this would include the demise of beneficiaries of
survivor annuities and beneficiaries of any lump sum distributions
drawing benefits under a straight life annuity, or the death of a
survivor annuitant drawing benefits under any optional form of
benefit selected by the retired member, whichever occurs later.
(b) In the event that all claims to
benefit benefits payable
to, or on behalf of, a
retired member expire, and the accumulated
employee contributions exceed
his or her the accumulated net benefit payments
paid to or on behalf of the retired member, the
balance in the
retired member's account shall be paid to the person
or persons as the
retired member has nominated by written
designation duly executed and filed with the board of trustees. If
there be no designated person or persons surviving the
retired
member
following the expiration of claims, the excess of the
accumulated
employee contributions over the accumulated net
benefit, if any, shall be paid to
his or her the retired member's
estate.
In no case may the plan retain any amount of the
accumulated employee contributions remaining in the member's
account, but it shall retain interest earned on the same
accumulated employee contributions in the instance of a member's or
beneficiary's post-retirement death.
§5-10-26. Reexamination of disability retirants; reemployment;
adjustment of annuity for earnings.
(a) At least once each year during the first five years
following the retirement of a member on account of disability, as
provided in section twenty-five hereof, and at least once in each
three-year period thereafter, the Board
of trustees may, and upon
the retirant's application, may require a disability retirant, who
has not attained age sixty years, to undergo a medical examination
to be made by or under the direction of a physician designated by
the board
, or to submit a statement signed by the disability
retirant's physician certifying continued disability, or both, and a copy of the disability retirants's annual statement of earnings.
Should the
said retirant refuse to submit to such medical
examination
or provide the certification or statement in any such
period, his
or her disability annuity may be discontinued by the
Board until
his withdrawal of such refusal the retirant complies+.
Should
such refusal continue for one year, all
his the retirant's
rights in and to
his the annuity may be revoked by the board. If,
upon
such medical examination of a disability retirant, the
said
physician reports to the board that the retirant is physically able
and capable of resuming employment with a participating public
employer,
he the retirant shall be returned to the employ of the
participating public employer from whose employment he retired and
his disability annuity shall terminate:
Provided, That
the report
of the said physician is concurred in by the board the Board
concurs in the physician's report.
(b) A disability retirant who is returned to the employ of a
participating public employer shall again become a member of the
retirement system and
his the retirant's credited service in force
at the time of his
or her retirement shall be restored.
to his
credit.
(c)
If a disability retirant, who has not attained age sixty
years, becomes engaged in a gainful occupation, business or
employment, and the sum of his earnings from such occupation,
business or employment, and his disability annuity exceeds his annual rate of compensation at the time of his retirement, his
disability annuity shall be reduced to an amount which when added
to the amount so earned by him shall equal his said annual rate of
compensation. If his earnings are later changed, his disability
annuity shall be correspondingly adjusted. If a review of the
disability retirant's annual statement of earnings or other
financial information as required by the Board determines that the
disability retirant's earned income for the preceding year exceeds
the substantial gainful activity amount as defined by the United
States Social Security Administration, the disability retirant's
annuity shall be terminated by the Board, upon recommendation of
the Board disability review committee, on the first day of the
month following the Board's action. Any person who wishes to
reapply for disability retirement and whose disability retirement
annuity has been terminated by the Board may do so within ninety
days of the effective date of termination by requesting an
examination at the applicant's expense by an appropriate medical
professional chosen by the Board.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article:
may at any time
prior to the effective date of his or her retirement, by written declaration duly executed and filed with the board of trustees, in
the same manner as if he or she were then retiring from the employ
of a participating public employer, elect option A provided for in
section twenty-four of this article and nominate a beneficiary whom
the board finds to have had an insurable interest in the life of
the member. Prior to the effective date of his or her retirement,
a member may revoke his or her election of option A and nomination
of beneficiary and he or she may again prior to his or her
retirement elect option A and nominate a beneficiary as provided in
this subsection. Upon the death of a member who has an option A
election in force, his or her beneficiary, if living, shall
immediately receive an annuity computed in the same manner in all
respects as if the same member had retired the day preceding the
date of his or her death, notwithstanding that he or she might not
have attained age sixty years, and elected the said option A. If
at the time of his or her retirement a member has an option A
election in force, his or her election of option A and nomination
of beneficiary shall thereafter continue in force. (1) Dies
without leaving a surviving spouse; but (2) leaves surviving him or
her a child who is financially dependent on the member by virtue of
a permanent mental or physical disability upon evidence
satisfactory to the Board; and (3) has named the disabled child as
sole beneficiary, the disabled child shall immediately receive an
annuity computed in the same manner in all respects as if the said member had: (1) Retired the day preceding the date of his or her
death, notwithstanding that he or she might not have attained age
sixty or sixty-two years, as the case may be; (2) elected option A
provided for in section twenty-four of this article; and (3)
nominated his or her disabled child as beneficiary. As an
alternative to annuity option A, A member or former member
with
ten or more years of credited service, who does not leave surviving
him or her a spouse or a disabled child, may elect to have the
preretirement death benefit paid as a return of accumulated
contributions in a lump sum amount to any beneficiary or
beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of
credited service, or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies; and (2)
leaves a surviving spouse, the surviving spouse shall immediately
receive an annuity computed in the same manner in all respects as
if the said member had: (1) Retired the day preceding the date of
his or her death, notwithstanding that he or she might not have
attained age sixty or sixty-two years, as the case may be; (2)
elected option A provided
for in section twenty-four of this
article; and (3) nominated his or her surviving spouse as
beneficiary. However, the surviving spouse shall have the right to
waive the annuity provided
for in this section:
Provided, That he or she executes a valid and notarized waiver on a form provided by
the
retirement Board and that the member or former member attests
to the waiver. If the waiver is presented to and accepted by the
retirement Board, the member or former member,
shall may nominate
a beneficiary who has an insurable interest in the member's or
former member's life. As an alternative to annuity option A, the
member or former member may elect to have the preretirement death
benefit paid as a return of accumulated contributions in a lump sum
amount to any beneficiary or beneficiaries he or she chooses in the
event a waiver, as provided
for in this section, has been presented
to and accepted by the
retirement Board.
(c) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving surviving him or her a spouse; but (2) leaves surviving him
or her an infant child or children; and (3) does not have a
beneficiary nominated as provided in subsection (a) of this
section, the infant child or children shall be entitled to an
annuity to be calculated as follows: The annuity reserve shall be
calculated as though the member had retired as of the date of his
or her decease and elected a straight life annuity and the amount
of the annuity reserve shall be paid in equal monthly installments
to said member's infant child or children until the child or children attain age twenty-one or sooner marry or become
emancipated; however, in no event shall any child or children
receive more than two hundred fifty dollars per month each. The
annuity payments shall be computed as of the date of the death of
the member and the amount of the annuity shall remain constant
during the period of payment. The annual amount of the annuities
payable by this section shall not exceed sixty percent of the
deceased member's final average salary.
(d) In the event any member or former member does not have ten
or more years of credited service, no preretirement death annuity
may be authorized, owed or awarded under this section.
§5-10-44. Correction of errors.
Should any change or
employer error in the records of any
participating public employer or the retirement system result in
any person receiving from the system more or less than he
or she
would have been entitled to receive had the records been correct,
the Board
of trustees shall correct
such the error, and as far as
is practicable shall adjust the payment of the benefit in
such a
manner that the actuarial equivalent of the benefit to which
such
the person was correctly entitled shall be paid.
Any employer
error resulting in an underpayment to the retirement system may be
corrected by the employee remitting the required employee
contribution and the participating public employer remitting the
required employer contribution. Interest shall accumulate in accordance with the Legislative Rule 162 CSR 7 concerning
retirement board refund, reinstatement and loan interest factors,
and any accumulating interest owed on the employee and employer
contributions resulting from the employer error shall be the
responsibility of the participating public employer. The
participating public employer may remit total payment and the
employee reimburse the participating public employer through
payroll deduction over a period equivalent to the time period
during which the employer error occurred.
10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
As used in this article:
(a) "Retirement plan" or "plan" means the Public Employees
Retirement Act, pursuant to article ten, chapter five of this code;
each municipal employees retirement plan, pursuant to article
twenty-two, chapter eight of this code; each policemen's and
firemen's pension and relief fund, pursuant to article twenty-two,
chapter eight of this code; the West Virginia
State Police Death,
Disability and Retirement Fund
of the department of public safety,
pursuant to article two, chapter fifteen of this code;
the West
Virginia State Police Retirement System, pursuant to article two-a,
chapter fifteen of this code; the State Teachers Retirement System,
pursuant to article seven-a, chapter eighteen of this code;
the Teachers' Defined Contribution Retirement System, pursuant to
article seven-b, chapter eighteen of this code; the Deputy Sheriff
Retirement System, pursuant to article fourteen-d, chapter seven of
this code; supplemental and additional retirement plans, pursuant
to section four-a, article twenty-three, chapter eighteen of this
code; the Judges' Retirement System, pursuant to article nine,
chapter fifty-one of this code; and any other plan established
pursuant to this code for the payment of pension, annuity,
disability or other benefits to any person by reason of his
or her
service as an officer or employee of this state or of any political
subdivision, agency or instrumentality thereof, whenever such plan
is supported in whole or in part by public funds.
(b) "Beneficiary" means any person eligible for or receiving
benefits on account of the service for a public employer by a
participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other
benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective
date of this article in any federal or state court of record
whether following a plea of guilty, not guilty or nolo contendere,
and whether or not the person convicted was serving as an officer
or employee of a public employer at the time of the conviction.
(e) "Less than honorable service" means:
(1) Impeachment and conviction of a participant under the
provisions of section nine, article four of the Constitution of
West Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct
related to his
or her office or employment which he
or she
committed while holding
such the office or during
such the
employment; or
(3) Conduct of a participant which constitutes all of the
elements of a crime described in either of the foregoing
subdivisions (1) or (2) but for which the participant was not
convicted because:
(i) Having been indicted
or having been charged in an
information for
such crime, he
or she made a plea bargaining
agreement pursuant to which he
or she pleaded guilty to or nolo
contendere to a lesser crime
: Provided, That the lesser crime is a
felony containing all the elements described in subdivisions (1) or
(2); or
(ii) Having been indicted
or having been charged in an
information for such crime, he
or she was granted immunity from
prosecution for the same
; or
(iii) Having been named as an unindicted coconspirator in an
indictment of another person for such a crime, which indictment
resulted in the conviction of such other person, he or she was not prosecuted for such crime or conspiracy therefor.
(f) "Participant" means any person eligible for or receiving
any benefit under a retirement plan on account of his
or her
service as an officer or employee for a public employer.
(g) "Public employer" means the State of West Virginia and any
political subdivision, agency, or instrumentality thereof for which
there is established a retirement plan.
(h) "Supervisory board" or "board" means the
board of trustees
of the West Virginia Public Employees Retirement System
Consolidated Public Retirement Board; the board of trustees of any
municipal retirement fund; the board of trustees of any policemen's
or firemen's retirement plan;
the retirement board of the
Department of Public Safety; the state treasurer, state auditor and
one other member of the board of public works so designated by the
governor to sit on the supervisory board of the judges' retirement
plan (who shall for the purpose of this article constitute the
board); the designated members of the state teachers retirement
system established pursuant to section five, article seven-a,
chapter eighteen of this code; the governing board of any
supplemental retirement plan instituted pursuant to authority
granted by section four-a, article twenty-three, chapter eighteen
of this code, and any other board, commission or public body having
the duty to supervise and operate any retirement plan
§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.
(a) Whenever a supervisory board, upon receipt of a verified
complaint or otherwise, has reasonable cause to believe that a
participant rendered less than honorable service as defined in
section two of this article, it shall notify the affected
participant or beneficiary that it believes that the participant
rendered less than honorable service and that the participant or
beneficiary is thereby ineligible to receive benefits. No
supervisory board
shall may issue such notice:
(1) If more than
one year has two years have elapsed since the
judgment of conviction upon which such notice is based became
final; or
(2) In cases described in paragraph (3),
subdivision
subsection (e), section two of this article, if more than
one year
has two years have elapsed since, as the case may be: the plea
bargaining agreement
, or the grant of immunity
, or, in the event
the participant was named as an unindicted coconspirator for a
crime, the conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the
effective date of this article.
(b) The notice shall contain a concise statement of the
reasons why the Board believes that the participant rendered less than honorable service and shall be made either by personal service
or by certified mail, return receipt requested, to the address
which the participant or beneficiary maintains for purposes of
corresponding with the Board. If notice is made by certified mail,
service shall be deemed complete upon mailing and a completed
receipt shall constitute proof of the receipt thereof. The notice
shall inform the participant or beneficiary that he
or she has the
right to demand that the Board seek a determination in circuit
court of his
or her eligibility for benefits and membership in the
retirement plan by notifying the Board of such demand within forty
days. The notice shall also inform the participant or beneficiary
that the Board will terminate the benefits in accordance with
section four of this article and refund the participant's
contributions with interest less benefits previously paid as
provided in section six thereof if the participant or beneficiary
either waives the right to demand that the Board take the matter
before the circuit court or fails to respond to the Board's notice
within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorneys of the counties of this state shall,
within sixty days of a conviction or a plea agreement meeting the
definition of less than honorable service, report the same to the
executive director of the Board, including with the report the
indictment, plea agreement and any order finding the defendant guilty.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 8A. PENSION OBLIGATION BONDS.
§12-8A-1. Short title.
This article shall be known and may be cited as the "Pension
Obligation Bond Act."
§12-8A-2. Declaration of policy; legislative findings; legislative
intent.
The Legislature finds and declares that the Legislature has
established a number of pension systems, including the Death,
Disability and Retirement Fund of the Department of Public Safety
established in article two, chapter fifteen of this code; the
Judges' Retirement System established in article nine, chapter
fifty-one of this code; and the Teachers Retirement System
established in article seven-a, chapter eighteen of this code, each
of which is a trust for the benefit of the participating public
employees. This article provides for the redemption of the
unfunded actuarial accrued liability of each pension system through
the issuance of bonds for the purpose of: (1) Providing for the
safety and soundness of the pension systems; and (2) to realize
savings over the remaining term of the amortization schedules of
the unfunded actuarial accrued liabilities and thereby achieve
budgetary savings.
§12-8A-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Bonds" means bonds, notes, refunding notes and bonds, or
other obligations of the state issued by the governor pursuant to
this article.
(2) "Consolidated Public Retirement Board" means the Board
created to administer all public retirement plans in this state
under article ten-d of chapter five of this code and any board or
agency that succeeds to the powers and duties of the consolidated
public retirement board.
(3) "Costs" include, but are not limited to, amounts necessary
to fund any capitalized interest funds and any reserve funds, any
costs relating to the issuance and determination of the validity of
the bonds, fees for obtaining bond insurance, credit enhancements
or liquidity facilities, administrative costs, fees incurred
pursuant to subsection (f), section five of this article and costs
attributable to the agreements described in section six of this
article.
(4) "Death, Disability and Retirement Fund" means the Death,
Disability and Retirement Fund of the Department of Public Safety
created by article two, chapter fifteen of this code.
(5) "Department of Administration" means the Department established pursuant to article one, chapter five-a of this code
and any board or agency that succeeds to the powers and duties of
the Department of Administration.
(6) "Executive order" means an executive order issued by the
governor to authorize the issuance of bonds as provided in this
article.
(7) "Investment management board" means the Board established
under article six, chapter twelve of this code, and any board or
agency that succeeds to the powers and duties of the investment
management board.
(8) "Judges' Retirement System" means the judicial retirement
system created under article nine, chapter fifty-one of this code.
(9) "Obligation holders" means any holder or owner of any
bond, any trustee or other fiduciary for any such holder, or any
provider of a letter of credit, policy of bond insurance, surety,
or other credit enhancement or liquidity facility or swap relating
to any bond.
(10) "Pension Obligation Bond Fund" means the special account
in the state treasury created pursuant to subsection (a), section
eight of this article.
(11) "Pension obligation bond payments" means: (a) The
principal of, premium, if any, and interest on any outstanding
bonds issued pursuant to this article; and (b) any other amounts required to be paid pursuant to the terms of any outstanding bonds,
any indenture authorized pursuant to this article and any other
agreement entered into between the governor and any obligation
holder.
(12) "Pension systems" means the Judges' Retirement System,
the Death, Disability and Retirement Fund and the Teachers
Retirement Fund.
(13) "Refund" or "refunding" means the issuance and sale of
bonds the proceeds of which are used or are to be used for the
payment, defeasance or redemption of outstanding bonds upon or
prior to maturity.
(14) "Refunding bonds" means bonds issued for the payment,
defeasance or redemption of outstanding bonds upon or prior to
maturity.
(15)"Teachers Retirement System" means the retirement system
established in article seven-a, chapter eighteen of this code.
(16) "True interest cost" means the interest rate that, when
compounded at time intervals consistent with the structure of the
bond issue and used to discount the payments of principal of and
interest on the bonds, causes such discounted principal and
interest payments to equal the purchase price of the bonds. To
ensure that the costs of issuance of the bonds are included in the
true interest cost, the costs of issuance shall be deducted from the purchase price of the bonds before calculating the interest
rate.
(17) "Normal cost" means the value of benefits accruing for
the current valuation year under the actuarial cost method.
(18) "Actuarial cost method" means a mathematical process in
which the cost of benefits projected to be paid after a period of
active employment has ended is allocated over the period of active
employment during which such benefits are earned.
(19)"Unfunded actuarial accrued liability" means the
aggregate of the unfunded actuarial accrued liabilities of the
pension systems, with the unfunded actuarial accrued liability of
each pension system being calculated in an actuarial valuation
report provided by the consolidated public retirement board to the
Department of Administration pursuant to section four of this
article.
§12-8A-4. Issuance of bonds; determination of unfunded actuarial
accrued liability.
(a) Upon approval by the voters of this state of the
constitutional amendment authorizing the issuance of pension
obligation bonds, the Governor shall have the power, as provided by
this article, to issue the bonds authorized in this section at a
time or times as provided by a resolution adopted by the
Legislature to fund all or a portion of the unfunded actuarial accrued liability, such bonds to be payable from and secured by
moneys deposited in the Pension Liability Redemption Fund. Any
bonds issued pursuant to this article, other than refunding bonds,
shall be issued no later than five years after the date of adoption
of the resolution of the Legislature authorizing the issuance of
the bonds referred to in this section.
(b) The aggregate principal amount of bonds issued pursuant to
the provisions of this article is limited to no more than the
lesser of the following: (1) The principal amount necessary, after
deduction of costs, underwriter's discount and original issue
discount, if any, to fund not in excess of one hundred percent of
the unfunded actuarial accrued liability of the Death, Disability
and Retirement Fund of the Division of Public Safety established in
article two, chapter fifteen of this code, one hundred percent of
the unfunded actuarial accrued liability of the Judges' Retirement
System established in article nine, chapter fifty-one of this code,
and ninety-five percent of the unfunded actuarial accrued liability
of the Teachers Retirement System established in article seven-a,
chapter eighteen of this code, as certified by the Consolidated
Public Retirement Board to the Department of Administration
pursuant to subsection (e) of this section; or (2) five billion
five hundred million dollars; but in no event shall the aggregate
principal amount of bonds issued exceed the principal amount
necessary, after deduction of costs, underwriter's discount and original issue discount, if any, to fund not in excess of the total
unfunded actuarial accrued liability, as certified by the
Consolidated Public Retirement Board to the Department of
Administration pursuant to subsection (e) of this section.
(c) The costs of issuance, excluding fees for ratings, bond
insurance, credit enhancements and liquidity facilities, plus
underwriter's discount and any other costs associated with the
issuance shall not exceed, in the aggregate, the sum of one percent
of the aggregate principal amount of bonds issued.
(d) The limitation on the aggregate principal amount of bonds
provided in this section shall not preclude the issuance of bonds
from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the
Department of Administration, the Consolidated Public Retirement
Board shall provide the Department of Administration with a
certified statement of the amount of each pension system's unfunded
actuarial accrued liability calculated in an actuarial valuation
report that establishes the amount of the unfunded actuarial
accrued liability as of a date specified by the Department of
Administration, based upon each pension system's most recent
actuarial valuation.
(f) No later than fifteen days after receipt of a request from
the Governor, the Department of Administration shall provide the Governor with a certification of the maximum aggregate principal
amount of bonds that may be issued at that time pursuant to
subsection (b) of this section.
§12-8A-5. Method of bond issuance; manner of sale of bonds;
authority of department of administration.
(a) The Governor shall, by executive message, request the
Legislature prepare and consider a resolution authorizing the
issuance of bonds described in section four of this article. The
executive message shall specify the maximum costs associated with
the issue. Upon the adoption of a resolution by the Legislature
authorizing the issuance of the bonds in the amount and upon the
terms specified in the resolution, the bonds shall be authorized by
an executive order issued by the Governor. The executive order
shall be received by the Secretary of State and filed in the State
Register pursuant to section three, article two, chapter
twenty-nine-a of this code. The Governor, either in the executive
order authorizing the issuance of the bonds or by the execution and
delivery by the Governor of a trust indenture or agreement
authorized in such executive order, shall stipulate the form of the
bonds, whether the bonds are to be issued in one or more series,
the date or dates of issue, the time or times of maturity, which
shall not exceed the longest remaining term of the current
amortization schedules for the unfunded actuarial accrued
liability, the rate or rates of interest payable on the bonds, which may be at fixed rates or variable rates and which interest
may be current interest or may accrue, the denomination or
denominations in which the bonds are issued, the conversion or
registration privileges applicable to some or all of the bonds, the
sources and medium of payment and place or places of payment, the
terms of redemption, any privileges of exchangeability or
interchangeability applicable to the bonds, and the entitlement of
obligation holders to priorities of payment or security in the
amounts deposited in the Pension Liability Redemption Fund. Bonds
shall be signed by the Governor and attested by the Secretary of
State, by either manual or facsimile signatures. The Governor
shall not sign the bonds unless he or she first make a written
finding, which shall be transmitted to the State Treasurer, the
Secretary of State, the Speaker of the House of Delegates and the
President of the Senate, that: (i) The true interest cost of the
bonds, including any discount thereon, is at least thirty basis
points less than the assumed actuarial interest rate used to
calculate the unfunded actuarial accrued liability; and (ii) that
the issuance of the bonds will not in any manner cause a downgrade
or reduction in the state's general obligation credit rating by
standard bond rating agencies.
(b) The bonds may be sold at public or private sale at a price
or prices determined by the Governor. The Governor is authorized
to enter into any agreements necessary or desirable to effectuate the purposes of this section, including agreements to sell bonds to
any person and to comply with the laws of any jurisdiction relating
thereto.
(c) The Governor, in the executive order authorizing the
issuance of bonds or by the execution and delivery by the Governor
of a trust indenture or agreement authorized in such executive
order, may covenant as to the use and disposition of or pledge of
funds made available for pension liability redemption payments or
any reserve funds established pursuant to such executive order or
established pursuant to any indenture authorized by such executive
order. All costs may be paid by or upon the order of the Governor
from amounts received from the proceeds of the bonds and from
amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution
adopted by the Legislature authorizing the same.
(e) Neither the Governor, the Secretary of State, nor any
other person executing or attesting the bonds or any agreement
authorized in this article shall be personally liable with respect
to payment of any pension liability redemption payments.
(f) Notwithstanding any other provision of this code, and
subject to the approval of the review committee, the Department of
Administration, in the department's discretion: (i) Shall select,
employ and compensate one or more persons or firms to serve as bond counsel or co-bond counsel who shall be responsible for the
issuance of a final approving opinion regarding the legality of the
bonds issued pursuant to this article; (ii) may select, employ and
compensate one or more persons or firms to serve as underwriter or
counderwriter for any issuance of bonds pursuant to this article;
and (iii) may select, employ and compensate one or more
fiduciaries, financial advisors and experts, other legal counsel,
placement agents, appraisers, actuaries and such other advisors,
consultants and agents as may be necessary to effectuate the
purposes of this article. Notwithstanding the provisions of
article three, chapter five of this code, bond counsel may
represent the State in court, render advice and provide other legal
services as may be requested by the Governor or the Department of
Administration regarding any bond issuance pursuant to this article
and all other matters relating to the bonds.
(g) Notwithstanding any other provision of this code, and
subject to the approval of the review committee, the State
Treasurer, in the State Treasurer's discretion, shall select,
employ and compensate an independent person or firm to serve as
special counsel to the State Treasurer to advise the State
Treasurer with respect to the State Treasurer's duties pursuant to
this article.
§12-8A-6. Contracts with obligation holders; provisions of bonds
and trust indentures and other agreements.
(a) The Governor may enter into contracts with obligation
holders and the Governor shall have the authority to comply fully
with the terms and provisions of any contracts made with obligation
holders.
(b) In addition and not in limitation to the other provisions
of this section, in connection with any bonds issued pursuant to
this article, the Governor may enter into: (i) Commitments to
purchase or sell bonds and bond purchase or sale agreements; (ii)
agreements providing for credit enhancement or liquidity, including
revolving credit agreements, agreements establishing lines of
credit or letters of credit, insurance contracts, surety bonds and
reimbursement agreements; (iii) agreements to manage interest rate
exposure and the return on investments, including interest rate
exchange agreements, interest rate cap, collar, corridor, ceiling
and floor agreements, option, rate spread or similar exposure
agreements, float agreements and forward agreements; (iv) stock
exchange listing agreements; and (v) any other commitments,
contracts or agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and
as to the issuance of such bonds, in escrow or otherwise, provide
for the replacement of lost, destroyed or mutilated bonds, covenant
against extending the time for the payment of bonds or interest
thereon and covenant for the redemption of bonds and provide the
terms and conditions of such redemption.
(d) Except as otherwise provided in any executive order or in
this article, the terms of the executive order and of this article
in effect on the date the bonds are issued shall constitute a
contract between the state and obligation holders. Any
representation, warranty or covenant made by the governor in the
executive order, any indenture of trust or trust agreement
authorized by the executive order, any bond or any other contract
entered into pursuant to this article with any obligation holder
shall be a representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any
portion of them, the right to enforce the payment of the bonds or
agreements authorized in this article or any covenants securing or
relating to the bonds or such agreements. The Governor may
prescribe the procedure, if any, by which the terms of any contract
with obligation holders may be supplemented, amended or abrogated,
prescribe which supplements or amendments will require the consent
of obligation holders and the portion of obligation holders
required to effect such consent and prescribe the manner in which
such consent may be given.
§12-8A-7. Proceeds from the sale of bonds.
(a) The proceeds from the sale of bonds, other than refunding
bonds, issued pursuant to this article, after payment of any costs
payable at time of issuance of such bonds, shall be paid to the
Consolidated Public Retirement Board to redeem the unfunded actuarial accrued liability, which is a previous liability of the
State, by funding the amount of the unfunded actuarial accrued
liability provided for by such bonds.
(b) From time to time when requested by the Department of
Administration, the Investment Management Board shall prepare and
submit to the Governor, the Speaker of the House of Delegates, the
President of the Senate and the Department of Administration the
short-term and long-term investment strategies that the Investment
Management Board intends to follow for investment of the plan
assets of the pension systems pursuant to law, as adjusted by the
deposit of the proceeds of bonds issued pursuant to this article.
§12-8A-8. Creation of pension obligation bond fund; disbursements
to pay pension obligation bond payments.
(a) There is hereby created a special account in the State
Treasury to be administered by the State Treasurer, which shall be
designated and known as the "Pension Obligation Bond Fund," into
which shall be deposited any and all amounts appropriated by the
Legislature or funds from any other source whatsoever which are
made available by law for the purpose of making pension obligation
bond payments. All funds deposited to the credit of the Pension
Obligation Bond Fund shall be held in a separate account and all
money belonging to the fund shall be deposited in the State
Treasury to the credit of the Pension Obligation Bond Fund.
(b) On or before the first day of November of each year, the
Department of Administration shall certify to the Governor and the
State Treasurer and deliver to the Speaker of the House of
Delegates and the President of the Senate a certification as to the
amount of pension obligation bond payments to be appropriated for
the next fiscal year in order to pay in full when due all pension
obligation bond payments that will become due during the next
fiscal year. Such certification shall include the amount and due
date of each such pension obligation bond payment. All moneys
appropriated by the Legislature in accordance with a certification
made pursuant to this subsection shall be deposited into the
Pension Obligation Bond Fund.
(c) The State Treasurer shall pay to the trustee under the
trust indenture or agreement executed by the Governor all pension
obligation bond payments as and when due. Such payments shall be
transferred by electronic funds transfer, unless some other manner
of funds transfer is specified by the Governor. No payments shall
be required for bonds that are defeased or bonds for which a
deposit sufficient to provide for all payments on the bonds has
been made.
(d) There shall be created within the pension liability
redemption fund a subaccount into which there shall be deposited
annually by the Legislature an amount not greater than the
aggregate amount certified by each system's actuary to represent the difference between the pension obligation bond payments and the
annual amortization payments on the unfunded actuarial accrued
liability that would have been due for such fiscal year had the
bonds issued pursuant to this article not been issued. Upon
resolution passed by the Legislature, the governor shall use funds
on deposit in the subaccount in the amount and upon the terms
specified in the resolution: (1) To reduce any remaining unfunded
actuarial accrued liability; or (2) to provide for the early
retirement of the bonds if possible.
§12-8A-9. Refunding bonds.
Subject to the provisions of the outstanding bonds issued
under this article and subject to the provisions of this article,
the Governor shall have the power to refund any outstanding bonds,
whether the obligation refunded represents principal or interest,
in whole or in part, at any time.
Refunding bonds shall mature at such time or times, which
shall not exceed the longest original term of the bonds as issued,
as the Governor shall determine by executive order issued by the
Governor, which executive order shall be received by the Secretary
of State and filed in the State Register pursuant to section three,
article two, chapter twenty-nine-a of this code.
§12-8A-10. State pledges and covenants.
(a) The State of West Virginia covenants and agrees with the obligation holders, and the indenture shall so state, that the
bonds issued pursuant to this article are a direct and general
obligation of the State of West Virginia; that the pension
obligation bond payments will be included in each budget along with
all other amounts for payment and discharge of the principal of and
interest on state debt; that the full faith and credit of the State
is hereby pledged to secure the payment of the principal of and
interest on the bonds; and that annual state taxes shall be
collected in an amount sufficient to pay the pension obligation
bond payments as they become due and payable from the Pension
Liability Redemption Fund.
(b) The State hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that the State will not
limit or alter the rights, powers or duties vested in any state
official, or that state official's successors or assigns, and the
obligation holders in a way that will inhibit any state official,
or that state official's successors or assigns, from carrying out
such state official's rights, powers or duties under this article,
nor limit or alter the rights, powers or duties of any state
official, or that state official's successors or assigns, in any
manner which would jeopardize the interest of any obligation
holder, or inhibit or prevent performance or fulfillment by any
state official, or that state official's successors or assigns,
with respect to the terms of any agreement made with any obligation holder pursuant to section six of this article.
(c) The State hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that, while any of the
bonds are outstanding, should any increase of existing benefits or
the creation of new benefits under any of the pension systems,
other than an increase in benefits or new benefits effected by
operation of law in effect on the effective date of this article,
cause any additional unfunded actuarial accrued liability in any of
the pension systems (calculated in an actuarially sound manner)
during any fiscal year, such additional unfunded actuarial accrued
liability of that pension system will be fully amortized over no
more than the ten consecutive fiscal years following the date the
increase in benefits or new benefits becomes effective.
(d) The State hereby pledges and covenants with the obligation
holders, and the indenture shall so state, that, while any of the
bonds are outstanding, should any additional unfunded actuarial
accrued liability in any of the pension systems (calculated in an
actuarially sound manner) occur during any fiscal year due to
changes in actuarial assumptions, changes in investment performance
or increases in benefits or additional benefits occurring by
operation of law in effect on the effective date of this article,
and such additional unfunded actuarial accrued liability persists
for a period of five consecutive fiscal years, the Governor shall
submit to the Legislature a plan to fund such additional unfunded actuarial accrued liability over a reasonable period not to exceed
ten years.
§12-8A-11. Legal remedies of obligation holders.
Any obligation holder, except to the extent that the rights
given by this article may be restricted by the executive order
authorizing the issuance of the bonds or by the trust indenture or
agreement authorized in such executive order, may by civil action,
mandamus or other proceeding, protect and enforce any rights
granted under the laws of this State, granted under this article,
or granted by the executive order or by the trust indenture or
agreement authorized in such executive order, and may enforce and
compel the performance of all duties required by this article, by
the executive order or by the trust indenture or agreement
authorized in such executive order.
§12-8A-12. Nature of bonds; legal investments.
(a) The bonds issued under the provisions of this article
shall be and have all the qualities of negotiable instruments under
the uniform commercial code of this State and shall not be invalid
for any irregularity or defect in the proceedings for the issuance
thereof and shall be incontestable in the hands of bona fide
purchasers or holders thereof for value.
(b) Notwithstanding any other provision of this code, the
bonds issued pursuant to this article are securities in which all public officers and bodies of this state, including the investment
management board, all municipalities and other political
subdivisions of this state, all insurance companies and
associations and other persons carrying on an insurance business,
including domestic for life and domestic not for life insurance
companies, all banks, trust companies, societies for savings,
building and loan associations, savings and loan associations,
deposit guarantee associations and investment companies, all
administrators, guardians, executors, trustees and other
fiduciaries and all other persons whatsoever who are authorized to
invest in bonds or other obligations of the State may properly and
legally invest funds, including capital, in their control or
belonging to them.
§12-8A-13. Exemption from taxation.
All bonds issued under the provisions of this article and the
income therefrom shall be exempt from taxation by the State of West
Virginia, or by any county, school district or municipality
thereof, except inheritance, estate and transfer taxes.
§12-8A-14. Supersedure.
It is the intent of the Legislature that in the event of any
conflict or inconsistency between the provisions of this article
and any other law, to the extent of the conflict or inconsistency,
the provisions of this article shall be enforced and the provisions of the other law shall be of no effect.
§12-8-15. Effective Date.
Notwithstanding the effective date of this act of the
Legislature, this article shall not become operational and shall
have no force and effect until the day the people ratify an
amendment to the constitution of this state authorizing pension
obligation bonds.
§12-8A-16. Severability.
If any section, subsection, subdivision, subparagraph,
sentence or clause of this article is adjudged to be
unconstitutional or invalid, such adjudication shall not affect the
validity of the remaining portions of this article and, to this
end, the provisions of this article are hereby declared to be
severable.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered
employment after the effective date of this article shall be a
member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the
Board, so long as he or she remains employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the
effective date of this article shall within six months of that
effective date notify in writing both the county commission in the
county in which he or she is employed and the Board, of his or her
desire to become a member of the plan:
Provided, That this time
period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
Supreme Court of Appeals in
West Virginia Deputy Sheriffs'
Association, et al v. James L. Sims, et al, No. 25212:
Provided,
however, That any deputy sheriff employed in covered employment on
the effective date of this article has an additional time period
consisting of the ten-day period following the day after which the
amended provisions of this section become law to notify in writing
both the county commission in the county in which he or she is
employed and the Board of his or her desire to become a member of
the plan. Any deputy sheriff who elects to become a member of the
plan ceases to be a member or have any credit for covered
employment in any other retirement system administered by the Board
and shall continue to be ineligible for membership in any other
retirement system administered by the Board so long as the deputy
sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the
time period from the first day of July, one thousand nine hundred
ninety-eight, to the thirtieth day of January, one thousand nine hundred ninety-nine, or who so elects during the ten-day time
period occurring immediately following the day after the day the
amendments made during the one thousand nine hundred ninety-nine
legislative session become law, to transfer from the Public
Employees Retirement System to the plan created in this article
shall contribute to the plan created in this article at the rate
set forth in section seven of this article retroactive to the first
day of July, one thousand nine hundred ninety-eight. Any deputy
sheriff who does not affirmatively elect to become a member of the
plan continues to be eligible for any other retirement system as is
from time to time offered to other county employees but is
ineligible for this plan regardless of any subsequent termination
of employment and rehire.
(c) Any deputy sheriff employed in covered employment on the
effective date of this article who has timely elected to transfer
into this plan as provided in subsection (b) of this section shall
be given credited service at the time of transfer for all credited
service then standing to the deputy sheriff's service credit in the
Public Employees Retirement System regardless of whether the
credited service (as that term is defined in section two, article
ten, chapter five of this code) was earned as a deputy sheriff.
All the credited service standing to the transferring deputy
sheriff's credit in the Public Employees Retirement Fund System at
the time of transfer into this plan shall be transferred into the plan created by this article, and the transferring deputy sheriff
shall be given the same credit for the purposes of this article for
all service transferred from the Public Employees Retirement
System as that transferring deputy sheriff would have received from
the Public Employees Retirement System as if the transfer had not
occurred. In connection with each transferring deputy sheriff
receiving credit for prior employment as provided in this
subsection, a transfer from the Public Employees Retirement System
to this plan shall be made pursuant to the procedures described in
section eight of this article: Provided, That a member of this
plan who has elected to transfer from the Public Employees
Retirement System into this plan pursuant to subsection (b) of this
section may not, after having transferred into and become an active
member of this plan, reinstate to his or her credit in this plan
any service credit relating to periods of nondeputy sheriff service
which were withdrawn from the Public Employees Retirement System
prior to his or her elective transfer into this plan.
(c) (d) Any deputy sheriff who was employed as a deputy
sheriff prior to the effective date
of this article, but was not
employed as a deputy sheriff on the effective date of this article,
shall become a member upon rehire as a deputy sheriff. For
purposes of this
section subsection, the member's years of service
and credited service
in the Public Employees Retirement System
prior to the effective date
of this article shall not be counted for any purposes under this plan unless: (1) The deputy sheriff
has not received the return of his or her accumulated contributions
in the Public Employees Retirement
fund System pursuant to section
thirty, article ten, chapter five of this code; or (2) the
accumulated contributions returned to the member from the Public
Employees Retirement System have been repaid pursuant to section
thirteen of this article. If the conditions of subdivision (1) or
(2) of this subsection are met, all years of the deputy sheriff's
covered employment shall be counted as years of service for the
purposes of this article.
Each transferring deputy sheriff shall
be given credited service for the purposes of this article for all
covered employment transferred from the public employees retirement
system regardless of whether the credited service (as that term is
defined in section two, article ten, chapter five of this code) was
earned as a deputy sheriff. All service in the public employees
retirement system accrued by a transferring deputy sheriff shall be
transferred into the plan created by this article and the
transferring deputy sheriff shall be given the same credit for the
purposes of this article for all covered service which is
transferred from the public employees retirement system as that
transferring deputy sheriff would have received from the public
employees retirement system if the transfer had not occurred. In
connection with each deputy sheriff receiving credit for prior
employment provided in this subsection, a transfer from public employees retirement system to this plan shall be made pursuant to
the procedures described in section eight of this article.
(d) (e) Once made, the election
made under provided for in
this section is irrevocable. All deputy sheriffs first employed
after the effective date and deputy sheriffs electing to become
members as described in this section shall be members as a
condition of employment and shall make the contributions required
by section seven of this article.
(e) (f) Notwithstanding any other provisions of this article,
any individual who is a leased employee shall not be eligible to
participate in the plan. For purposes of this plan, a "leased
employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or 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.
§7-14D-7. Members' contributions; employer contributions.
(a) There shall be deducted from the monthly salary of each
member and paid into the Fund an amount equal to eight and one-half
percent of his or her monthly salary.
Any active member who has
concurrent employment in an additional job or jobs and the
additional 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 shall contribute to the fund the sum of eight and
one-half percent of his or her monthly salary earned as a deputy
sheriff as well as the sum of eight and one-half percent of his or
her monthly salary earned from any additional employment which
additional employment requires the deputy sheriff to be a member of
another retirement which is administered by the consolidated public
retirement board pursuant to article ten-d, chapter five of this
code. An additional amount shall be paid to the Fund by the county
commission of the county in which the member is employed in covered
employment in an amount determined by the Board:
Provided, That in
no year may the total of the contributions provided
for in this
section, to be paid by the county commission, exceed ten and
one-half percent of the total payroll for the members in the employ
of the county commission for the preceding fiscal year. If the
Board finds that the benefits provided by this article can be
actually funded with a lesser contribution, then the Board shall
reduce the required member or employer contributions or both. The
sums withheld each calendar month shall be paid to the Fund no
later than
ten fifteen days following the end of the calendar
month.
(b) Any active member who has concurrent employment in an
additional job or jobs and the additional 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 shall make an
additional contribution to the Fund of eight and one-half percent
of his or her monthly salary earned from any additional employment
which requires the deputy sheriff to be a member of another
retirement which is administered by the Consolidated Public
Retirement Board pursuant to article ten-d, chapter five of this
code. An additional amount shall be paid to the Fund by the
concurrent employer for which the member is employed in an amount
determined by the Board: Provided, That in no year may the total
of the contributions provided in this section, to be paid by the
concurrent employer, exceed ten and one-half percent of the monthly
salary of the employee. If the Board finds that the benefits
provided by this article can be funded with a lesser contribution,
then the Board shall reduce the required member or employer
contributions or both. The sums withheld each calendar month shall
be paid to the Fund no later than fifteen days following the end of
the calendar month.
§7-14D-13. Refunds to certain members upon discharge or
resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the Board, entitled to receive from the
Fund the member's accumulated contributions. Except as provided in subsection (b) of this section, upon withdrawal the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member
of this plan who
withdraws accumulated
contributions from either this plan or the public employees
retirement system and thereafter becomes reemployed ceases
employment in covered employment and active participation in this
plan, and who thereafter becomes reemployed in covered employment
shall may not receive any credited service for
any prior withdrawn
accumulated contributions from either this plan or the Public
Employees Retirement System relating to the prior
covered
employment unless following his or her return to covered employment
and active participation in this plan, the member redeposits in
the
fund this plan the amount of the
withdrawn accumulated
contributions submitted on salary earned while a deputy sheriff,
together with interest on the accumulated contributions at the rate
determined by the Board from the date of withdrawal to the date of
redeposit. Upon repayment he or she shall receive the same credit
on account of his or her former service
in covered employment as if
no refund had been made. The repayment
authorized by this
subsection shall be made in a lump sum within sixty months of the
deputy sheriff's reemployment
in covered employment or if later,
within sixty months of the effective date of this article.
(c) A member of this plan who has elected to transfer from the
Public Employees Retirement System into this plan pursuant to subsection (b) of section five of this article may not, after
having transferred into and become an active member of this plan,
reinstate to his or her credit in this plan any service credit
relating to periods of nondeputy sheriff service which were
withdrawn from the Public Employees Retirement System plan
prior to
his or her elective transfer into this plan.
(c) (d) Every member who completes sixty months of covered
employment is eligible, upon cessation of covered employment, to
either withdraw his or her accumulated contributions in accordance
with subsection (a) of this section, or to choose not to withdraw
his or her accumulated contribution and to receive retirement
income payments upon attaining normal retirement age.
(d) (e) Notwithstanding any other provision of this article,
forfeitures under the plan shall not be applied to increase the
benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement
income benefits from the plan may borrow from the plan no more than
one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars
nor more than eight thousand dollars: Provided, That the maximum
amount of any loan shall not exceed the lesser of the following:
(1) Eight thousand dollars; or (2) fifty percent of his or her accumulated contributions. No member is eligible for more than one
outstanding loan at any time. No loan may be made from the plan if
the Board determines that the loans constitute more than fifteen
percent of the amortized cost value of the assets of the plan as of
the last day of the preceding plan year. The Board may discontinue
the loans any time it determines that cash flow problems might
develop as a result of the loans. Each loan shall be repaid
through monthly installments over periods of six through sixty
months and carry interest on the unpaid balance and an annual
effective interest rate that is two hundred basis points higher
than the most recent rate of interest used by the Board for
determining actuarial contributions levels: Provided, however,
That interest charged shall be commercially reasonable in
accordance with the provisions of Section 72(p)(2) of the Internal
Revenue Code and federal regulations issued thereunder. Monthly
loan payments shall be calculated to be as nearly equal as possible
with all but the final payment being an equal amount. An eligible
member may make additional loan payments or pay off the entire loan
balance at any time without incurring any interest penalty. At the
member's option, the monthly loan payment may include a level
premium sufficient to provide declining term insurance with the
plan as beneficiary to repay the loan in full upon the member's
death. If a member declines the insurance and dies before the loan
is repaid, the unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable under section twenty-one of
this article.
(b) A member with an unpaid loan balance who wishes to retire
may have the loan repaid in full by accepting retirement income
payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then
converting the remaining of the reserve to a monthly pension
payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due
thereon, shall at the option of the Retirement Board become due and
payable without further notice or demand upon the occurrence with
respect to the borrowing member of any of the following events of
default: (1) Any payment of principal and accrued interest on a
loan remains unpaid after the same become due and payable under the
terms of the loan or after such grace period as may be established
in the discretion of the Retirement Board; (2) the borrowing member
attempts to make an assignment for the benefit of creditors of his
or her benefit under the retirement system; or (3) any other event
of default set forth in rules promulgated by the Board pursuant to
the authority granted in section one, article ten-d, chapter five
of this code: Provided, That any offset of an unpaid loan balance
shall be made only at such time as the member is entitled to
receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Retirement Board may determine.
(e) Notwithstanding anything herein to the contrary, the loan
program authorized by this section shall comply with the provisions
of Section 72(p)(2) and Section 401 of the Internal Revenue Code
and the federal regulations issued thereunder. The Retirement
Board is authorized to: (a) Apply and construe the provisions of
this section and administer the plan loan program in such a manner
as to comply with the provisions of Sections 72(p)(2) and Section
401 of the Internal Revenue Code; (b) adopt plan loan policies or
procedures consistent with these federal law provisions; and (c)
take such actions as it deems necessary or appropriate to
administer the plan loan program created hereunder in accordance
with these federal law provisions. The Retirement Board is further
authorized in connection with the plan loan program to take any
actions that may at any time be required by the Internal Revenue
Service regarding compliance with the requirements of Section
72(p)(2) or Section 401 of the Internal Revenue Code,
notwithstanding any provision in this article to the contrary.
(f) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any deputy sheriff who becomes a member of the Deputy Sheriff
Retirement System on or after the first day of July, two thousand
five.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund," "plan," or "system," means the West Virginia
Death, Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the Board
to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State
Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in
other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subsection, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the Department but also cannot, considering his or her
age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (1) The work exists in the immediate area in which the
member lives; (2) a specific job vacancy exists; or (3) the member would be hired if he or she applied for work.
§15-2-26. Continuation of death, disability and retirement fund;
designating the Consolidated Public Retirement Board
as administrator of fund.
(a) There shall be is continued the Death, Disability and
Retirement Fund heretofore created for the benefit of members of
the division of public safety Department and any dependent of a
retired or deceased member thereof.
(b) There shall be deducted from the monthly payroll of each
member of the division of public safety Department and paid into
such fund six percent of the amount of his or her salary:
Provided, That beginning on the first day of July, one thousand
nine hundred ninety-four, there shall be deducted from the monthly
payroll of each member and paid into the Fund seven and one-half
percent of the amount of his or her salary: Provided, however,
That on and after the first day of July, one thousand nine hundred
ninety-five, there shall be deducted from the monthly payroll of
each member and paid into the Fund nine percent of the amount of
his or her salary. An additional twelve percent of the monthly
salary of each member of the division Department shall be paid by
the State of West Virginia monthly into such fund out of the annual
appropriation for the division Department: Provided further, That
beginning on the first day of July, one thousand nine hundred ninety-five, the State shall pay thirteen percent of the monthly
salary of each member into the Fund: And provided further, That
beginning on the first day of July, one thousand nine hundred
ninety-six, the State shall pay fourteen percent of the monthly
salary of each member into the Fund: And provided further, That on
and after the first day of July, one thousand nine hundred
ninety-seven, the State shall pay fifteen percent of the monthly
salary of each member into the Retirement Fund. There shall also
be paid into the Fund amounts that have previously been collected
by the Superintendent of the division of public safety Department
on account of payments to members for court attendance and mileage,
rewards for apprehending wanted persons, fees for traffic accident
reports and photographs, fees for criminal investigation reports
and photographs, fees for criminal history record checks, fees for
criminal history record reviews and challenges or from any other
sources designated by the Superintendent. All moneys payable into
the Fund shall be deposited in the State Treasury and the Treasurer
and Auditor shall keep a separate account thereof on their
respective books.
(c) Notwithstanding any other provisions of this article,
forfeitures under the Fund shall not be applied to increase the
benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any benefit under the provisions of this article, are hereby exempt
from any state or municipal tax; shall not be subject to execution,
garnishment, attachment or any other process whatsoever, with the
exception that the benefits or contributions under the Fund shall
be subject to "qualified domestic relations orders" as that term is
defined in Section 414(p) of the Internal Revenue Code with respect
to governmental plans; and shall be unassignable except as is
provided in this article. The Death, Disability and Retirement
Fund shall be administered by the Consolidated Public Retirement
Board created pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death,
Disability and Retirement Fund, except such amounts as shall be
designated or set aside by the awards, shall be invested by the
State Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The Retirement Board shall retire any member of the
division of public safety Department when the member has both
attained the age of fifty-five years and completed twenty-five
years of service as a member of the division Department, including
military service credit granted under the provisions of section
twenty-eight of this article.
(b) The Retirement Board shall retire any member of the
division of public safety Department who has lodged with the secretary Executive Director of the Consolidated Public Retirement
Board his or her voluntary petition in writing for retirement, and:
(1) Has or shall have completed twenty-five years of service
as a member of the division Department (including military service
credit granted under the provisions of section twenty-eight of this
article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
division Department (excluding military service credit granted
under section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the division
Department (excluding military service credit granted under section
twenty-eight of this article.)
(c) When the Retirement Board retires any member under any of
the provisions of this section, the Board shall, by order in
writing, make an award directing that the member shall be entitled
to receive annually and that there shall be paid to the member from
the Death, Disability and Retirement Fund in equal monthly
installments during the lifetime of the member while in status of
retirement, one or the other of two amounts, whichever is the
greater:
(1) An amount equal to five and one-half percent of the aggregate of salary paid to the member during the whole period of
service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer
but less than twenty-five years as a member of the division
Department and shall be retired under any of the provisions of this
section before he or she shall have attained the age of fifty
years, payment of monthly installments of the amount of retirement
award to such member shall commence on the date he or she attains
the age of fifty years. Beginning on the fifteenth day of July,
one thousand nine hundred ninety-four, in no event may the
provisions of section thirteen, article sixteen, chapter five of
this code be applied in determining eligibility to retire with
either immediate or deferred commencement of benefit.
(d) Any individual who is a leased employee shall not be
eligible to participate in the Fund. For purposes of this Fund, a
"leased employee" means any individual who performs services as an
independent contractor or pursuant to an agreement with an employee
leasing organization or other similar organization. If a question
arises regarding the status of an individual as a leased employee,
the Board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
Every member of the division of public safety Department who is fifty-five years of age or older and who is retired by the
Retirement Board under the provisions of section twenty-seven of
this article; every member of the division of public safety
Department who is retired by the Retirement Board under the
provisions of section twenty-nine or thirty of this article; and
every surviving spouse or other beneficiary receiving a benefit
pursuant to section thirty-three or thirty-four of this article, is
eligible to receive an annual retirement annuity adjustment equal
to three and seventy-five hundredths percent of his or her
retirement award or surviving spouse award: Provided, That for any
person retiring on and after the fifteenth day of September, one
thousand nine hundred ninety-four, the annual retirement annuity
adjustment shall be equal to two percent of his or her retirement
award or award paid to a surviving spouse or other beneficiary.
Such adjustments may not be retroactive. Yearly adjustments shall
begin upon the first day of July of each year. The annuity
adjustments shall be awarded and paid to the members from the
Death, Disability and Retirement Fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits as
provided in this article.
Any member or beneficiary who receives a benefit pursuant to
the provisions of section twenty-nine, thirty, thirty-three or
thirty-four of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit
on the next July first: Provided, That if the member has been
retired for less than one year when the first annuity adjustment is
given on that July first, that first annuity adjustment will be a
pro rata share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military
service; credit toward retirement when member has
joined armed forces in time of armed conflict;
qualified military service
.
(a) For purposes of this section, the term "active military
duty" means full-time active duty with the Armed Forces of the
United States, namely, the United States Air Force, Army, Coast
Guard, Marines or Navy; and service with the National Guard or
reserve military forces of any of such Armed Forces when the member
has been called to active full-time duty and has received no
compensation during the period of such duty from any person other
than the Armed Forces.
(b) Any member of the Department who has previously served on
active military duty shall be entitled to and receive credit on the
minimum period of service required by law for retirement pay from
the service of the Department of public safety under the provisions
of this article for a period equal to the active military duty not
to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the
Armed Forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under section thirty of this article, he or she has
actually served with the Department for twenty years exclusive of
his or her active military duty.
(c) The amount of retirement pay to which any such member is
entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the Department equal to the average monthly
salary which he or she actually received from the Department for
his or her total service with the Department exclusive of the
active military duty. The Superintendent is authorized to transfer
and pay into the Death, Disability and Retirement Fund from moneys
appropriated for the Department, a sum equal to eighteen percent of
the aggregate of the salaries on which the retirement pay of all
such members has been calculated and determined for their periods
of active military duty. In addition, any person who, while a
member of the Department was commissioned, enlisted or inducted into the Armed Forces of the United States or, being a member of
the reserve officers' corps, was called to active duty in said
Armed Forces between the first day of September, one thousand nine
hundred forty, and the close of hostilities in World War II, or
between the twenty-seventh day of June, one thousand nine hundred
fifty, and the close of the armed conflict in Korea on the
twenty-seventh day of July, one thousand nine hundred fifty-three,
between the first day of August, one thousand nine hundred
sixty-four and the close of the armed conflict in Vietnam, or
during any other period of armed conflict by the United States
whether sanctioned by a declaration of war by the Congress or by
executive or other order of the President, shall be entitled to and
receive credit on the minimum period of service required by law for
retirement pay from the service of the Department of public safety
for a period equal to the full time he or she has or shall,
pursuant to such commission, enlistment, induction or call, have
served with said Armed Forces subject to the following:
(1) That he or she has been honorably discharged from the
Armed Forces;
(2) That within ninety days after honorable discharge from the
Armed Forces he or she has presented himself to the Superintendent
and offered to resume service as an active member of the
Department; and
(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the Armed Forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(d) That amount of retirement pay to which any such member
shall be entitled shall be calculated and determined as if the
member has continued in the active service of the Department at the
rank or grade to him appertaining at the time of such commission,
induction, enlistment or call, during a period coextensive with the
time the member served with the Armed Forces pursuant to the
commission, induction, enlistment or call. The Superintendent of
the Department is authorized to transfer and pay each month into
the Death, Disability and Retirement Fund from moneys appropriated
for the Department a sum equal to eighteen percent of the aggregate
of salary which all such members would have been entitled to
receive had they continued in the active service of the Department
during a period coextensive with the time such members served with
the Armed Forces pursuant to the commission, induction, enlistment
or call: Provided, That the total amount of military service
credit allowable under this section shall not exceed five years.
(e) Notwithstanding any of the preceding provisions of this
section, contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The Retirement Board
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the Retirement Board in section one, article ten-d, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with Section 414(u) of the Internal
Revenue Code.
§15-2-29. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Any member of the division Department who has not yet
entered retirement status on the basis of age and service and who
becomes partially been or shall become physically or mentally
permanently disabled by injury, illness or disease resulting from
any occupational risk or hazard inherent in or peculiar to the
services required of members of the division Department and
incurred pursuant to or while such member was or shall be engaged
in the performance of his or her duties as a member of the division
Department shall, if, in the opinion of the Retirement Board, he or
she is by reason of such cause probably permanently unable to
perform adequately the duties required of him or her as a member of
the division Department, but is able to engage in any other gainful
employment in a field other than law enforcement, be retired from active service by the Retirement Board. The member thereafter
shall be entitled to receive annually and there shall be paid to
such member from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of such member; or until
the member attains the age of fifty; or until such disability shall
sooner terminate, one or the other of two amounts, whichever is
greater:
(1) An amount equal to two thirds of the salary received in
the preceding twelve-month employment period: Provided, That if
the member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the
benefit provided for in subsection (c), section twenty-seven of
this article as it would apply to his or her aggregate career
earnings from the division Department through the day immediately
preceding his or her disability. The recalculation of benefit upon
a member attaining age fifty shall be deemed to be a retirement
under the provisions of section twenty-seven of this article, for
purposes of determining the amount of annual annuity adjustment and
for all other purposes of this article: Provided, That a member
who is partially disabled under this article may not, while in
receipt of benefits for partial disability, be employed as a law-enforcement officer: Provided, however, That a member retired
on partial disability under this article may serve as an elected
sheriff or appointed chief of police in the state without a loss of
disability retirement benefits so long as such elected or appointed
position is shown, to the satisfaction of the Board, to require the
performance of administrative duties and functions only, as opposed
to the full range of duties of a law-enforcement officer.
(c) If any member not yet in retirement status on the basis of
age and service is found by the Board to be permanently and totally
disabled as the result of a physical or mental impairment shall
become permanently physically or mentally disabled by injury,
illness or disease resulting from any occupational risk or hazard
inherent in or peculiar to the services required of members of the
division Department and incurred pursuant to or while such member
was or shall be engaged in the performance of his or her duties as
a member of the Department, division, to the extent that such
member is or shall be incapacitated ever to engage in any gainful
employment such member shall be entitled to receive annually and
there shall be paid to such member from the Death, Disability and
Retirement Fund in equal monthly installments during the lifetime
of such member or until such disability shall sooner terminate, an
amount equal to the amount of the salary received by the member in
the preceding twelve-month employment period: Provided, That in no
event may such amount be less than fifteen thousand dollars per annum, unless required by section forty of this article: Provided,
however, That if the member had not been employed with the division
Department for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit.
(c) (d) The Superintendent is authorized to expend moneys from
funds appropriated for the division Department in payment of
medical, surgical, laboratory, X-ray, hospital, ambulance and
dental expenses and fees, and reasonable costs and expenses
incurred in the purchase of artificial limbs and other approved
appliances which may be reasonably necessary for any member of the
division Department who has or shall become temporarily,
permanently or totally disabled by injury, illness or disease
resulting from any occupational risk or hazard inherent in or
peculiar to the service required of members of the division
Department and incurred pursuant to or while such member was or
shall be engaged in the performance of duties as a member of the
division Department. Whenever the Superintendent shall determine
that any disabled member is ineligible to receive any of the
aforesaid benefits at public expense, the Superintendent shall, at
the request of such disabled member, refer such matter to the
Consolidated Public Retirement Board for hearing and final
decision. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current rate schedule in use by the Workers' Compensation Commission.
(d) (e) For the purposes of this section, the term "salary"
does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the division
Department has, or shall in the opinion of the Retirement Board,
become permanently partially or totally disabled to the extent that
such member cannot adequately perform the duties required of a
member of the division Department from any cause other than those
set forth in the preceding section and not due to vicious habits,
intemperance or willful misconduct on his or her part, such member
shall be retired by the Retirement Board. Such member shall be
entitled to receive annually and there shall be paid to such member
while in status of retirement, from the Death, Disability and
Retirement Fund in equal monthly installments during the lifetime
of such member or until such disability shall sooner terminate, a
sum equal to one-half the salary received in the preceding
twelve-month period: Provided, That if the member had not been
employed with the division Department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit. If such member, at the
time of such retirement under the terms of this section, shall have
served twenty years or longer as a member of the division
Department, such member shall be entitled to receive annually and there shall be paid to such member from the Death, Disability and
Retirement Fund in equal monthly installments, commencing on the
date such member shall be retired and continuing during the
lifetime of such member, until the member attains the age of fifty,
while in status of retirement, an amount equal to one-half the
salary received by the member in the preceding twelve-month period:
Provided, however, That if the member had not been employed with
the division Department for twelve months prior to the disability,
the amount of monthly salary shall be annualized for the purpose of
determining the benefit.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit
provided for in subsection (c), section twenty-seven of this
article as it would apply to his or her aggregate career earnings
from the division Department through the day immediately preceding
his or her disability. The recalculation of benefit upon a member
attaining age fifty shall be deemed to be a retirement under the
provisions of section twenty-seven of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article.
§15-2-31. Same - Physical examinations; termination.
The Consolidated Public Retirement Board may require any member who has been or who shall be retired with compensation on
account of disability to submit to a physical and/or mental
examination by a physician or physicians selected or approved by
the Board and cause all costs incident to such examination
including hospital, laboratory, X ray, medical and physicians' fees
to be paid out of funds appropriated to defray the current expense
of the division Department, and a report of the findings of such
physician or physicians shall be submitted in writing to the
Consolidated Public Retirement Board for its consideration. If,
from such report or from such report and hearing thereon, the
Retirement Board shall be of opinion and find that such disabled
member shall have recovered from such disability to the extent that
he or she is able to perform adequately the duties of a
law-enforcement officer, a member of the division the Board shall
order such member to reassume active duty as a member of the
division and thereupon that all payments from the Death, Disability
and Retirement Fund shall be terminated. If, from the report or
the report and hearing thereon, the Board shall be of the opinion
and find that the disabled member shall have recovered from the his
or her previously determined probable permanent disability to the
extent that he or she is able to engage in any gainful employment
but remains unable to adequately perform the duties of a
law-enforcement officer, required as a member of the division the
Board shall order the payment, in monthly installments of an amount equal to two thirds of the salary, in the case of a member retired
under the provisions of section twenty-nine of this article, or
equal to one half of the salary, in the case of a member retired
under the provisions of section thirty of this article, excluding
any compensation paid for overtime service, for the twelve-month
employment period preceding the disability: Provided, That if the
member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member's behalf. After receiving an
application for a disability benefit from a member or a person
acting with legal authority on behalf of the member, the Board
shall notify the Superintendent of the Department that an
application has been filed: Provided, That when, in the judgment
of the Superintendent, a member is no longer physically or mentally
fit for continued duty as a member of the West Virginia State
Police and the member has failed or refused to make application for
disability benefits under this article, the Superintendent may
petition the Board to retire such member on the basis of disability
pursuant to rules which may be established by the Board. Within
thirty days of the Superintendent's receipt of the notice from the Board or the filing of the Superintendent's petition with the
Board, the Superintendent shall forward to the Board a statement
certifying the duties of the member's employment, information
relating to the Superintendent's position on the work relatedness
of the member's alleged disability, complete copies of the member's
medical file and any other information requested by the Board in
its processing of the application, if this information is requested
timely.
(b) The Board shall 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) A member of the Fund who has served fifteen or more years
as an active member of the West Virginia State Police before filing
an application for disability benefits under this article and who
is found by the Board to be totally disabled as the direct and
proximate result of cardiovascular disease not present at the time
of the member's entry examination by the West Virginia State Police
is presumed to have incurred the disability as a result of the
member's duties as a member of the West Virginia State Police.
This presumption is rebuttable by a preponderance of the evidence
that the member's cardiovascular disease is not a direct and
proximate result of the member's duties as a member of the West
Virginia State Police.
(d) The Board shall notify a member and the Superintendent of
its final action on the disability application or petition within
ten days of the Board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the Superintendent is aggrieved by the decision of the Board and
intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the Board within
twenty days of the member's or Superintendent's receipt of the
Board's notice that they intend to pursue judicial review of the
Board's decision.
(e) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient file the
annual statement of earnings if the Board's physician certifies
that the recipient's disability is ongoing. The Board shall
annually examine the information submitted by the recipient. If a
disability retirant refuses to file a statement and information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2-31b. Annual report on each employer's disability retirement
experience.
Not later than the first day of January, two thousand six,
and each first day of January thereafter, the Board shall prepare
a report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of State Police employees
who are members of the Fund. The report shall be submitted to the
Governor and the chairpersons of the standing committees of the
Senate and House of Delegates with primary responsibility for
retirement legislation.
§15-2-32. Retired member not to exercise police authority;
retention of group insurance
.
A member who has been or shall be retired shall may not, while
in retirement status, exercise any of the powers conferred upon
active members by section twelve of this article; but shall be
entitled to receive free of cost to such member and retain as his
or her separate property one complete standard uniform prescribed
by section nine of this article: Provided, That such uniform may
be worn by a member in retirement status only on such occasions as
shall be prescribed by the Superintendent. The Superintendent is
authorized to maintain at public expense for the benefit of all
members in retirement status that group life insurance mentioned in section ten of this article. The Superintendent, when he or she
shall be of opinion that the public safety shall require, may
recall to active duty during such period as the Superintendent
shall determine, any member who shall be retired under the
provisions of section twenty-seven of this article, provided the
consent of such member to reassume duties of active membership
shall first be had and obtained. When any member in retirement
shall reassume status of active membership such member, during the
period such member shall remain in active status, shall not be
entitled to receive retirement pay or benefits, but in lieu
thereof, shall be entitled to receive that rate of salary and
allowance pertinent to the rank or grade held by such member when
retired. When such member shall be released from active duty he or
she shall reassume the status of retirement and shall thereupon be
entitled to receive appropriate benefits as provided by this
article: Provided, That the amount of such benefits shall in no
event be less than the amount determined by the order of the
Retirement Board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent
child scholarship and amount
.
The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while such member was
or shall be engaged in the performance of his or her duties as a
member of the division Department, or if said member shall die from
any cause after having been retired pursuant to the provisions of
section twenty-nine of this article, the surviving spouse or other
dependent shall be entitled to receive and shall be paid from the
Death, Disability and Retirement Fund benefits as follows: To the
surviving spouse annually, in equal monthly installments during his
or her lifetime one or the other of two amounts, which shall become
immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the salary received in
the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the division Department for twelve months prior to the disability,
the amount of monthly salary shall be annualized for the purpose of
determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto such surviving spouse shall be entitled to
receive and there shall be paid to such person one hundred dollars
monthly for each dependent child or children. If such surviving
spouse dies or if there is no surviving spouse, there shall be paid
monthly to each such dependent child or children from the Death,
Disability and Retirement Fund a sum equal to twenty-five percent of the surviving spouse's entitlement. If there are is no
surviving spouse and no dependent child or children, there shall be
paid annually in equal monthly installments from the Death,
Disability and Retirement Fund to the dependent parents of the
deceased member during their joint lifetimes a sum equal to the
amount which a surviving spouse, without children, would have
received: Provided, That when there is but one dependent parent
surviving, that parent is entitled to receive during his or her
lifetime one-half the amount which both parents, if living, would
have been entitled to receive.
Any person qualified as a surviving dependent child under this
section shall, in addition to any other benefits due under this or
other sections of this article, be entitled to receive a
scholarship to be applied to the career development education of
that person. This sum up to but not exceeding seven thousand five
hundred dollars shall be paid from the Death, Disability and
Retirement Fund to any university or college in this state or to
any trade or vocational school or other entity in this state
approved by the board, to offset the expenses of tuition, room and
board, books, fees or other costs incurred in a course of study at
any of those institutions so long as the recipient makes
application to the Board on an approved form and under such rules
as the Board may provide, and maintains scholastic eligibility as
defined by the institution or the Board. The Board may by appropriate rules define age requirements, physical and mental
requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
Awards and benefits for a member's surviving spouse or
dependents received under any section or any of the provisions of
this retirement system shall be in lieu of receipt of any such
benefits for such persons under the provisions of any other state
retirement system. Receipt of benefits under any other state
retirement system shall be in lieu of any right to receive any
benefits under this retirement system, so that only a single
receipt of retirement benefits shall occur.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division Department, before having completed twenty years of
service as a member of the division Department, has died or shall
die from any cause other than those specified in this article and
not due to vicious habits, intemperance or willful misconduct on
his or her part, there shall be paid annually in equal monthly
installments from said Death, Disability and Retirement Fund to the surviving spouse of such member during his or her lifetime, or
until such time as said surviving spouse remarries, a sum equal to
one half of the salary received in the preceding twelve-month
employment period by the deceased member: Provided, That if the
member had not been employed with the division Department for
twelve months prior to his or her death, the amount of monthly
salary shall be annualized for the purpose of determining the
benefit. Such benefit shall become immediately available upon the
death of the member. If there is no surviving spouse, or the
surviving spouse dies or remarries, there shall be paid monthly to
each dependent child or children, from the Death, Disability and
Retirement Fund, a sum equal to twenty-five percent of the
surviving spouse's entitlement. If there are is no surviving
spouse and no dependent child or children, there shall be paid
annually in equal monthly installments from the Fund to the
dependent parents of the deceased member during their joint
lifetimes, a sum equal to the amount which a surviving spouse would
have been entitled to receive: Provided, however, That when there
is but one dependent parent surviving, that parent shall be
entitled to receive during his or her lifetime one-half the amount
which both parents, if living, would have been entitled to receive.
For the purposes of this section, the term "salary" does not
include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or resignation; deferred retirement.
(a) Any member who shall be discharged by order of the
Superintendent or shall otherwise terminate employment with the
division Department shall, at the written request of the member to
the Retirement Board, be entitled to receive from the Retirement
Fund a sum equal to the aggregate of the principal amount of moneys
deducted from his or her salary and paid into the Death, Disability
and Retirement Fund plus four percent interest compounded thereon
calculated annually as provided and required by this article.
(b) Any member who has ten or more years of service with the
division Department and who withdraws his or her contributions may
thereafter be reenlisted as a member of the division Department,
but may not receive any prior service credit on account of former
service, unless following reenlistment the member shall redeposit
in the Fund established in article two-a of this chapter the amount
of the refund, together with interest thereon at the rate of seven
and one-half percent per annum from the date of withdrawal to the
date of redeposit, in which case he or she shall receive the same
credit on account of his or her former service as if no refund had
been made. He or she shall become a member of the Retirement System
established in article two-a of this chapter.
(c) Every member who completes ten years of service with the
division of public safety Department is eligible, upon separation
of employment with the division Department, either to withdraw his or her contributions in accordance with subsection (a) of this
section or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
eligible to receive a retirement annuity. Any member choosing to
receive the deferred annuity under this subsection is not eligible
to receive the annual annuity adjustment provided in section
twenty-seven-a of this article. When the Retirement Board retires
any member under any of the provisions of this section, the Board
shall, by order in writing, make an award directing that the member
is entitled to receive annually and that there shall be paid to the
member from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of the member while in
status of retirement one or the other of two amounts, whichever is
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the division of public safety Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring member may choose, in lieu of such a life
annuity, an annuity in reduced amount payable during the member's
lifetime, with one half of such reduced monthly amount paid to his
or her surviving spouse if any, for the spouse's remaining lifetime after the death of the member. Reduction of this monthly benefit
amount shall be calculated to be of equal actuarial value to the
life annuity the member could otherwise have chosen.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "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 has been called to active full-time duty and
has received no compensation during the period of such duty from
any person other than the Armed Forces.
(2) "Base salary" means compensation paid to a member without
regard to any overtime pay.
(3) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
4) "Division" "Department" means the division of public safety
West Virginia State Police.
(5) "Final average salary" means the average of the highest
annual compensation received for employment with the division
Department, including compensation paid for overtime service, received by the member during any five calendar years within the
member's last ten years of service.
(6) "Fund" means the West Virginia State Police Retirement
Fund created pursuant to section four of this article.
(7) "Member" or "employee" means a person regularly employed
in the service of the division of public safety after the effective
date of this article.
(8) "Salary" means the compensation of a member, excluding any
overtime payments.
(9)"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(10) "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.
(11) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half; or (b) the
calendar year in which he or she retires or otherwise separates
from service with the department.
(12)"Retirement system," or "system" means the West Virginia
state police retirement system created and established by this
article.
(7) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.
(8) "Law-enforcement officer" means individuals 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 purely administrative
in nature.
(9) "Member" or "employee" means a person regularly employed
in the service of the Department as a law-enforcement officer after
the effective date of this article.
(10) "Month of service" means each month for which a member is
paid or entitled to payment for at least one hour of service for
which contributions were remitted to the Fund. These months shall
be credited to the member for the calendar year in which the duties
are performed.
(11) "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.
(12) "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.
(13) "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.
(14) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one half years; or (b) the
calendar year in which he or she retires or otherwise separates
from service with the Department after having attained the age of
seventy and one half years.
(15) "Retirement system," "plan" or "system" means the West
Virginia State Police Retirement System created and established by
this article.
(16) "Salary" means the compensation of a member, excluding
any overtime payments.
(17) "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 subdivision, 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: (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.
(18) "Years of service" means the months of service acquired
by a member while in active employment with the Department divided
by twelve. Years of service shall be calculated in years and
fraction of a year from the date of active employment of the member
with the Department through the date of termination of employment
or retirement from the Department. If a member returns to active
employment with the Department following a previous termination of
employment with the Department, and the member has not received a
refund of contributions plus interest for the previous employment
under section eight of this article, service shall be calculated
separately for each period of continuous employment, and years of
service shall be the total service for all periods of employment. Years of service shall exclude any periods of employment with the
Department for which a refund of contributions plus interest has
been paid to the member, unless the member repays the previous
withdrawal, as provided in section eight of this article, to
reinstate the years of service.
§15-2A-5. Members' contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member and paid into the Fund created pursuant to section four of
this article, twelve percent of the amount of his or her salary.
An additional twelve percent of the monthly salary of each member
of the Department shall be paid by the State of West Virginia
monthly into such the Fund out of the annual appropriation for the
division Department.
(b) 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.
§15-2A-6. Retirement; commencement of benefits.
A member may retire with full benefits upon attaining the age
of fifty-five and completing twenty or more years of service, by
lodging with the Consolidated Public Retirement Board his or her
voluntary petition in writing for retirement. A member who is less
than age fifty-five may retire upon completing twenty years or more of service: Provided, That he or she will receive a reduced
benefit that is of equal actuarial value to the benefit the member
would have received if the member deferred commencement of his or
her accrued retirement benefit to the age of fifty-five.
When the Retirement Board retires a member with full benefits
under the provisions of this section, the Board, by order in
writing, shall make a determination that the member is entitled to
receive an annuity equal to two and three-fourths percent of his or
her final average salary multiplied by the number of years, and
fraction of a year, of his or her service in the division
Department at the time of retirement. The member's annuity shall
begin the first day of the calendar month following the month in
which the member's application for the annuity is filed with the
Board on or after his or her attaining age and service
requirements, and termination of employment.
In no event may the provisions of section thirteen, article
sixteen, chapter five be applied in determining eligibility to
retire with either a deferred or immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.
Every member of the division of public safety Department who
is sixty-three years of age or older and who is retired by the
Retirement Board under the provisions of section six of this
article; every member who is retired under the provisions of
section nine or ten of this article; and every surviving spouse receiving a benefit pursuant to section twelve, thirteen or
fourteen of this article is eligible to receive an annual
retirement annuity adjustment equal to one percent of his or her
retirement award or surviving spouse award. Such adjustments may
not be retroactive. Yearly adjustments shall begin upon the first
day of July of each year. The annuity adjustments shall be awarded
and paid to a member from the Fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits
provided in this article.
Any member or beneficiary who receives a benefit pursuant to
the provisions of section nine, ten, twelve, thirteen or fourteen
of this article shall begin to receive the annual annuity
adjustment one year after the commencement of the benefit on the
next July first: Provided, That if the member has been retired for
less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata
share of the full year's annuity adjustment.
5-2A-8. Refunds to certain members upon discharge or resignation;
deferred retirement.
(a) Any member who shall be discharged by order of the
Superintendent or shall otherwise terminate employment with the
division Department shall, at the written request of the member to the Retirement Board, be entitled to receive from the Retirement
Fund a sum equal to the aggregate of the principal amount of moneys
deducted from the salary of the member and paid into the 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 division Department shall not receive
any prior service credit on account of the former service, unless
following his or her reenlistment the member shall redeposit in the
Fund the amount of the refund, together with interest thereon at
the rate of seven and one-half percent per annum from the date of
withdrawal to the date of redeposit, in which case he or she shall
receive the same credit on account of his or her former service as
if no refund had been made.
(c) Every member who completes ten years of service with the
division of public safety Department is eligible, upon separation
of employment with the division Department, to either withdraw his
or her contributions in accordance with subsection (a) of this
section, or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
eligible to receive a retirement annuity. The annuity shall be
payable during the lifetime of the member, and shall be in the
amount of his or her accrued retirement benefit as determined under section six of this article. The retiring member may choose, in
lieu of such a life annuity, an annuity in reduced amount payable
during the member's lifetime, with one half of 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. Reduction of
such the monthly benefit amount shall be calculated to be of equal
actuarial value to the life annuity the member could otherwise have
chosen. Any member choosing to receive the deferred annuity under
this subsection is not eligible to receive the annual annuity
adjustment provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Except as otherwise provided in this section, Any a member
of the division Department who has not yet entered retirement
status on the basis of age and service and who has been or shall
become physically or mentally permanently 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 of the division Department and incurred
pursuant to or while the member was or shall be engaged in the
performance of his or her duties as a member of the division
Department shall, if, in the opinion of the Retirement Board, he or
she is, by reason of such cause, unable to perform adequately the
duties required of him or her as a member of the division Department, but is able to engage in other gainful employment in a
field other than law enforcement, be retired from active service by
the Board. The member shall thereafter be entitled to receive
annually and there shall be paid to the member from the Fund in
equal monthly installments during the lifetime of the member, or
until the member attains the age of fifty-five or until such the
disability shall sooner terminate, one or the other of two amounts,
whichever is greater:
(1) An amount equal to six tenths of the base salary received
in the preceding twelve-month employment period: Provided, That if
the member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the
benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division Department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed to be a retirement under
the provisions of section six of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article: Provided, That a member who is
partially disabled under this article may not, while in receipt of benefits for partial disability, be employed as a law-enforcement
officer: Provided, however, That a member retired on a 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.
(b) If any Any member who has not yet entered retirement
status on the basis of age and service and who shall become
permanently becomes physically or mentally disabled by injury,
illness or disease on a probable permanent basis resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members of the division Department and incurred
pursuant to or while such the member was or shall be engaged in the
performance of his or her duties as a member of the division
Department to the extent that the member is or shall be
incapacitated ever to engage in any gainful employment, the member
shall be entitled to receive annually, and there shall be paid to
such the member from the Fund in equal monthly installments during
the lifetime of the member or until such the disability shall
sooner terminate, an amount equal to the amount of the base salary
received by the member in the preceding twelve-month employment
period.
The Superintendent of the division Department is authorized to
expend moneys from funds appropriated for the division Department
in payment of medical, surgical, laboratory, X-ray, hospital,
ambulance and dental expenses and fees, and reasonable costs and
expenses incurred in the purchase of artificial limbs and other
approved appliances which may be reasonably necessary for any
member of the division Department who has or shall become is
temporarily, permanently or totally disabled by injury, illness or
disease resulting from any occupational risk or hazard inherent in
or peculiar to the service required of members of the division
Department and incurred pursuant to or while the member was or
shall be engaged in the performance of duties as a member of the
division Department. Whenever the Superintendent shall determine
determines that any disabled member is ineligible to receive any of
the aforesaid benefits at public expense, the Superintendent shall,
at the request of the disabled member, refer such the matter to the
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 Bureau of Employment Programs, Workers' Compensation Division.
§15-2A-10. Same -- Due to other causes.
(a) If any member while in active service of the division has
or shall, in the opinion of the board, become permanently State
Police becomes partially or totally disabled on a probable permanent basis to the extent that the member he or she cannot
adequately perform the duties required of a member of the division
Department from any cause other than those set forth in the
preceding section and not due to vicious habits, intemperance or
willful misconduct on his or her part, the member shall be retired
by the Board. There shall be paid annually to the member from the
Fund in equal monthly installments, commencing on the date the
member shall be retired and continuing during the lifetime of the
member; or until the member attains the age of fifty-five; while in
status of retirement an amount equal to one half the base salary
received by the member in the preceding twelve-month period:
Provided, That if the member had not been employed with the
division Department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of
determining the benefit.
(b) Upon attaining age fifty-five, the member shall receive
the benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division Department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed to be a retirement under
the provisions of section six of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article.
§15-2A-11. Same -- Physical examinations; termination.
The Board may require any member who has been or who shall be
retired with compensation on account of disability to submit to a
physical and/or or mental examination or both a physical and mental
examination by a physician or physicians selected or approved by
the retirement Board and cause all costs incident to such the
examination including hospital, laboratory, X-ray, medical and
physicians' fees to be paid out of funds appropriated to defray the
current expenses of the division Department, and a report of the
findings of such the physician or physicians shall be submitted in
writing to the Board for its consideration. If from the report or
from the report and hearing thereon, the Board shall be of opinion
and find that the disabled member shall have has recovered from
such the disability to the extent that he or she is able to perform
adequately the duties of a member of the division law-enforcement
officer, the Board shall order the member to reassume active duty
as a member of the division and thereupon that all payments from
the Fund shall be terminated. If from the report or the report and
hearing thereon, the Board shall be of the opinion and find that
the disabled member has recovered from the his or her previously
determined probable permanent disability to the extent that he or
she is able to engage in any gainful employment but unable to
adequately perform the duties required as a member of the division
of a law-enforcement officer, the Board shall order, in the case of a member retired under the provisions of section nine of this
article, that the disabled member be paid annually from the Fund an
amount equal to six tenths of the base salary paid to the member in
the last twelve-month employment period. The Board shall order, in
the case of a member retired under the provisions of section ten of
this article, that the disabled member be paid from the Fund an
amount equal to one fourth of the base salary paid to the member in
the last twelve-month employment period: Provided, That if the
member had not been employed with the division Department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit.
§15-2A-11a. Physical examinations of prospective members;
application for disability benefit;
determinations.
(a) Not later than thirty days after an employee becomes a
member of the Fund, the employer shall forward to the Board a copy
of the physician's report of a physical examination which
incorporates the standards or procedures described in section
seven, article two, chapter fifteen of this code. A copy of the
physicians's report shall be placed in the employee's retirement
system file maintained by the Board.
(b) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting with legal authority on the member's behalf. After receiving an
application for a disability benefit, the Board shall notify the
Superintendent of the Department that an application has been
filed: Provided, That when, in the judgment of the Superintendent,
a member is no longer physically or mentally fit for continued duty
as a member of the West Virginia State Police and the member has
failed or refused to make application for disability benefits under
this article, the Superintendent may petition the Board to retire
the member on the basis of disability pursuant to legislative rules
proposed in accordance with article three, chapter twenty-nine-a of
this code. Within thirty days of the Superintendent's receipt of
the notice from the Board or the filing of the Superintendent's
petition with the Board, the Superintendent shall forward to the
Board a statement certifying the duties of the member's employment,
information relating to the Superintendent's position on the work
relatedness of the member's alleged disability, complete copies of
the member's medical file and any other information requested by
the Board in its processing of the application.
(c) The Board shall propose legislative rules in accordance
with article three, chapter twenty-nine-a of this code relating to
the processing of applications and petitions for disability
retirement under this article.
(d) A member who has served fifteen or more years as an active
member of the West Virginia State Police before filing an application for disability benefits under this article and who is
found by the Board to be totally disabled as the direct and
proximate result of cardiovascular disease not present at the time
of the member's entry examination by the West Virginia State Police
is presumed to have incurred the disability as a result of the
member's duties as a member of the West Virginia State Police.
This presumption is rebuttable by a preponderance of the evidence
that the member's cardiovascular disease is not a direct and
proximate result of the member's duties as a member of the West
Virginia State Police.
(e) The Board shall notify a member and the Superintendent of
its final action on the disability application or petition within
ten days of the Board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the Superintendent is aggrieved by the decision of the Board and
intends to pursue judicial review of the Board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the Board within
twenty days of the member's or Superintendent's receipt of the
Board's notice that they intend to pursue judicial review of the
Board's decision.
(f) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may waive the requirement that a disability benefit recipient file the
annual statement of earnings if the Board's physician certifies
that the recipient's disability is ongoing. The Board shall
annually examine the information submitted by the recipient. If a
disability recipient refuses to file the statement or information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2A-11b. Annual report on each employer's disability
retirement experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the Board shall prepare a
report for the preceding fiscal year of the disability retirement
experience of the State Police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of the State Police
employees who are members of the Fund. The report shall be
submitted to the Governor and the chairpersons of the standing
committees of the Senate and House of Delegates with primary
responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent child scholarship and amount.
The surviving spouse, the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while the member was or
shall be engaged in the performance of his or her duties as a
member of the division Department, or the survivor of a member who
dies from any cause after having been retired pursuant to the
provisions of section nine of this article, shall be entitled to
receive and shall be paid from the Fund benefits as follows: To
the surviving spouse annually, in equal monthly installments during
his or her lifetime, one or the other of two amounts, which shall
become immediately available and which shall be the greater of:
(1) An amount equal to seven tenths of the base salary
received in the preceding twelve-month employment period by the
deceased member: Provided, That if the member had not been
employed with the division Department for twelve months prior to
his or her death, the amount of monthly salary shall be annualized
for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse shall be entitled to
receive and there shall be paid to such the person one hundred dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there
shall be paid monthly to each dependent child or children from the
Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount which
a surviving spouse, without children, would have received:
Provided, That when there is but one dependent parent surviving,
that parent is entitled to receive during his or her lifetime one
half the amount which both parents, if living, would have been
entitled to receive.
Any person qualifying as a surviving dependent child under
this section shall, in addition to any other benefits due under
this or other sections of this article, be entitled to receive a
scholarship to be applied to the career development education of
that person. This sum, up to but not exceeding seven thousand five
hundred dollars, shall be paid from the 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 these institutions so long as the
recipient makes application to the Board on an approved form and under such rules as the Board may provide, and maintains scholastic
eligibility as defined by the institution or the Board. The Board
may by appropriate rules define age requirements, physical and
mental requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
Awards and benefits for a surviving spouse or dependents of a
member received under any section or any of the provisions of this
retirement system shall be in lieu of receipt of any benefits for
these 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 state
retirement benefits shall occur.
§15-2A-13. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division Department, before having completed twenty years of
service as a member of the division Department, has died or shall
die from any cause other than those specified in this article and
not due to vicious habits, intemperance or willful misconduct on
his or her part, there shall be paid annually in equal monthly
installments from the Fund to the surviving spouse of the member during his or her lifetime, or until such time as the surviving
spouse remarries, a sum equal to one half of the base salary
received in the preceding twelve-month employment period by the
deceased member: Provided, That if the member had not been
employed with the division Department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit. If there is no
surviving spouse or the surviving spouse dies or remarries, there
shall be paid monthly to each dependent child or children from the
Fund a sum equal to one fourth of the surviving spouse's
entitlement. If there is no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the Fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount that
a surviving spouse would have been entitled to receive: Provided,
however, That when there is but one dependent parent surviving,
then that parent shall be entitled to receive during his or her
lifetime one half the amount which both parents, if living, would
have been entitled to receive.
§15-2A-14. Awards and benefits to dependents of member -- When
member dies after retirement or after serving twenty
years
.
When any member of the division Department has completed twenty years of service or longer as a member of the division
Department and has died or shall die from any cause or causes other
than those specified in this article before having been retired by
the Board, and when a member in retirement status has died or shall
die after having been retired by the Board under the provisions of
this article, there shall be paid annually in equal monthly
installments from the Fund to the surviving spouse of the member,
commencing on the date of the death of the member and continuing
during the lifetime or until remarriage of the surviving spouse, an
amount equal to two thirds of the retirement benefit which the
deceased member was receiving while in status of retirement, or
would have been entitled to receive to the same effect as if the
member had been retired under the provisions of this article
immediately prior to the time of his or her death. In no event
shall the annual benefit payable be less than five thousand
dollars. In addition thereto, the surviving spouse is entitled to
receive and there shall be paid to the surviving spouse from the
Fund the sum of one hundred dollars monthly for each dependent
child or children. If the surviving spouse dies or remarries, or
if there is no surviving spouse, there shall be paid monthly from
the Fund to each dependent child or children of the deceased member
a sum equal to one fourth of the surviving spouse's entitlement.
If there is no surviving spouse or no surviving spouse eligible to
receive benefits and no dependent child or children, there shall be paid annually in equal monthly installments from the Fund to the
dependent parents of the deceased member during their joint
lifetimes a sum equal to the amount which a surviving spouse
without children would have been entitled to receive: Provided,
That when there is but one dependent parent surviving, that parent
shall be entitled to receive during his or her lifetime one half
the amount which both parents, if living, would have been entitled
to receive.
The member may choose a higher percentage of surviving spouse
benefits by taking an actuarially determined reduced initial
benefit so that the chosen spouse benefit and initial benefit would
be actuarially equivalent to the normal spouse benefit and initial
benefit. The Retirement Board shall design these benefit options
and provide them as choices for the member to select. For the
purposes of this subsection, "initial benefit" means the benefit
received by the member upon retirement.
§15-2A-19. Credit toward retirement for member's prior military
service; credit toward retirement when member has
joined armed forces in time of armed conflict;
qualified military service.
(a) Any member who has previously served on active military
duty is entitled to receive additional credited service for the
purpose of determining the amount of retirement award under the provisions of this article for a period equal to the active
military duty not to exceed five years, subject to the following:
(1) That he or she has been honorably discharged from the
Armed Forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under this article, he or she has actually served with the
division Department for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who while a member of the division
Department was commissioned, enlisted or inducted into the Armed
Forces of the United States or, being a member of the reserve
officers' corps, was called to active duty in 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 Congress or by executive or other order of
the President, is entitled to and shall receive credit on the
minimum period of service required by law for retirement pay from
the service of the division of public safety Department, or its
predecessor agency, for a period equal to the full time that he or
she has or, pursuant to that commission, enlistment, induction or
call, shall 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 presented himself or herself to the
Superintendent and offered to resume service as an active member of
the division Department; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the Armed Forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(c) The total amount of military service credit allowable
under this section may not exceed five years for any member of the division Department.
(d) 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, 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.
§15-2A-21. Retirement credited service through member's use, as
option, of accrued annual or sick leave days.
Any member accruing annual leave or sick leave days may, after
the effective date of this section, elect to use the days at the
time of retirement to acquire additional credited service in this
retirement system. The days shall be applied on the basis of two
workdays' credit granted for each one day of accrued annual or sick
leave days, with each month of retirement service credit to equal
twenty workdays and with any remainder of ten workdays or more to
constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding
any provisions of the code to the contrary. The credited service
shall be allowed and not considered to controvert the requirement
of no more than twelve months' credited service in any year's
period.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
"Teacher member" means the following persons, if regularly
employed for full-time service: (a) Any person employed for
instructional service in the public schools of West Virginia; (b)
principals; (c) public school librarians; (d) superintendents of
schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher's
certificate; (f) the executive secretary of the retirement board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the state superintendent of
schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the state
superintendent performing services of an educational nature; (i)
employees of the state board of education who are performing
services of an educational nature; (j) any person employed in a
nonteaching capacity by the state board of education, the West Virginia board of regents [abolished], any county board of
education, the state department of education or the teachers
retirement board, if that person was formerly employed as a teacher
in the public schools; (k) all classroom teachers, principals and
educational administrators in schools under the supervision of the
division of corrections, the division of health or the division of
human services; and (l) employees of the state bod of school
finance, if that person was formerly employed as a teacher in the
public schools.
"Nonteaching member" means any person, except a teacher member,
who is regularly employed for full-time service by: (a) Any county
board of education; (b) the state board of education; (c) the West
Virginia board of regents [abolished]; or (d) the teachers
retirement board.
"Members of the administrative staff of the public schools"
means deans of instruction, deans of men, deans of women, and
financial and administrative secretaries.
"Members of the extension staff of the public schools" means
every agricultural agent, boys' and girls' club agent and every
member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
"Retirement system" means the state teachers retirement system
provided for in this article.
"Present teacher" means any person who was a teacher within the thirty-five years beginning the first day of July, one thousand
nine hundred thirty-four, and whose membership in the retirement
system is currently active.
"New entrant" means a teacher who is not a present teacher.
"Regularly employed for full-time service" means employment in a
regular position or job throughout the employment term regardless
of the number of hours worked or the method of pay.
"Employment term" means employment for at least ten months, a
month being defined as twenty employment days.
"Present member" means a present teacher who is a member of the
retirement system.
"Total service" means all service as a teacher while a member of
the retirement system since last becoming a member and, in addition
thereto, credit for prior service, if any.
"Prior service" means all service as a teacher completed prior
to the first day of July, one thousand nine hundred forty-one, and
all service of a present member who was employed as a teacher, and
did not contribute to a retirement account because he or she was
legally ineligible for membership during the service.
"Pick-up service" means service that a member was entitled to,
but which the employer has not withheld or paid for.
"Average final salary" means the average of the five highest
fiscal year salaries earned as a member within the last fifteen
fiscal years of total service credit, including military service as provided in this article, or if total service is less than fifteen
years, the average annual salary for the period on which
contributions were made.
"Accumulated contributions" means all deposits and all
deductions from the earnable compensation of a contributor minus
the total of all supplemental fees deducted from his or her
compensation.
"Regular interest" means interest at four percent compounded
annually, or a higher earnable rate if set forth in the formula
established in legislative rules, series seven of the consolidated
public retirement board.
"Refund interest" means interest compounded, according to the
formula established in legislative rules, series seven of the
consolidated public retirement board.
"Employer" means the agency of and within the state which has
employed or employs a member.
"Contributor" means a member of the retirement system who has an
account in the teachers accumulation fund.
"Beneficiary" means the recipient of annuity payments made under
the retirement system.
"Refund beneficiary" means the estate of a deceased contributor
or a person he or she has nominated as beneficiary of his or her
contributions by written designation duly executed and filed with
the retirement board. "Earnable compensation" means the full compensation actually
received by members for service as teachers whether or not a part
of the compensation is received from other funds, federal or
otherwise, than those provided by the state or its subdivisions.
Allowances from employers for maintenance of members shall be
considered a part of earnable compensation for those members whose
allowances were approved by the teachers retirement board and
contributions to the teachers retirement system were made, in
accordance therewith, on or before the first day of July, one
thousand nine hundred eighty.
"Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
"Member" means a member of the retirement system.
"Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state.
"Deposit" means a voluntary payment to his or her account by
a member.
"Plan year" means the twelve-month period commencing on the
first day of July and ending the following thirtieth day of June of
any designated year.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as it has been amended.
"Required beginning date" means the first day of April of the
calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the
calendar year in which the member retires or ceases covered
employment under the system.
(a) As used in this article, unless the context clearly
require a different meaning:
(1) "Accumulated contributions" means all deposits and all
deductions from the gross salary of a contributor plus regular
interest.
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
(4) "Average final salary" means the average of the five
highest fiscal year salaries earned as a member within the last
fifteen fiscal years of total service credit, including military
service as provided in this article, or if total service is less
than fifteen years, the average annual salary for the period on
which contributions were made.
(5) "Beneficiary" means the recipient of annuity payments made
under the retirement system.
(6) "Contributor" means a member of the retirement system who
has an account in the teachers accumulation fund.
(7) "Deposit" means a voluntary payment to his or her account by a member.
(8) "Employer" means the agency of and within the state which
has employed or employs a member.
(9) "Employment term" means employment for at least ten
months, a month being defined as twenty employment days.
(10) "Gross salary" means the fixed annual or periodic cash
wages paid by a participating public employer to a member for
performing duties for the participating public employer for which
the member was hired. Gross salary shall also include retroactive
payments made to a member to correct a clerical error, or pursuant
to a court order or final order of an administrative agency charged
with enforcing federal or state law pertaining to the member's
rights to employment or wages, with all such retroactive salary
payments to be allocated to and deemed paid in the periods in which
the work was or would have been done. Gross salary shall not
include lump sum payments for bonuses, early retirement incentives,
severance pay, or any other fringe benefit of any kind including,
but not limited to, transportation allowances, automobiles or
automobile allowances, or lump sum payments for unused, accrued
leave of any type or character.
(11) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
(12) "Member" means a member of the retirement system.
(13) "Members of the administrative staff of the public schools" means deans of instruction, deans of men, deans of women,
and financial and administrative secretaries.
(14) "Members of the extension staff of the public schools"
means every agricultural agent, boys' and girls' club agent and
every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
(15) "New entrant" means a teacher who is not a present teacher.
(16) "Nonteaching member" means any person, except a teacher
member, who is regularly employed for full-time service by: (a) Any
county board of education; (b) the State Board of Education; (c)
the West Virginia Board of Regents [abolished]; or (d) the Teachers
Retirement Board.
(17) "Pick-up service" means service that a member was
entitled to, but which the employer has not withheld or paid for.
(18) "Plan year" means the twelve-month period commencing on
the first day of July and ending the following thirtieth day of
June of any designated year.
(19) "Present member" means a present teacher who is a member
of the retirement system.
(20) "Present teacher" means any person who was a teacher
within the thirty-five years beginning the first day of July, one
thousand nine hundred thirty-four, and whose membership in the
retirement system is currently active.
(21) "Prior service" means all service as a teacher completed prior to the first day of July, one thousand nine hundred forty-
one, and all service of a present member who was employed as a
teacher, and did not contribute to a retirement account because he
or she was legally ineligible for membership during the service.
(22) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state.
(23) "Refund beneficiary" means the estate of a deceased
contributor or a person he or she has nominated as beneficiary of
his or her contributions by written designation duly executed and
filed with the retirement board.
(24) "Refund interest" means interest compounded, according to
the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(25) "Regular interest" means interest at four percent
compounded annually, or a higher earnable rate if set forth in the
formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(26) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay.
(27) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half years; or (b) the
calendar year in which the member retires or ceases covered employment under the system after having attained the age of
seventy and one half years.
(28) "Retirement system" means the State Teachers Retirement
System provided for in this article.
(29) "Teacher member" means the following persons, if
regularly employed for full-time service: (a) Any person employed
for instructional service in the public schools of West Virginia;
(b) principals; (c) public school librarians; (d) superintendents
of schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher's
certificate; (f) the Executive Secretary of the Retirement Board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the State Superintendent of
Schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the State
Superintendent performing services of an educational nature; (i)
employees of the State Board of Education who are performing
services of an educational nature; (j) any person employed in a
nonteaching capacity by the State Board of Education, the West
Virginia Board of Regents, any county board of education, the State
Department of Education or the Teachers Retirement Board, if that
person was formerly employed as a teacher in the public schools;
(k) all classroom teachers, principals and educational
administrators in schools under the supervision of the Division of Corrections, the Division of Health or the Division of Human
Services; and (l) employees of the State Board of School Finance,
if that person was formerly employed as a teacher in the public
schools.
(30) "Total service" means all service as a teacher while a
member of the retirement system since last becoming a member and,
in addition thereto, credit for prior service, if any.
The masculine gender shall be construed so as to include the
feminine.
Age in excess of seventy years shall be considered to be
seventy years.
§18-7A-14. Contributions by members.
(a) At the end of each month every member of the retirement
system shall contribute six percent of that member's monthly
earnable compensation gross salary to the Retirement Board:
Provided, That any member employed by the West Virginia Board of
Directors of the State College System or the Board of Trustees of
the University System at an institution of higher education under
its control shall contribute on the member's full earnable
compensation, unless otherwise provided in section fourteen-a of
this article.
(b) Annually, the contributions of each member shall be
credited to the member's account in the Teachers Accumulation Fund. The contributions shall be deducted from the salaries of the
members as herein prescribed, and every member shall be deemed to
have given consent to such deductions. No deductions, however,
shall be made from the earnable compensation of any member who
retired because of age or service, and then resumed service unless
as provided in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable
under this article, shall equal annually the total deductions from
the earnable compensation of members required by this section.
Beginning the first day of July, one thousand nine hundred ninety-
four, the rate shall be seven and one-half percent; beginning on
the first day of July, one thousand nine hundred ninety-five, the
rate shall be nine percent; beginning on the first day of July, one
thousand nine hundred ninety-six, the rate shall be ten and one-
half percent; beginning on the first day of July, one thousand nine
hundred ninety-seven, the rate shall be twelve percent; beginning
on the first day of July, one thousand nine hundred ninety-eight,
the rate shall be thirteen and one-half percent; and beginning on
the first day of July, one thousand nine hundred ninety-nine and
thereafter, the rate shall be fifteen percent.
(d) Payment by an employer to a member of the sum specified in
the employment contract minus the amount of the employee's
deductions shall be deemed to be a full discharge of the employer's
contractual obligation as to earnable compensation.
(e) Each contributor shall file with the Retirement Board or
with the employer to be forwarded to the Retirement Board an
enrollment form showing the contributor's date of birth and other
data needed by the Retirement Board.
§18-7A-17. Statement and computation of teachers' service;
qualified military service.
(a) Under rules adopted by the Retirement Board, each teacher
shall file a detailed statement of his or her length of service as
a teacher for which he or she claims credit. The Retirement Board
shall determine what part of a year is the equivalent of a year of
service. In computing the service, however, it shall credit no
period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of
service performed in any calendar year.
(b) For the purpose of this article, the Retirement Board
shall grant prior service credit to new entrants and other members
of the retirement system for service in any of the Armed Forces of
the United States in any period of national emergency within which
a federal Selective Service Act was in effect. For purposes of
this section, "Armed Forces" includes Women's Army Corps, women's
appointed volunteers for emergency service, Army Nurse Corps,
SPARS, Women's Reserve and other similar units officially parts of
the military service of the United States. The military service is considered equivalent to public school teaching, and the salary
equivalent for each year of that service is the actual salary of
the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military
service shall not exceed ten years for any one member, nor shall it
exceed twenty-five percent of total service at the time of
retirement. Notwithstanding the preceding provisions of this
subsection, contributions, benefits and service credit with respect
to qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The Retirement Board
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the Retirement Board in section one, article ten-d, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with Section 414(u) of the Internal
Revenue Code.
No military service credit may be used in more than
one retirement system administered by the Consolidated Public
Retirement Board.
(c) For service as a teacher in the employment of the federal
government, or a state or territory of the United States, or a
governmental subdivision of that state or territory, the Retirement
Board shall grant credit to the member:
Provided, That the member shall pay to the system double the amount he or she contributed
during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be
determined by the Retirement Board. The interest shall be
deposited in the reserve fund and service credit granted at the
time of retirement shall not exceed the lesser of ten years or
fifty percent of the member's total service as a teacher in West
Virginia. Any transfer of out-of-state service, as provided in
this article, shall not be used to establish eligibility for a
retirement allowance and the Retirement Board shall grant credit
for the transferred service as additional service only:
Provided,
however, That a transfer of out-of-state service is prohibited if
the service is used to obtain a retirement benefit from another
retirement system:
Provided further, That salaries paid to members
for service prior to entrance into the retirement system shall not
be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be
denied on the basis of minimum income rules promulgated by the
teachers retirement board:
Provided, That the member or retired
member shall pay to the system the amount he or she would have
contributed during the year or years of public school service for
which credit was denied as a result of the minimum income rules of
the Teachers Retirement Board.(e) No members shall be considered absent from service while
serving as a member or employee of the Legislature of the state of
West Virginia during any duly constituted session of that body or
while serving as an elected member of a county commission during
any duly constituted session of that body.
(f) No member shall be considered absent from service as a
teacher while serving as an officer with a statewide professional
teaching association, or who has served in that capacity, and no
retired teacher, who served in that capacity while a member, shall
be considered to have been absent from service as a teacher by
reason of that service:
Provided, That the period of service
credit granted for that service shall not exceed ten years
:
Provided, however, That a member or retired teacher who is serving
or has served as an officer of a statewide professional teaching
association shall make deposits to the Teachers Retirement Board,
for the time of any absence, in an amount double the amount which
he or she would have contributed in his or her regular assignment
for a like period of time.
(g) The Teachers Retirement Board shall grant service credit
to any former or present member of the West Virginia Public
Employees Retirement System who has been a contributing member for
more than three years, for service previously credited by the
Public Employees Retirement System and: (1) Shall require the
transfer of the member's contributions to the Teachers Retirement System; or (2) shall require a repayment of the amount withdrawn
any time prior to the member's retirement:
Provided, That there
shall be added by the member to the amounts transferred or repaid
under this subsection an amount which shall be sufficient to equal
the contributions he or she would have made had the member been
under the Teachers Retirement System during the period of his or
her membership in the Public Employees Retirement System plus
interest at a rate to be determined by the Board compounded
annually from the date of withdrawal to the date of payment. The
interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary
parochial school, located within this state and fully accredited by
the West Virginia Department of Education, the Retirement Board
shall grant credit to the member:
Provided, That the member shall
pay to the system double the amount contributed during the first
full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined
by the Retirement Board. The interest shall be deposited in the
reserve fund and service granted at the time of retirement shall
not exceed the lesser of ten years or fifty percent of the member's
total service as a teacher in the West Virginia public school
system. Any transfer of parochial school service, as provided in
this section, may not be used to establish eligibility for a
retirement allowance and the Board shall grant credit for the transfer as additional service only:
Provided, however, That a
transfer of parochial school service is prohibited if the service
is used to obtain a retirement benefit from another retirement system.
(i) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service
credit for time served in that capacity:
Provided, That in order
to receive service credit under the provisions of this subsection
the following conditions must be met: (1) The member must have
moved from temporary employment with the participating employer to
permanent full-time employment with the participating employer
within one hundred twenty days following the termination of the
member's CETA employment; (2) the Board must receive evidence that
establishes to a reasonable degree of certainty as determined by
the Board that the member previously worked in CETA; and (3) the
member shall pay to the Board an amount equal to the employer and
employee contribution plus interest at the amount set by the Board
for the amount of service credit sought pursuant to this
subsection:
Provided, however, That the maximum service credit
that may be obtained under the provisions of this subsection is two
years:
Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of March, two
thousand three:
And provided further, That the Board shall
exercise due diligence to notify affected employees of the provisions of this subsection.
(j) If a member is not eligible for prior service credit or
pension as provided in this article, then his or her prior service
shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or
her former membership rights as specified in section thirteen of
this article only in case he or she has served two years since his
or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l),
inclusive, of this section, the Board shall verify as soon as
practicable the statements of service submitted. The Retirement
Board shall issue prior service certificates to all persons
eligible for the certificates under the provisions of this article.
The certificates shall state the length of the prior service
credit, but in no case shall the prior service credit exceed forty
years.
(m) Notwithstanding any provision of this article to the
contrary, when a member is or has been elected to serve as a member
of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her
teaching or administrative duties, the time served in discharge of
his or her duties of the legislative office are credited as time
served for purposes of computing service credit:
Provided, That
the Board may not require any additional contributions from that member in order for the Board to credit him or her with the
contributing service credit earned while discharging official
legislative duties:
Provided, however, That nothing herein may be
construed to relieve the employer from making the employer
contribution at the member's regular salary rate or rate of pay
from that employer on the contributing service credit earned while
the member is discharging his or her official legislative duties.
These employer payments shall commence as of the first day of June,
two thousand:
Provided further, That any member to which the
provisions of this subsection apply may elect to pay to the Board
an amount equal to what his or her contribution would have been for
those periods of time he or she was serving in the Legislature.
The periods of time upon which the member paid his or her
contribution shall then be included for purposes of determining his
or her final average salary as well as for determining years of
service:
And provided further, That a member utilizing the
provisions of this subsection is not required to pay interest on
any contributions he or she may decide to make.
(n) The Teachers Retirement Board shall grant service credit
to any former member of the State Police Death, Disability and
Retirement System who has been a contributing member for more than
three years, for service previously credited by the State Police
Death, Disability and Retirement System; and: (1) Shall require the
transfer of the member's contributions to the Teachers Retirement System; or (2) shall require a repayment of the amount withdrawn
any time prior to the member's retirement:
Provided, That the
member shall add to the amounts transferred or repaid under this
paragraph an amount which is sufficient to equal the contributions
he or she would have made had the member been under the Teachers
Retirement System during the period of his or her membership in the
State Police Death, Disability and Retirement System plus interest
at a rate
of six percent to be determined by the Board compounded
annually from the date of withdrawal to the date of payment. The
interest paid shall be deposited in the reserve fund.
§18-7A-23a. Terminal benefits.
For the purposes of this section, the term "accumulated net
benefit" means the aggregate amount of all benefits paid to or on
behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum
distributions paid to the member or to any other person on account
of the member's rights to benefits from the plan; (c) survivor
benefits paid to any person or persons on account of the member's
rights to benefits from the plan; and (d) any other distributions
on account of the member's rights to benefits from the plan whether
they are paid in the nature of a refund of contributions, interest
on contributions, lump sum distributions, or annuity type benefits.
The amounts counted will be the amounts actually paid without
regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated
employee contributions" means all money the member has contributed
to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct
remittance by the member to repay contributions and interest
previously distributed and direct remittance by the member to pay
imputed contributions for period which were not subject to
contributions but may be counted for benefit purposes under the
plan. The term accumulated employee contributions does not include
any amount credited under the provisions of the plan as interest on
member contributions.
For the purposes of this section, the term "member's account"
means the excess of the accumulated employee contributions over the
accumulated net benefit payments at any point in time and the term
"member" includes each individual who has contributed, or will
contribute in the future, to the teachers retirement system,
including each retirant.
(a) This section provides for the payment of the balance in
the a retired member's account to paid in the manner described
herein in the event that all claims to benefits payable to, or on
behalf of, a member expire before his or her member account has
been fully exhausted. The expiration of such rights to benefits
would be on the
occasion of later of either the death of the
retired member
and any and all beneficiaries who might have a claim to regular benefit payments under the plan, for any form of
benefit. Without limitation, this would include the demise of
beneficiaries of survivor annuities and beneficiaries of any lump
sum distributions drawing benefits under a straight life annuity,
or the death of a survivor annuitant drawing benefits under any
optional form of benefit selected by the retired member.
(b) In the event that all claims to benefits payable to, or on
behalf of, a
retired member expire, and the accumulated
employee
contributions exceed
his or her the accumulated net benefit
payments
paid to or on behalf of the retired member, the balance in
the
retired member's account shall be paid to the person or persons
as the
retired member has nominated by written designation duly
executed and filed with the board of trustees. If there be no
designated person or persons surviving the
retired member
following
the expiration of such claims, the excess of the accumulated
employee contributions over the accumulated net benefit, if any,
shall be paid to
his or her the retired member's estate.
In no case
may the plan retain any amount of the accumulated employee
contributions remaining in the member's account, but it shall
retain interest earned on the same accumulated employee
contributions in the instance of a member's or beneficiary's post-
retirement death. Provided, That the provisions of this section
shall be retroactive to all members who entered retirement status
on or after the ninth day of June, two thousand.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who
has had thirty-five years of total service as a teacher in West
Virginia, regardless of age, shall be eligible for an annuity. No
new entrant nor present member shall be eligible for an annuity,
however, if either has less than five years of service to his or
her credit.
(b) Any member who has attained the age of fifty-five years
and who has served thirty years as a teacher in West Virginia shall
be eligible for an annuity.
(c) Any member who has served at least thirty but less than
thirty-five years as a teacher
or nonteaching member in West
Virginia and is less than fifty-five years of age shall be eligible
for an annuity, but the same shall be the reduced actuarial
equivalent of the annuity the member would have received if such
member were age fifty-five at the time such annuity was applied
for.
(d) The request for any annuity shall be made by the member in
writing to the Retirement Board, but in case of retirement for
disability, the written request may be made by either the member or
the employer.
(e) A member shall be eligible for annuity for disability if
he or she satisfies the conditions in either subdivision (a) or subdivision (b) and meets the conditions of subdivision (c) as
follows:
(a) (1) His or her service as a teacher
or nonteaching member
in West Virginia must total at least ten years, and service as a
teacher
or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved.
(b)
(2) His or her service as a teacher
or nonteaching member
in West Virginia must total at least five years, and service as a
teacher
or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved and said disability is a direct and
total result of an act of student violence directed toward the
member.
(c) (3) An examination by a physician or physicians selected
by the Retirement Board must show that the member is at the time
mentally or physically incapacitated for service as a teacher, that
for such service the disability is total and likely to be
permanent, and that he or she should be retired in consequence
thereof.
(f) Continuance of the disability of the retired
teacher member shall be established by medical examination, as prescribed
in the preceding paragraph, annually for five years after
retirement, and thereafter at such times as the Retirement Board
may require. Effective the first day of July, one thousand nine
hundred ninety-eight, a member who has retired because of a
disability may select an option of payment under the provisions of
section twenty-eight of this article:
Provided, That any option
selected under the provisions of section twenty-eight of this
article shall be in all respects the actuarial equivalent of the
straight life annuity benefit the disability retiree receives or
would receive if the options under section twenty-eight of this
article were not available and that no beneficiary or beneficiaries
of the disability annuitant may receive a greater benefit, nor
receive any benefit for a greater length of time, than such
beneficiary or beneficiaries would have received had the disability
retiree not made any election of the options available under said
section twenty-eight. In determining the actuarial equivalence,
the Board shall take into account the life expectancies of the
member and the beneficiary:
Provided, however, That the life
expectancies may at the discretion of the Board be established by
an underwriting medical director of a competent insurance company
offering annuities. Payment of the disability annuity provided in
this article shall cease immediately if the Retirement Board finds
that the disability of the retired teacher no longer exists, or if the retired teacher refuses to submit to medical examination as
required by this section.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the Retirement
Board effective before the first day of July, one thousand nine
hundred eighty, shall be paid the annuities which were approved by
the Retirement Board.
(b) Annuities approved by the Board effective after the
thirtieth day of June, one thousand nine hundred eighty, shall be
computed as provided herein.
(c) Upon establishment of eligibility for a retirement
allowance, a member shall be granted an annuity which shall be the
sum of the following:
(a) (1) Two percent of the member's average salary multiplied
by his or her total service credit as a teacher. In this paragraph
"average salary" shall mean the average of the highest annual
salaries received by the member during any five years contained
within his or her last fifteen years of total service credit:
Provided, That the highest annual salary used in this calculation
for certain members employed by the West Virginia Higher Education
Policy Commission under its control shall be four thousand eight
hundred dollars, as provided by section fourteen-a of this article
and chapter;
(b) (2) The actuarial equivalent of the voluntary deposits of
the member in his or her individual account up to the time of his
or her retirement, with regular interest.
(d) The disability annuities of all teachers retired for
disability shall be based upon a disability table prepared by a
competent actuary approved by the Retirement Board.
(e) Upon the death of an annuitant who qualified for an
annuity as the surviving spouse of an active member or because of
permanent disability, the estate of the deceased or beneficiary
designated for such purpose shall be paid the difference, if any,
between the member's contributions with regular interest thereon,
and the sum of the annuity payments. Upon the death of a spouse
who was named as the member's survivor, a retirant may elect an
annuity option approved by the Retirement Board in an amount
adjusted on a fair basis to be of equal actuarial value as the
annuity prospectively in effect relative to the surviving member at
the time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments.
In computing the monthly payments, fractions of a cent shall be
deemed a cent. The monthly payments shall cease with the payment
for the month within which the beneficiary dies, and shall begin
with the payment for the month succeeding the month within which
the annuitant became eligible under this article for the annuity
granted; in no case, however, shall an annuitant receive more than four monthly payments which are retroactive after the Board
receives his or her application for annuity. Beginning with the
first day of July, one thousand nine hundred ninety-four, the
monthly payments shall be made on the twenty-fifth day of each
month, except the month of December, when the payment shall be made
on the eighteenth day of December. If the date of payment falls on
a holiday, Saturday or Sunday, then the payment shall be made on
the preceding workday.
(g) In case the Retirement Board receives data affecting the
approved annuity of a retired teacher, the annuity shall be changed
in accordance with the data, the change being effective with the
payment for the month within which the Board received the new data.
(h) Any person who has attained the age of sixty-five and who
has served at least twenty-five years as a teacher prior to the
first day of July, one thousand nine hundred forty-one, shall be
eligible for prior service credit and for prior service pensions as
prescribed in this section.
§18-7A-34. Loans to members.
(a) A An actively contributing member of the retirement
system upon written application may borrow from his or her
individual account in the Teachers Accumulation Fund, subject to
these restrictions:
(1) Loans shall be made in multiples of ten dollars, the minimal loan being one hundred dollars and the maximum being eight
thousand dollars:
Provided, That the maximum amount of any loan
when added to the outstanding balance of all other loans shall not
exceed the lesser of the following: (A)
Fifty Eight thousand
dollars reduced by the excess (if any) of the highest outstanding
balance of loans during the one-year period ending on the day
before the date on which the loan is made, over the outstanding
balance of loans to the member on the date on which the loan is
made; or (B) fifty percent of the member's contributions to his or
her individual account in the Teachers Accumulations Fund:
Provided, however, That if the total amount of loaned money
outstanding exceeds forty million dollars, the maximum shall not
exceed three thousand dollars until the Retirement Board determines
that loans outstanding have been reduced to an extent that
additional loan amounts are again authorized.
(2) Interest charged on the amount of the loan shall be six
percent per annum, or a higher rate as set by the Retirement Board:
Provided, That interest charged shall be commercially reasonable in
accordance with the provisions of section 72(p)(2) of the Internal
Revenue Code, and the federal regulations issued thereunder. If
repayable in installments, the interest shall not exceed the annual
rate so established upon the principal amount of the loan, for the
entire period of the loan, and such charge shall be added to the
principal amount of the loan. The minimal interest charge shall be for six months.
(3) No member shall be eligible for more than one outstanding
loan at any time.
(4) If a refund is payable to the borrower or his or her
beneficiary before he or she repays the loan with interest, the
balance due with interest to date shall be deducted from such
refund.
(5) From his or her monthly salary as a teacher
or a
nonteacher the member shall pay the loan and interest by deductions
which will pay the loan and interest in substantially level
payments in not more than sixty nor less than six months. Upon
notice of loan granted and payment due, the employer shall be
responsible for making such salary deductions and reporting them to
the Retirement Board. At the option of the Retirement Board, loan
deductions may be collected as prescribed herein for the collection
of members' contribution, or may be collected through issuance of
warrant by employer. If the borrower
decides to make loan payments
while not paid for service as a teacher, is no longer employed as
a teacher or nonteaching member, the borrower must make monthly
loan payments directly to the Consolidated Public Retirement Board
and the Retirement Board must accept such payments.
(6) The entire unpaid balance of any loan, and interest due
thereon, shall, at the option of the Retirement Board, become due and payable without further notice or demand upon the occurrence
with respect to the borrowing member of any of the following events
of default: (A) Any payment of principal and accrued interest on
a loan remains unpaid after the same becomes due and payable under
the terms of the loan or after such grace period as may be
established in the discretion of the Retirement Board; (B) the
borrowing member attempts to make an assignment for the benefit of
creditors of his or her refund or benefit under the retirement
system; or (C) any other event of default set forth in rules
promulgated by the Retirement Board in accordance with the
authority granted pursuant to section one, article ten-d, chapter
five of this code:
Provided, That any refund or offset of an
unpaid loan balance shall be made only at the time the member is
entitled to receive a distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Retirement Board may determine.
(8) Notwithstanding anything herein to the contrary, the loan
program authorized by this section shall comply with the provisions
of Section 72(p)(2) and Section 401 of the Internal Revenue Code,
and the federal regulations issued thereunder, and accordingly, the
Retirement Board is authorized to: (A) Apply and construe the
provisions of this section and administer the plan loan program in
such a manner as to comply with the provisions of Section 72(p)(2) and Section 401 of the Internal Revenue Code and the federal
regulations issued thereunder; (B) adopt plan loan policies or
procedures consistent with these federal law provisions; and (C)
take such actions as it deems necessary or appropriate to
administer the plan loan program created hereunder in accordance
with these federal law provisions. The Retirement Board is further
authorized in connection with the plan loan program to take any
actions that may at any time be required by the Internal Revenue
Service regarding compliance with the requirements of Section
72(p)(2) or Section 401 of the Internal Revenue Code, and the
federal regulations issued thereunder, notwithstanding any
provision in this article to the contrary.
(b) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any teacher or nonteacher who becomes a member of the Teachers
Retirement System on or after the first day of July, two thousand
five.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly require
a different meaning:
(1) "Defined contribution system" or "system" means the
Teachers' Defined Contribution Retirement System created and established by this article:
(2) "Existing retirement system" means the State Teachers
Retirement System established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or
employs a member of the existing retirement system;
(4) "Consolidated board" or "board" means the Consolidated
Public Retirement Board created and established pursuant to article
ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if
regularly employed for full-time service: (A) Any person employed
for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents
of schools and assistant county superintendents of schools; (E) any
county school attendance director holding a West Virginia teacher's
certificate;
(F) the executive secretary of the retirement board;
(g) (F) members of the research, extension, administrative or
library staffs of the public schools;
(h) (G) the State
Superintendent of Schools, heads and assistant heads of the
divisions under his or her supervision, or any other employee under
the State Superintendent performing services of an educational
nature;
(i) (H) employees of the State Board of Education who are
performing services of an educational nature;
(j) (I) any person
employed in a nonteaching capacity by the State Board of Education, any county board of education
or the State Department of Education
or the teachers retirement board, if that person was formerly
employed as a teacher in the public schools;
(k) (J) all classroom
teachers, principals and educational administrators in schools
under the supervision of the Division of Corrections and the
Department of Health and Human Resources;
(l) (K) any person who is
regularly employed for full-time service by any county board of
education
or the State Board of Education
or the teachers
retirement board; and
(m) (L) the administrative staff of the
public schools including deans of instruction, deans of men and
deans of women, and financial and administrative secretaries;
(6) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least
ten months, a month being defined as twenty employment days:
Provided, That no more than one year of service may be accumulated
in any twelve-month period;
(8) "Employer" means the agency of and within the State
of
West Virginia which has employed or employs a member;
(9) "Compensation" means the full compensation actually
received by members for service whether or not a part of the
compensation is received from other funds, federal or otherwise, than those provided by the state or its subdivisions;
(10) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the
employee's regular pay periods, and deposited into the member's
individual annuity account within the Defined Contribution
Retirement System;
(12) "Employer contribution" means an amount deposited into
the member's individual annuity account on a periodic basis
coinciding with the employee's regular pay period by an employer
from its own funds;
(13) "Annuity account" or "annuity" means an account
established for each member to record the deposit of member
contributions and employer contributions and interest, dividends or
other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active
employment of a participating employer and completion of all
conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical
incapacity requiring
the absence from employment service for at
least six months:
Provided, That the incapacity is shown by an
examination by a physician or physicians selected by the Board:
Provided, however, That for employees hired on or after the first day of July, two thousand five, permanent, total disability means
an inability to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can
be expected to result in death, or has lasted or can be expected to
last for a continuous period of not less than twelve months and the
incapacity is so severe that the member is likely to be permanently
unable to perform the duties of the position the member occupied
immediately prior to his or her disabling injury or illness.
(16) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending on the
following thirtieth day of June;
(17) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy-one and one-half
years; or (b)
the calendar year in which the member retires or otherwise ceases
employment with a participating employer
after having attained the
age of seventy and one-half years; and
(18) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
§18-7B-7. Participation in Teachers' Defined Contribution
Retirement System; limiting participation in
existing teachers retirement system.
(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as provided
for in this section, the
Teachers' Defined Contribution
Retirement System shall be the
single retirement program for all new employees whose employment
commences on or after that date
and all new employees shall be
required to participate. No additional new employees except as may
be provided
for in this section may be admitted to the existing
Teachers Retirement System.
(b) Members of the existing Teachers Retirement System whose
employment continues beyond the first day of July, one thousand
nine hundred ninety-one, and those whose employment was terminated
after the thirtieth day of June, one thousand nine hundred
ninety-one, under a reduction in force are not affected by
subsection (a) of this section and shall continue to contribute to
and participate in the existing Teachers Retirement System without
a change in plan provisions or benefits.
(c) Any person who was previously a member of the Teachers
Retirement System and who left participating employment before the
creation of the Defined Contribution System on the first day of
July, one thousand nine hundred ninety-one, and who later returned
to participating employment after the effective date of this
section has the right to elect to return to the existing Teachers
Retirement System or to elect to participate in the Defined
Contribution System. The election shall be made at the time of his
or her reemployment, is irrevocable and shall be made upon forms approved by and filed with the West Virginia Consolidated Public
Retirement Board.
(d) Any person who was, prior to the first day of July, one
thousand nine hundred ninety-one, a member of the existing Teachers
Retirement System who left participating employment before the
creation of the Teachers' Defined Contribution
Retirement System on
the first day of July, one thousand nine hundred ninety-one, and
who later returned to participating employment after that date and
who was precluded from returning to the existing Teachers
Retirement System as a result of prior provisions of this section,
may elect, pursuant to the provisions of this section, readmission
to the existing Teachers Retirement System:
Provided, That persons
who are eligible to, and who make the election to, terminate their
participation in the Defined Contribution System and to return to
participation in the existing Teachers Retirement System as
provided
for in this section shall make the election, on a form
approved by and filed with the West Virginia Consolidated Public
Retirement Board on or before the thirtieth day of June, two
thousand two:
Provided, however, That as a condition of the right
of readmission to the existing Teachers Retirement System,
persons
a person making the election provided
for in this section whose
Defined Contribution Account had not, prior to
such election, been
divided by a qualified domestic relations order, shall pay an
additional contribution to the existing Teachers Retirement System equal to one and one-half percent of his or her annual gross
compensation earned for each year during which he or she
participated in the Defined Contribution System and shall consent
and agree to the transfer of his or her total account balance in
the Defined Contribution System as of the most recent plan
valuation immediately preceding his or her transfer to the existing
Teachers Retirement System. For
persons a person making the
election provided
for in this section whose defined contribution
account had, prior to
such the election, previously been divided by
a qualified domestic relations order, the cost to
such person to
transfer to the existing Teachers Retirement System shall be
actuarially determined by the Consolidated Public Retirement Board.
Upon verification of that person's eligibility to return to
participation in the existing Teachers Retirement System and the
tender and transfer of funds as provided
for in this subsection,
persons a person making this election shall receive service credit
for the time the member participated in the Defined Contribution
System as if his or her participation had been in the existing
Teachers Retirement System:
Provided further, That the right to
terminate participation in the Defined Contribution System and to
resume participation in the existing Teachers Retirement System as
provided
for in this section is irrevocable and shall not apply to
any person who, while
members a member of the Teachers Retirement
System, voluntarily elected to terminate his or her membership in the Teachers Retirement System and to become a participant in the
Defined Contribution System pursuant to section eight of this
article.
(e) Any employee whose employment with an employer was
suspended or terminated while he or she served as an officer with
a statewide professional teaching association, is eligible for
readmission to the existing retirement system in which he or she
was a member.
(f) An employee whose employment with an employer or an
existing employer is suspended as a result of an approved leave of
absence, approved maternity or paternity break in service or any
other approved break in service authorized by the Board is eligible
for readmission to the existing retirement system in which he or
she was a member.
(g) In all cases in which a question exists as to the right of
an employee to readmission to membership in the existing Teachers
Retirement System, the Consolidated Public Retirement Board shall
decide the question.
(h) Any individual who is not a "member" or "employee" as
defined by section two of this article and any individual who is a
leased employee is not eligible to participate in the Teachers'
Defined Contribution System. For purposes of this section, 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. In all cases
in which a question exists as to whether an individual is eligible
for membership in this system, the Consolidated Public Retirement
Board shall decide the question.
§18-7B-7a. Plan closed to persons employed for the first time
after June, 2005; former employees.
The Retirement System created and established in this article
shall be closed and no new members accepted therein after the
thirtieth day of June, two thousand five.
Notwithstanding the
provisions of sections seven and eight of this article, all persons
who are regularly employed for full-time service as a member or an
employee whose initial employment commences after the thirtieth day
of June, two thousand five, shall become a member of the State
Teachers' Retirement System created and established in article
seven-a of this chapter:
Provided, That any person rehired after
the thirtieth day of June, two thousand five, shall become a member
of the Teachers' Defined Contribution Retirement System created and
established in this article, or of the Teachers Retirement System
created and established in article seven-a of this chapter,
depending upon which system he or she last contributed to while he
or she was employed with an employer mandating membership and
contributions to one of those plans:
Provided, however, That if,
and only if, the Teachers' Defined Contribution Retirement System is merged and consolidated with the Teachers Retirement System
pursuant to the provisions of article seven-c of this chapter, then
all employees shall be a member of the Teachers Retirement System
as of the first day of July, two thousand six, as provided in
article seven-c of this chapter.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the Defined Contribution
System shall contribute four and one-half percent of his or her
gross compensation by salary
reduction deduction.
Such The salary
reductions deductions shall be made by the employer
at the normal
payroll intervals and
shall be paid to the Teachers' Defined
Contribution Retirement System within fifteen days of the end of
the pay period: Provided, That the Board may require any employer
to make the payments within such shorter period as it may
determine, upon at least sixty days notice to the employer, if the
Board determines the employer has the technological capacity to
transfer the funds within the shorter period. The employer
payments shall be remitted
by the Board within five working days to
the private pension, insurance, annuity, mutual fund, or other
qualified company or companies designated by the Board to
administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to
an account or accounts established in the name of the member and
held in trust for the benefit of the member. An account agreement shall be issued to each member setting forth the terms and
conditions under which contributions are received, and the
investment and retirement options available to the member. The
Board shall
promulgate by the thirtieth day of June, one thousand
nine hundred ninety-one propose for legislative approval in
accordance with article three, chapter twenty-nine-a of this code,
pursuant to section six of this article, rules defining the minimum
requirements for the investment and retirement options to be
provided to the members.
The consolidated public employees retirement board shall study
the feasibility of employees making personal contributions to the
defined contribution system in addition to those required by this
section and the impact of the United States Internal Revenue Code
of one thousand nine hundred eighty-six, as amended, upon such
contributions. The results of said study and recommendations for
legislation to authorize such additional payments shall be
presented to the committee on pensions and retirement of each house
of the Legislature on or before the first day of October, one
thousand nine hundred ninety-six.
(c) Such rules The legislative rules proposed by the Board, to
the extent not inconsistent with the applicable provisions of the
Internal Revenue Code of the United States, shall provide for
varied retirement options including, but not limited to:
(1) Lump sum
or periodic payment distributions;(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;
(4) Variable annuities which gradually increase monthly
retirement payments:
Provided, That said increased payments are
funded solely by the existing current value of the member's account
at the time the member's retirement payments
commencement commence
and not, to any extent, in a manner which would require additional
employer or employee contributions to any member's account after
retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can
be made to members from their annuity account balances prior to
having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer
terminates after the completion of six complete years of employment
service shall be eligible to terminate his or her annuity account
and receive a distribution from the member's annuity account, in an
amount equal to the member's contribution plus one third of the
employer contributions and any earnings thereon. Any member whose
employment with a participating employer terminates after the
completion of nine complete years of employment service shall be
eligible to terminate his or her annuity account and receive a
distribution from the member's annuity account, in an amount equal to the member's contribution plus two thirds of the employer's
contributions and any earnings thereon. Any member whose
employment with a participating employer terminates after the
completion of twelve complete years of employment service shall be
eligible to terminate his or her annuity account and receive a
distribution of all funds contributed and accumulated in his or her
annuity account. Any member whose employment with a participating
employer terminates prior to the completion of six complete years
of employment service shall be eligible to terminate his or her
annuity account and receive a distribution from the member's
annuity account, in an amount equal to the member's contribution
plus any earnings thereon:
Provided, That on the death or
permanent, total disability of any member, that member shall be
eligible to terminate his or her annuity account and receive all
funds contributed to or accumulated in his or her annuity account.
(b) (1) Upon termination of employment, regardless of whether
the member has taken a distribution of all or a portion of his or
her vested account, the The remaining balance, if any, in the
member's
employer account
after the distribution that is not vested
shall be remitted and paid into a suspension account, hereby
created, to be administered by the Board. The Board shall
promulgate propose rules for legislative approval in accordance
with article three, chapter twenty-nine-a of this code rules
regarding the distribution of any balance in the special account created by this section:
Provided, That any funds in the account
shall be used solely for the purpose of reducing employer
contributions in future years.
(2) Any account balances remitted to the suspension account
herein shall be maintained by the Board in
said the suspension
account in the name of the terminated employee for a period of five
years following
initial remittance to the suspension account the
member's termination of employment. For each
said terminated
employee at the culmination of the
aforesaid five-year period, the
Board shall certify in writing to each contributing employer the
amount of the account
balances balance plus earnings thereon
attributable to each separate contributing
employers employer's
previously terminated
employees' accounts which have employee's
account which has been irrevocably forfeited due to the elapse of
a five-year period since termination pursuant to section sixteen of
this article.
(c) Upon certification to the several contributing employers
of the aggregate account balances plus earnings thereon which have
been irrevocably forfeited pursuant to this section, the several
contributing employers shall be permitted in the next succeeding
fiscal year or years to reduce their total aggregate contribution
requirements pursuant to section seventeen of this article, for the
then current fiscal year by an amount equal to the aggregate
amounts irrevocably forfeited and certified as such to each contributing employer:
Provided, That should the participating
employer no longer be contributing to the defined contribution
system, any funds in the account shall be paid directly to the
employer.
(d) Upon the
utilization use of the amounts irrevocably
forfeited to any contributing employer as a reduction in the then
current fiscal year contribution obligation and upon notification
provided by the several contributing employers to the Board of
their intention to
utilize use irrevocably forfeited amounts, the
Board shall direct the distribution of
said the irrevocably
forfeited amounts from the suspension account to be deposited on
behalf of the contributing employer to the member annuity accounts
of its then current employees pursuant to section seventeen of this
article:
Provided, That notwithstanding any provision of this
article to the contrary, when a member is or has been elected to
serve as a member of the Legislature, and the proper discharge of
his or her duties of public office
require requires that member to
be absent from his or her teaching, nonteaching or administrative
duties, the time served in discharge of his or her duties of the
legislative office are credited as time served for purposes of
computing service credit, regardless when this time was served:
Provided, however, That the Board may not require any additional
contributions from that member in order for the Board to credit him
or her with the contributing service credit earned while discharging official legislative duties:
Provided further, That
nothing herein may be construed to relieve the employer from making
the employer contribution at the member's regular salary rate or
rate of pay from that employer on the contributing service credit
earned while the member is discharging his or her official
legislative duties. These employer payments shall commence as of
the first day of July, two thousand three:
And provided further,
That any member to which the provisions of this subsection apply
may elect to pay to the Board an amount equal to what his or her
contribution would have been for those periods of time he or she
was serving in the Legislature.
.
§18-7B-12a. Federal minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this Defined Contribution System. This
section applies to plan years beginning after the thirty-first day
of December, one thousand nine hundred eighty-six. Notwithstanding
anything in this system to the contrary, the payment of benefits
under this article shall be determined and made in accordance with
Section 401 (a) (9) of the Internal Revenue Code and the
regulations thereunder,
including without limitation the incidental
death benefit provisions of Section 401 (a) (9)(G) of the Internal
Revenue Code and the regulations thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the Defined Contribution
System to any member shall be distributed to him or her not later
than the required beginning date, or be distributed to him or her
commencing not later than the required beginning date, in
accordance with regulations prescribed under Section 401 (a) (9) of
the Internal Revenue Code, over the life of the member or over the
lives of the member and his or her beneficiary or over a period not
extending beyond the life expectancy of the member and his or her
beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the system has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the system shall be
distributed by the thirty-first day of December of the calendar
year containing the fifth anniversary of the member's death, except
as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of the
beneficiary commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half
years; or
(B) The earlier of (i) The thirty-first day of December of the
calendar year in which the member died; or (ii) the thirty-first
day of December of the calendar year following the calendar year in
which the spouse died.
(d) For purposes of this section, any amount paid to a child
of a member will be treated as if it had been paid to the surviving
spouse of the member if such remaining amount becomes payable to
the surviving spouse when the child reaches the age of majority.
§18-7B-16. Years of employment service.
(a) A member of the Defined Contribution System who terminates
employment with a participating employer and does not remove any
funds from his or her
annuity vested employee and employer account,
or who removes the funds and repays them withing five years after termination, and becomes reemployed with a participating employer
within five years
shall retain his or her previous years of
employment service for purposes of the provisions of section eleven
of this article. does not forfeit any amounts placed into the
suspension account pursuant to section eleven of this article and
they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for
vesting purposes under section eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any
legislative rule contained in series three, involuntary cash-outs
to members may not be made after the thirtieth day of June, two
thousand five.
ARTICLE 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT
SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the "Teachers' Retirement Equity
Act."
§18-7C-2. Legislative findings and purpose.
The Legislature declares that the State of West Virginia and
its citizens have always believed in a strong public education
system. The Constitution of this State mandates a thorough and efficient public education system. The Legislature notes that the
quality of our state's education system is dependent,
inter alia,
upon the motivation and quality of its teachers and educational
service personnel.
The Legislature finds and declares that the State of West
Virginia is privileged to be the home of some of the best teachers
and education service personnel in this nation, and that our
teachers and education service personnel are dedicated and hard
working individuals. The Legislature further finds and declares
that our teachers and education service personnel deserve a
retirement program whereby they know in advance what their
retirement benefit will be, a defined benefit retirement program
where our teachers and service personnel will not have to bear the
risk of investment performance to receive their full retirement
benefit. The Legislature notes that uncertainty exists in the
investment markets, especially in the post September eleventh era,
and that placing this risk and uncertainty upon the state in the
form of a defined benefit plan will protect and ensure a meaningful
retirement benefit for our teachers and educational service
personnel.
The Legislature declares that it is in the best interests of
the teachers and public education in this state and conducive to
the fiscal solvency of the Teachers Retirement System that the
Teachers' Defined Contribution Retirement System be merged with the State Teachers Retirement System.
The Legislature also finds that a fiscally sound retirement
program with an ascertainable benefit aids in the retention and
recruitment of teachers and school service personnel, and that the
provisions of this article are designed to accomplish the goals set
forth in this section.
The Legislature has studied this matter diligently and in
making the determination to merge the two plans has availed itself
of an actuarial study of the proposed merger by the actuary of the
Consolidated Public Retirement Board as well as engaging the
service of two independent actuaries.
The Legislature further finds and declares that members of a
defined contribution system who must bear the attendant market risk
and performance of their investments are truly being provided a
significant and greater benefit where the defined contribution
system is replaced with a defined benefit system in which the
employer bears the risk of market fluctuations and investment
performance, especially where those members decide through an
election process whether to trade the defined contribution system
for a defined benefit system.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Defined Contribution System" means the Teachers' Defined
Contribution System created and established in article seven-b of
this chapter.
(2) "Existing retirement system" or "State Teachers Retirement
System" means the State Teachers Retirement System created and
established in article seven-a of this chapter.
(3) "Board" means the Consolidated Public Retirement Board
created and established in article ten-d, chapter five of this code
and its employees.
(4) "Member" means and includes any person who has at least
one dollar in the Defined Contribution System.
(5) "Assets" or "all assets" means all member contributions,
employer contributions and interest or asset appreciation in a
member's Defined Contribution Account, less any applicable fees as
approved by the Board.
(6) "Salary" or "annual salary" means the annual contract
salary for those persons working in accordance with an employment
contract and in any other event as an annualized amount determined
by multiplying a person's hourly rate of pay by two thousand eighty
hours.
(7) "Date of merger" means, in the event of a positive vote on
the merger, the first day of July, two thousand six.
§18-7C-4. Merger.
On the first day of July, two thousand six, the Teachers'
Defined Contribution Retirement System created and established in
this article shall be merged and consolidated with the Teachers
Retirement System created and established in article seven-a of
this chapter, pursuant to the provisions of this article:
Provided, That if the majority of the voting members of the
Teachers' Defined Contribution Retirement System do not elect in
favor of the merger, then all of the provisions of this article are
void and of no force and effect, and the Defined Contribution
System created and established in article seven-b of this chapter
shall continue as the retirement system for all members in that
system as of the thirtieth day of June, two thousand six.
If the merger provided for in this article occurs, should any
future increase of existing benefits or the creation of new
benefits under the Teachers Retirement System, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, cause any
additional unfunded actuarial accrued liability in the State
Teachers Retirement Pension System (calculated in an actuarially
sound manner) during any fiscal year, such additional unfunded
actuarial accrued liability of that pension system shall be fully
amortized over no more than the ten consecutive fiscal years
immediately following and beginning on the date of any legislative
enactment which provides for the increase in benefits or which provides for new benefits becomes effective.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two
thousand five, the Consolidated Public Retirement Board shall begin
an educational program with respect to the merger of the Defined
Contribution Plan with the State Teachers Retirement System. This
education program shall address, at a minimum, the law providing
for the merger, the mechanics of the merger, the election process,
relevant dates and time periods, the benefits, potential advantages
and potential disadvantages if members fail or refuse to approve
the merger and thereby elect to remain in the Defined Contribution
System, the benefits, potential advantages and potential
disadvantages of becoming a member of the Teachers Retirement
System, potential state and federal tax implications in general
attendant to the various options available to the members and any
other pertinent information deemed relevant by the Board. The
Board shall provide this information through its website, by
written materials, electronic materials or both written and
electronic materials delivered to each member and by classes or
seminars, if, in the best judgment of the Board, the classes and
seminars are required to provide the necessary education for
members to make an informed decision with respect to the election.
The Board shall also provide this information through computer
programs, or, at the discretion of the Board, through a program of individual counseling which is optional on the part of the member,
and by any other educational program or programs deemed necessary
by the Board.
(b) The Board shall provide each member with a copy of the
written or electronic educational materials and with a copy of the
notice of the election. The notice shall provide full and
appropriate disclosure regarding the merger and of the election
process, including the date of the election. The Board shall also
cause notice of the election to be published in at least ten
newspapers of general circulation in this state. This notice shall
be by Class III legal advertisement published in accordance with
the provisions of article three, chapter fifty-nine of this code.
The Board shall cause this notice to be published not later than
thirty days prior to the beginning of the election period and not
sooner than sixty days prior to the beginning of the election
period.
(c) It is the responsibility of each member of the Defined
Contribution Pan to keep the Board informed of his or her current
address. If a member does not keep the Board informed of his or
her current address, he or she is deemed to have waived his or her
right to receive any information from the Board with respect to the
purposes of this article.
(d) Once the Board has complied with the provisions of this
section, every member of the Defined Contribution Plan is deemed to have actual notice of the election and all matters pertinent
thereto.
§18-7C-6. Conversion of assets from defined contribution system to
State Teachers Retirement System.
(a) If a majority of members voting elect to merge the defined
contribution system into the State Teachers Retirement System, the
consolidation and merger shall be governed by the provisions of
this article, the Defined Contribution Retirement System shall not
exist after the thirtieth day of June, two thousand six, and all
members thereof shall become members of the State Teachers
Retirement System as provided herein.
(b) Following the election, if the vote is in favor of the
merger, the Board shall transfer all assets in the defined
contribution account into the State Teachers Retirement System and
members have the option to pay into the State Teachers Retirement
System a one and one-half of one percent contribution for service
in the Defined Contribution Plan being recognized in the State
Teachers Retirement System. This contribution shall be calculated
based on the member's salary as of the thirtieth day of June, two
thousand five, and the members attained age on that date, applying
both an annual backward salary scale projection from that date for
prior years based upon the salary scale assumption applied in the
actuarial valuation dated the first day of July, two thousand four, for the Teachers Retirement System and a one year forward salary
scale projection for the year ending on the thirtieth day of June,
two thousand six.
(c) The Board shall make available to the members a loan in
accordance with the provisions of section thirty-four, article
seven-a of this chapter to be used by the members to pay all or a
part of the one and one-half percent amount established in this
section. Notwithstanding any provision of this code, any rule or
any policy of the Board to the contrary, the interest rate on any
loan used to pay the one and one-half percent amount may not exceed
seven and one-half percent per annum and the amount total borrowed
for this section may not exceed twelve thousand dollars. In the
event a plan loan is used to pay the one and one-half percent, the
Board shall make any necessary actuarial adjustments at the time
the loan is made. The Board shall make this plan loan available
for members until the thirtieth day of June, two thousand seven.
(d) The Board shall develop and institute a payroll deduction
program for the repayment of the plan loan established in this
section.
(e) If the merger and consolidation is elected by a majority
of those persons voting, as of the first day of July, two thousand
six, the members' contribution rate shall become six percent of his
or her salary or wages and all members who make a contribution into
the State Teachers Retirement System on or after the first day of July, two thousand six, shall be governed by the provisions of
article seven-a of this chapter, subject to the provisions of this
article.
(f) In the event a member has withdrawn or cashed out part of
his or her defined contribution plan, that member will not be given
credit for those moneys cashed out or withdrawn. The Board shall
make an actuarial determination as to the amount of credit a member
loses on the amounts he or she has withdrawn or cashed out, which
actuarial adjustment shall be expressed as a loss of service
credit:
Provided, That a member may repay those amounts he or she
previously cashed out or withdrew, along with interest determined
by the Board and receive the same credit as if the withdrawal or
cash out never occurred. If the repayment is five or more years
following the cash out or withdrawal, then he or she must repay any
forfeited employer contribution account balance along with interest
determined by the Board in addition to repaying the cash out or
withdrawn amount.
(g) Where the member has cashed out of his or her teacher
defined contribution plan account balance after the last day of
June, two thousand one, and that member wishes to repurchase
defined contribution plan service after the thirtieth day of June,
two thousand six, then the member must repay the teachers
retirement plan.
(h) Any prior service in the State Teachers Retirement System a member may have is not affected by the provisions of this
article.
§18-7C-7. Service credit in State Teachers Retirement System
following merger.
Any member transferring all of his or her assets from the
defined contribution system to the State Teachers Retirement System
pursuant to the provisions of this article, and who has not made
any withdrawals from his or her defined contribution plan, is
entitled to service credit in the State Teachers Retirement System
for each year, or part thereof, as governed by the provisions of
article seven-a of this chapter, the member worked and contributed
to the Defined Contribution Plan. Any member who has made
withdrawals or cash outs will receive service credit based upon the
amounts transferred and the Board shall make the appropriate
actuarial determination of and the appropriate actuarial adjustment
to the service credit the member will receive.
§18-7C-8. Election; Board may contract for professional services.
(a) The Board shall arrange for and hold an election for the
members of the defined contribution plan on the issue of merging
and consolidating the Defined Contribution Plan into the State
Teachers Retirement Plan with the result being that, if a majority
of the members casting ballots vote in the positive on the issue,
all members of the Defined Contribution Plan will transfer, or have transferred, all assets held by them or on their behalf in the
Defined Contribution Plan to, and they shall become members of and
be entitled to the benefits of, the State Teachers Retirement
System and be governed by the provisions of the State Teachers
Retirement System subject to the provisions of this article:
Provided, That at least one-half of the members of the Defined
Contribution Plan must vote on the question in order for the
election to be valid and binding.
(b) Any person who has one dollar or more in a defined
contribution account created and established pursuant to article
seven-b of this chapter, is allowed to vote on the question of the
merger.
(c) The Board may retain the services of the professionals it
deems necessary to: (1) Assist in the preparation of educational
materials for members of the Defined Contribution Plan to inform
these members of their options in the election; (2) assist in the
educational process of the members; (3) assist in the election
process and the election; and (4) ensure compliance with all
relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process
set forth in this article in specific, and due to the nature of the
professional services required by the Consolidated Public
Retirement Board in general, the provisions of article three,
chapter five-a of this code, relating to the Division of Purchasing of the Department of Administration do not apply to any contracts
for any actuarial services, investment services, legal services or
other professional services authorized under the provisions of this
article.
(e) The election provided for in this section may be held
through certified mail or in any other way the Board determines is
in the best interest of the members. Each ballot shall contain the
following language, in bold fifteen point type: "By casting this
ballot I am making an educated, informed and voluntary choice as to
my retirement and the retirement system of which I wish to be a
member. I am also certifying that I understand the consequences of
my vote in this election." Each ballot shall be signed by the
member voting. The Board shall retain the ballots in a permanent
file. Any unsigned ballot is void.
(f) The election period shall begin not later than the first
day of March, two thousand six, and the Board shall ascertain the
results of the election not later than the last day of March, two
thousand six. The Board shall certify the results of the election
to the Governor, to the Legislature and to the members not later
than the fifth day of April, two thousand six.
(g) The election period shall terminate and no votes may be
cast or counted after the twelfth day of March, two thousand six,
except that if the election is conducted through the United States
mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand six, in order to be counted.
(h) The Board shall take all necessary steps to see that the
merger does not affect the qualified status with the Internal
Revenue Service of either retirement plan.
§18-7C-9. Election deemed final.
(a) The election is deemed final and each member, whether he
or she votes, or fails to vote, shall thereafter be bound by the
results of the election. Every member is deemed to have made an
informed, educated, knowing and voluntary decision and choice with
respect to the election. Those members who fail or refuse to vote
are also deemed to have made an informed, educated, knowing and
voluntary decision and choice with respect to the election and with
respect to voting and shall be bound by the results of the election
as if he or she voted in the same.
(b) Only one election may be held pursuant to the provisions
of this article on the issue of merging and consolidating the
Defined Contribution Plan with the State Teachers Retirement Plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against
his or her defined contribution account is allowed to repurchase
service in the State Teachers Retirement System by repaying any
moneys previously distributed to the alternate payee along with the
interest as set by the Board:
Provided, That a member shall repay any amounts under this section by the last day of June, two
thousand twelve. The provisions of this section are void and of no
effect if the members of the Defined Contribution Plan fail to
elect to merge and consolidate the Defined Contribution Plan with
the State Teachers Retirement System.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger
provided in this article occurs, is subject to the vesting schedule
set forth in article seven-a of this chapter:
Provided, That if a
member is vested under the Defined Contribution Plan and his or her
last contribution was not made to the State Teachers Retirement
System, that member is subject to the vesting schedule set forth in
article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Defined Contribution Plan who has made
a contribution to the State Teachers Retirement System after the
date of merger is guaranteed a minimum benefit equal to his or her
contributions to the Defined Contribution Plan as of the thirtieth
day of June, two thousand six, plus his or her vested employer
account balance as of that date, as stated by the Board or the
Board's professional contractor.
(b) A member of the Defined Contribution Plan who has made
contributions to the State Teachers Retirement System after the thirtieth day of June, two thousand six, where the Defined
Contribution Plan has been merged into the State Teachers
Retirement System pursuant to the provisions of this article, shall
have, upon eligibility to receive a distribution under article
seven-a of this chapter, at a minimum, the following three options:
(1) The right to receive an annuity from the State Teachers
Retirement System created and established in article seven-a of
this chapter, based upon the benefit and vesting provisions of that
article; (2) the right to withdraw from the State Teachers
Retirement Plan and receive his or her member accumulated
contributions plus regular interest thereon as set forth in article
seven-a of this chapter; or (3) the right to withdraw and receive
his or her original vested defined contribution account balance as
of the date of the merger as determined by the Board or its
professional third party benefits administrator pursuant to the
vesting provisions of section twelve of this article.
(c) Any member of the Teachers' Defined Contribution System
who makes no contribution to the State Teachers Retirement System
following approval of the merger and following the date of merger
is guaranteed the receipt of the amount in his or her total vested
account in the Defined Contribution Plan on the date of merger plus
interest thereon at four percent accruing from the date of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by the Board following the election, if the result of the election is
in favor of merger and consolidation, may petition the Board and
receive an administrative hearing on the matter in dispute. The
administrative decision may be appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or
void, the remaining provisions of this article shall be void and of
no effect and, to this end, the provisions of this article are
hereby declared to be nonseverable.".