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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 431
(By Senators Jenkins and McCabe)
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[Introduced March 4, 2013; referred to the Committee on Pensions;
and then to the Committee on Finance .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §5-10D-11, relating
to the liability of a participating public employer and its
successor to pay delinquent retirement contributions,
delinquency fees and related costs; and enforcement and
collection of the costs by the Consolidated Public Retirement
Board.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §5-10D-11, to read as
follows:
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-11. Liability of participating public employer for
delinquent retirement contributions; liability of participating public employer's successor for
delinquent retirement contributions; lien for
delinquent contributions; collection by suit.
(a) A participating public employer of a public retirement
system administered pursuant to this article that fails, for a
period of sixty days, to pay a: (i) Employee retirement
contribution; (ii) employer retirement contribution; (iii)
delinquency fee; (iv) other fees, charges or costs related thereto;
or (v) any combination of (i) through (iv), is liable for the
amount pursuant to this article.
(b) If a participating public employer of a public retirement
system administered pursuant to this article: (i) Sells all or
substantially all of its stock or assets; (ii) merges with another
entity; (iii) dissolves its business; or (iv) participates,
voluntarily or involuntarily, in an event which causes its business
to terminate, all unpaid employee retirement contributions,
employer retirement contributions, delinquency fees and other fees,
charges, or costs related thereto, shall be paid within thirty days
of the date of applicable event identified in (i) through (iv).
(c) A transferee, successor or assignee of a participating
public employer of a public retirement system administered pursuant
to this article is liable for the payment of all employee
retirement contributions, employer retirement contributions,
delinquency fees, and other fees, charges, or costs related thereto, if the participating public employer does not pay those
amounts as provided in subsection (b) of this section.
(d) All amounts due to the Consolidated Public Retirement
Board from a participating public employer under this article is a
debt owed to the Consolidated Public Retirement Board enforceable
by a lien on all assets of a participating public employer, or its
transferee, successor or assignee within this state. The lien
attaches to all assets of a participating public employer within
this state, or all assets of its transferee, successor or assignee
on the date that any amount owed to the Consolidated Public
Retirement Board is due. If a participating public employer, or
its transferee, successor or assignee fails to pay an amount owed
to the Consolidated Public Retirement Board under this article for
a period of more than sixty days, the Consolidated Public
Retirement Board may enforce the lien against the participating
public employer, or its transferee, successor or assignee by
instituting an action in the Circuit Court of Kanawha County. In
the event that the Consolidated Public Retirement Board institutes
an action against a participating public employer, or its
transferee, successor, or assignee to enforce a lien, the
Consolidated Public Retirement Board is entitled to recover the
amounts identified in subsection (a) of this section and in
addition to those amounts, is entitled to recover all fees and
costs incurred by the Consolidated Public Retirement Board during the pendency of the action, including, without limitation, accrued
interest, expert witness costs, filing fees, deposition costs and
reasonable attorney fees.
(e) If a section, subsection, subdivision, provision, clause
or phrase of this article or its application to any person or
circumstance is held unconstitutional or invalid, the
unconstitutionality or invalidity does not affect other sections,
subsections, subdivisions, provisions, clauses or phrases or
applications of the article, and to this end each and every
section, subsection, subdivision, provision, clause and phrase of
this article are declared to be severable. The Legislature declares
that it would have enacted the remaining sections, subsections,
subdivisions, provisions, clauses and phrases of this article even
if it had known that any sections, subsections, subdivisions,
provisions, clauses and phrases of this article would be declared
to be unconstitutional or invalid, and that it would have enacted
this article even if it had known that its application to any
person or circumstance would be held to be unconstitutional or
invalid.
NOTE: The purpose of this bill is to hold liable any
participating public employer owing delinquent retirement
contributions to the board, to provide that a public employer's
successor is liable for all delinquent retirement contributions and
associated fees to be paid to the board within thirty days of
termination of business, to provide that all debts owed the board
be enforceable in county circuit court by attaching a lien on all assets of a public employer or its successor and creating a
severability clause.
§5-10D-11 is new; therefore, strike-throughs and underscoring
have been omitted.