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Introduced Version House Bill 4680 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 4680


(By Delegates Ashley, White, Boggs,
Anderson and Border)
[Introduced February 18, 2008; referred to the
Committee on Finance.]



A BILL to amend and reenact §5-10-48 of the Code of West Virginia, 1931, as amended, relating to allowing for expanded employment of retired state employees in areas of critical need.

Be it enacted by the Legislature of West Virginia:
That §5-10-48 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-48. Reemployment after retirement; options for holder of elected public office.

(a) The Legislature finds that a compelling state interest exists in maintaining an actuarially sound retirement system and that this interest necessitates that certain limitations be placed upon an individual's ability to retire from the system and to then later return to state employment as an employee with a participating public employer while contemporaneously drawing an annuity from the system. The Legislature hereby further finds and declares that the interests of the public are served when persons having retired from public employment are permitted, within certain limitations, to render post-retirement employment in positions of public service, either in elected or appointed capacities. The Legislature further finds and declares that because of occasional and periodic shortages of qualified state employees, a compelling state interest exists in expanding the use of retired state employees to provide service in areas of critical need and shortage. The Legislature further finds that diverse circumstances exist among the various state agencies for the expanded use of retired state employees. For the purposes of this section, "area of critical need and shortage" means an area of education, training or experience in which the number of available state employees who have the education, training or experience in that area and who are not retired is insufficient to meet the projected need for these employees. The Legislature further finds and declares that it has the need for qualified employees and that in many cases an employee of the Legislature will retire and be available to return to work for the Legislature as a per diem employee. The Legislature further finds and declares that in many instances these employees have particularly valuable expertise which the Legislature cannot find elsewhere. The Legislature further finds and declares that reemploying these persons on a limited per diem basis after they have retired is not only in the best interests of this state, but has no adverse effect whatsoever upon the actuarial soundness of this particular retirement system.
(b) For the purposes of this section: (1) "Regularly employed on a full-time basis" means employment of an individual by a participating public employer, in a position other than as an elected or appointed public official, which normally requires twelve months per year service and/or requires at least one thousand forty hours of service per year in that position; (2) "temporary full-time employment or temporary part-time employment" means employment of an individual on a temporary or provisional basis by a participating public employer, other than as an elected or appointed public official, in a position which does not otherwise render the individual as regularly employed; (3) "former employee of the Legislature" means any person who has retired from employment with the Legislature and who has at least ten years' contributing service with the Legislature; and (4) "reemployed by the Legislature" means a former employee of the Legislature who has been reemployed on a per diem basis not to exceed one hundred seventy-five days per calendar year.
(c) Except as provided in subsection (d) of this section, in the event a retirant becomes regularly employed on a full-time basis by a participating public employer, payment of his or her annuity shall be suspended during the period of his or her reemployment and he or she shall become a contributing member to the retirement system. If his or her reemployment is for a period of one year or longer, his or her annuity shall be recalculated and he or she shall be granted an increased annuity due to such additional employment, said annuity to be computed according to section twenty-two of this article. A retirant may accept temporary full-time or temporary part-time employment from a participating employer without suspending his or her retirement annuity so long as he or she does not receive annual compensation in excess of fifteen thousand dollars: Provided, That a retirant may be employed by the Legislature on a per diem basis without suspension of the retirement annuity if the retirant's annual compensation from the Legislature does not exceed twenty thousand dollars.
(d) (1) A person receiving retirement benefits under this article or who is entitled to retirement benefits during the fiscal year in which that person retired may accept employment as a temporary employee for an unlimited number of days each fiscal year without affecting the monthly retirement benefit in which the retirant is otherwise entitled if the following conditions are satisfied:
(A) The state agency adopts a policy recommended by the cabinet secretary and approved by the Governor to address areas of critical need and shortage;
(B) The policy sets forth the areas of critical need and shortage in the agency in accordance with the definition of area of critical need and shortage set forth in subsection (a) of this section;
(C) The policy provides for the employment of retirants as temporary employees during the fiscal year on an expanded basis in areas of critical need and shortage as provided in this subsection;
(D) The policy provides that a retirant may be employed as a temporary employee in an area of critical need and shortage on an expanded basis as provided in this subsection only when no other employee who has the requisite education, training or experience in the area and who is not retired is available and accepts the substitute assignment;
(E) The policy is effective for one fiscal year only and is subject to annual renewal by the cabinet secretary, with approval of the Governor;
(F) The Division of Personnel in the Department of Administration approves the policy and the use of retirants as temporary employees on an expanded basis in areas of critical need and shortage as provided in this subsection; and
(G) Prior to employment of a retirant beyond the post-retirement employment limitations established by the Consolidated Public Retirement Board, the cabinet secretary submits to the Consolidate Public Retirement Board, in a form approved by the retirement board, an affidavit signed by the cabinet secretary stating the name of the agency, the fact that the agency has adopted a policy to employ retirants as temporary employees to address areas of critical need and shortage and the name or names of the person or persons to be employed pursuant to the policy.
(2) Any person who retires and begins work as a temporary employee within the same month shall lose those retirement benefits attributed to the annuity reserve, effective from the first day of employment as a temporary employee in that month and ending with the month following the date the retirant ceases to perform service as a temporary employee.
(3) Retirants employed to perform expanded temporary service pursuant to this subsection are considered day-to-day, temporary, part-time employees. The temporary employees are not eligible for additional pension or other benefits paid to regularly employed employees and shall not accrue seniority.
(4) When a retirant is employed as a temporary employee to fill a vacant position, the cabinet secretary shall continue to post the vacant position until it is filled with regularly employed employee.

(d) (e) In the event a member retires and is then subsequently elected to a public office or is subsequently appointed to hold an elected public office, or is a former employee of the Legislature who has been reemployed by the Legislature, he or she has the option, notwithstanding subsection (c) of this section, to either:
(1) Continue to receive payment of his or her annuity while holding such public office or during any reemployment of a former employee of the Legislature on a per diem basis, in addition to the salary he or she may be entitled to as such office holder or as a per diem reemployed former employee of the Legislature; or
(2) Suspend the payment of his or her annuity and become a contributing member of the retirement system as provided in subsection (c) of this section. Notwithstanding the provisions of this subsection, a member who is participating in the system as an elected public official may not retire from his or her elected position and commence to receive an annuity from the system and then be reappointed to the same position unless and until a continuous six-month period has passed since his or her retirement from the position: Provided, That a former employee of the Legislature may not be reemployed by the Legislature on a per diem basis until at least sixty days after the employee has retired: Provided, however, That the limitation on compensation provided by subsection (b) of this section does not apply to the reemployed former employee: Provided further, That in no event may reemployment by the Legislature of a per diem employee exceed one hundred seventy-five days per calendar year.
(e) (f) A member who is participating in the system simultaneously as both a regular, full-time employee of a participating public employer and as an elected or appointed member of the legislative body of the state or any political subdivision may, upon meeting the age and service requirements of this article, elect to retire from his or her regular full-time state employment and may commence to receive an annuity from the system without terminating his or her position as a member of the legislative body of the state or political subdivision: Provided, That the retired member shall not, during the term of his or her retirement and continued service as a member of the legislative body of a political subdivision, be eligible to continue his or her participation as a contributing member of the system and shall not continue to accrue any additional service credit or benefits in the system related to the continued service.
(f) (g) Notwithstanding the provisions of section twenty-seven-b of this article, any publicly elected member of the legislative body of any political subdivision or of the State Legislature, the Clerk of the House of Delegates and the Clerk of the Senate may elect to commence receiving in-service retirement distributions from this system upon attaining the age of seventy and one-half years: Provided, That the member is eligible to retire under the provisions of section twenty or twenty-one of this article: Provided, however, That the member elects to stop actively contributing to the system while receiving such in-service distributions.
(g) (h) The provisions of section twenty-two-h of this article are not applicable to the amendments made to this section during the two thousand six regular session.



NOTE: The purpose of this bill is to allow for expanded temporary employment of retired state employees in areas of critical need.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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