COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 301
(By Senators Foster, Plymale and Stollings)
____________
[Originating in the Committee on Finance; reported February 14,
2008.]
____________
A BILL to amend and reenact §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5,
§15-2A-6, §15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8,
§15-2A-9, §15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b,
§15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15, §15-2A-17 and
§15-2A-19 of the Code of West Virginia, 1931, as amended, all
relating to the West Virginia State Police Retirement Fund;
adding, deleting and modifying definitions; specifying the
title of West Virginia State Police Retirement System;
clarifying the usage of the terms "employee", "member" and
"retirant or retiree" as defined; clarifying the usage of the
terms "fund", "plan", "system" or "retirement system" as
defined; clarifying the usage of the term "base salary" as
defined; clarifying the usage of the term "agency" as defined;
eliminating minimum required eligible direct rollover
distributions paid directly to an eligible retirement plan; allowing distributions totaling less than two hundred dollars
within the definition of "eligible rollover distribution";
clarifying the usage of the term "surviving spouse" as
defined; clarifying surviving spouse payments when calculating
the pro rata share of annuity adjustments; specifying the time
frame that a retirant may receive deferred annuity payments;
clarifying the age requirement for a retirant receiving a duty
disability annuity; requiring the base salary of a member
receiving a duty disability annuity to be annualized until the
member has worked twelve months; specifying the title of the
West Virginia Insurance Commission; clarifying the time frame
for which a duty disability retirant receives a retirement
benefit; specifying that disability petitions certify the job
description of an employee applying for a disability
retirement; specifying the time frame for receipt of awards
and benefits to dependents of deceased employees; clarifying
that death awards and benefits be calculated for the last full
twelve-month employment period; requiring that death awards
and benefits be paid to a named beneficiary or to the estate
of the deceased member if there is no surviving spouse or
dependents; eliminating duplicate language referring to a
single receipt of state retirement benefits; and adding
provisions specifying the time frame for receipt of
beneficiary payments.
Be it enacted by the Legislature of West Virginia:
That §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6,
§15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9,
§15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13,
§15-2A-14, §15-2A-15, §15-2A-17 and §15-2A-19 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
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) "Accumulated contributions" means the sum of all amounts
deducted from base salary, together with four percent interest
compounded annually.
(2) "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 the armed
forces when the employee has been called to active full-time duty.
(3) "Agency" means the West Virginia State Police.
(4) "Base salary" means compensation paid to an employee
without regard to any overtime pay.
(5) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity or other benefit payable by the fund.
(6) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(7) "Dependent child" means any unmarried child or children
born to or adopted by a member or retirant of the fund who:
(A)Is under the age of eighteen;
(B) After reaching eighteen years of age, continues as a
full-time student in an accredited high school, college,
university, business or trade school until the child or children
reaches the age of twenty-three years; or
(C) Is financially dependent on the member or retirant by
virtue of a permanent mental or physical disability upon evidence
satisfactory to the board.
(8) "Dependent parent" means the member's or retirant's parent
or stepparent claimed as a dependent by the member or retirant for
federal income tax purposes at the time of the member's or
retirant's death.
(9) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer after the
twelfth day of March, one thousand nine hundred ninety-four, and
who is eligible to participate in the fund.
(10) "Final average salary" means the average of the highest
annual compensation received for employment with the agency,
including compensation paid for overtime service, received by the employee during any five calendar years within the employee's last
ten years of service.
(11) "Fund", "plan", "system" or "retirement system" means the
West Virginia State Police Retirement Fund created and established
by this article.
(12) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended.
(13) "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 purely administrative
in nature.
(14) "Member" means any person who has contributions standing
to his or her credit in the fund and who has not yet entered into
retirement status.
(15) "Month of service" means each month for which an employee
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.
(16) "Partially disabled" means an employee'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 employee from engaging in
other types of nonlaw-enforcement employment.
(17) "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.
(18) "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.
(19) "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 agency after having attained the age of
seventy and one-half years.
(20) "Retirant" or "retiree" means any member who commences an
annuity payable by the retirement system.
(21) "Salary" means the compensation of an employee, excluding any overtime payments.
(22) "Surviving spouse" means the person to whom the member or
retirant was legally married at the time of the member's or
retirant's death and who survived the member or retirant.
(23) "Totally disabled" means an employee'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, an employee 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 an employee of the agency, 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 employee lives; (B) a specific job vacancy exists; or (C)
the employee would be hired if he or she applied for work.
(24) "Years of service" means the months of service acquired
by a member while in active employment with the agency 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
agency through the date of termination of employment or retirement
from the agency. If a member returns to active employment with the agency following a previous termination of employment with the
agency 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 agency for which a
refund of contributions plus interest has been paid to the member
unless the employee repays the previous withdrawal, as provided in
section eight of this article, to reinstate the years of service.
§15-2A-3. Continuation and administration of West Virginia State
Police Retirement System; leased employees; federal
qualification requirements.
(a)
There is hereby created the The West Virginia State Police
Retirement System
is continued. Any West Virginia state trooper
employed by the
West Virginia State Police agency on or after the
effective date of this article shall be a member of this retirement
system and may not qualify for membership in any other retirement
system administered by the
Consolidated Public Retirement board so
long as he or she remains employed by the State Police.
(b) Any individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this
system, a "leased employee" means any individual who performs
services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar
organization. If a question arises regarding the status of an
individual as a leased employee, the board has final power to
decide the question.
(c) The
Consolidated Public Retirement board created pursuant
to article ten-d, chapter five of this code shall administer the
West Virginia State Police retirement system. The board may sue and
be sued, contract and be contracted with and conduct all the
business of the system in the name of the West Virginia State
Police Retirement System.
(d) This
retirement system fund is intended to meet the
federal qualification requirements of Section 401(a) and related
sections of the Internal Revenue Code as applicable to governmental
plans. Notwithstanding any other provision of state law, the board
shall administer the retirement system to fulfill this intent for
the exclusive benefit of the
employees, members
, retirants and
their beneficiaries. Any provision of this article referencing or
relating to these federal qualification requirements shall be
effective as of the date required by federal law. The board may
promulgate rules and amend or repeal conflicting rules in
accordance with the authority granted to the board pursuant to
section one, article ten-d, chapter five of this code to assure
compliance with this section.
§15-2A-4. Participation in system; continuation of fund.
There is hereby created the The West Virginia State Police
Retirement Fund
is continued for the benefit of the members
and
retirants of the
retirement system created pursuant to this article
and the dependents of any deceased or retired member of the system.
All moneys paid into and accumulated in the fund, except
such any
amounts
as shall be designated or set aside by the board for
payments of benefits as provided in this article, shall be invested
by the
state board of investments West Virginia Investment
Management Board as provided by law.
§15-2A-5. Employee contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member employee and paid into the fund created pursuant to section
four of this article twelve percent of the amount of his or her
salary.
(b) The State of West Virginia's contributions to the
retirement system, as determined by the
consolidated public
retirement board by legislative rule promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, shall be a percent of the
members' employees' total annual
compensation base salary related to benefits under this retirement
system. In determining the amount, the board shall give
consideration to setting the amount at a sum equal to an amount
which, if paid annually by the state, will be sufficient to provide for the total normal cost of the benefits expected to become
payable to all members
and retirants and to amortize any unfunded
liability found by application of the actuarial funding method
chosen for that purpose by the
consolidated public retirement board
over a period of years determined actuarially appropriate. When
proposing a rule for promulgation which relates to the amount of
employer contribution, the board may promulgate emergency rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code if the inability of the board to increase state
contributions will detrimentally affect the actuarial soundness of
the retirement system. A signed statement from the state actuary
shall accompany the statement of facts and circumstances
constituting an emergency which shall be filed in the State
Register. For purposes of this section, subdivision (2),
subsection (b), section fifteen-a, article three, chapter
twenty-nine-a of this code is not applicable to the Secretary of
State's determination of whether an emergency rule should be
approved. The state's contributions shall be paid monthly into the
fund created pursuant to section four of this article out of the
annual appropriation for the
department agency.
(c) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member
or retirant would otherwise receive under the
system.
§15-2A-6. Retirement; commencement of benefits.
(a) 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 filing with
the board his or her voluntary
petition application 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.
(b) 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 department at the
time of retirement. The
member's retirant'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.
(c) 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 a deferred or
immediate commencement of benefit.
§15-2A-6a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and Treasury regulations under that section to the extent
applicable to governmental plans so that no annuity or other
benefit provided under this system shall exceed those limitations.
The extent to which any annuity or other benefit payable under this
retirement system shall be reduced as compared with the extent to
which an annuity, contributions or other benefits under any other
defined benefit plans or defined contribution plans required to be
taken into consideration under Section 415 of the Internal Revenue
Code shall be
reduced shall be determined by the board in a manner
that shall maximize the aggregate benefits payable to the member.
If the reduction is under this retirement system, the board shall
advise affected members
or retirants of any additional limitation
on the annuities required by this section.
§15-2A-6c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nine hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this system, a distributee may elect, at the time and in the manner prescribed
by the board, to have any portion of an eligible rollover
distribution
that is equal to at least five hundred dollars paid
directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (i) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary or for a specified
period of ten years or more; (ii) any distribution to the extent
such the distribution is required under Section 401(a)(9) of the
Internal Revenue Code; (iii) the portion of any distribution that
is not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities;
and (iv) any hardship distribution described in Section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code.
and (v) any
other distribution or distributions expected to total less than two
hundred dollars during a year For distributions after the
thirty-first day of December, two thousand one, a portion of a distribution shall not fail to be an eligible rollover distribution
merely because the portion consists of after-tax employee
contributions which are not includable in gross income. However,
this portion may be paid only to an individual retirement account
or annuity described in Section 408(a) or (b) of the Internal
Revenue Code or to a qualified defined contribution plan described
in Section 401(a) or 403(a) of the Internal Revenue Code that
agrees to separately account for amounts transferred, including
separately accounting for the portion of the distribution which is
includable in gross income and the portion of the distribution
which is not includable.
(2) "Eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in Section 408(b) of the
Internal Revenue Code, an annuity plan described in Section 403(a)
of the Internal Revenue Code or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution
: Provided, That in
the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity. For distributions after
the thirty-first day of December, two thousand one, an eligible
retirement plan also means an annuity contract described in Section
403(b) of the Internal Revenue Code and an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by
a state, political subdivision of a state or any agency or
instrumentality of a state or political subdivision of a state and
which agrees to separately account for amounts transferred into the
plan from this system.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the system to the
eligible retirement plan.
(b) Nothing in this section may be construed as permitting
rollovers into this system or any other retirement system
administered by the board.
§15-2A-6d. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after the first day of
January, two thousand two. Notwithstanding any provision of this
article to the contrary that would otherwise prohibit or limit
rollovers and plan transfers to this system, the retirement system shall accept the following rollovers and plan transfers on behalf
of
a member an employee solely for the purpose of purchasing
permissive service credit, in whole and in part, as otherwise
provided in this article or for the repayment of withdrawn or
refunded contributions, in whole and in part, with respect to a
previous forfeiture of service credit as otherwise provided in this
article: (i) One or more rollovers within the meaning of Section
408(d)(3) of the Internal Revenue Code from an individual
retirement account described in Section 408(a) of the Internal
Revenue Code or from an individual retirement annuity described in
Section 408(b) of the Internal Revenue Code; (ii) one or more
rollovers described in Section 402 (c) of the Internal Revenue Code
from a retirement plan that is qualified under Section 401(a) of
the Internal Revenue Code or from a plan described in Section
403(b) of the Internal Revenue Code; (iii) one or more rollovers
described in Section 457(e)(16) of the Internal Revenue Code from
a governmental plan described in Section 457 of the Internal
Revenue Code; or (iv) direct trustee-to-trustee transfers or
rollovers from a plan that is qualified under Section 401(a) of the
Internal Revenue Code from a plan described in Section 403(b) of
the Internal Revenue Code or from a governmental plan described in
Section 457 of the Internal Revenue Code
: Provided, That any
rollovers or transfers pursuant to this section shall be accepted
by the system only if made in cash or other asset permitted by the board and only in accordance with the policies, practices and
procedures established by the board from time to time. For
purposes of this section, the following definitions apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of
service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(b) Nothing in this section shall be construed as permitting
rollovers or transfers into this system or any other system
administered by the
retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the
purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or refunded contributions except as otherwise permitted in this
article.
§15-2A-7. Annual annuity adjustment.
(a) Every
member retirant of the
department fund 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 retirant 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. The 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 the retirant or surviving spouse from the fund
in equal monthly installments while
the member is in status of
retirement the retirant or surviving spouse are receiving annuity
payments. The annuity adjustments shall supplement the retirement
awards and benefits provided in this article.
(b) Any
member retirant or
beneficiary surviving spouse 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 retirant has been retired for less than one year
or if the
surviving spouse has been in receipt of surviving spouse payments
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.
§15-2A-8. Refunds to certain members upon discharge of
resignation; deferred retirement.
(a) Any
member employee who is discharged by order of the
superintendent or otherwise terminates employment with the
department agency is, at the written request of the member to the
retirement board, entitled to receive from the
retirement fund a
sum equal to the aggregate of the principal amount of moneys
deducted from
the his or her base 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 reemployed by the department agency
shall not receive any prior service credit
in the fund on account
of
the former service.
unless following his or her reenlistment
the member redeposits The employee may redeposit in the fund
established by this article 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 employee who completes ten years of service
with the
department agency is eligible, upon separation of
employment,
with the 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 is eligible to
receive a retirement annuity. The annuity shall be payable during
the lifetime of the
member retirant and shall be in the amount of
his or her accrued retirement benefit as determined under section
six of this article. The
retiring member retirant may choose, in
lieu of a life annuity, an annuity in
a reduced amount payable
during the
member's retirant'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
retirant. Reduction of the monthly benefit amount shall be
calculated to be of equal actuarial value to the life annuity the
member retirant could otherwise have chosen. Any
member retirant
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.
A retiring member under the
provisions of this section may receive retirement annuity payments on the first day of the month following his or her attaining age
sixty-two and upon receipt of the application for retirement. The
board shall promptly provide the member with an explanation of his
or her optional forms of retirement benefits and, upon receipt of
properly executed forms from the agency and member, the board shall
process the member's request for and commence payments as soon as
administratively feasible.
§15-2A-9. Awards and benefits for disability -- Incurred in
performance of duty.
(a)
Except as otherwise provided in this section, a member
Any employee of the
department agency who has not yet entered
retirement status on the basis of age and service and who 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 employees of the
department and agency or
incurred pursuant to or while the
member employee was engaged in
the performance of his or her duties as
a member an employee of the
department agency shall, if, in the opinion of the
retirement
board, he or she is, by reason of
such that cause, unable to
perform adequately the duties required of him or her as
a member an
employee of the
department agency, 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 retirant
thereafter is entitled to receive annually
and there shall be paid to the member from the fund in equal monthly installments during
the his or her lifetime
of the member, or until the member attains
the age of fifty-five or until the disability
eligibility sooner
terminates, 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
department agency 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 first day of the month following the date in which
the retirant attains age fifty-five, the
member retirant shall
receive the benefit provided in section six of this article as it
would apply to his or her final average salary based on earnings
from the
department agency through the day immediately preceding
his or her disability. The recalculation of benefit upon a
member
retirant attaining age fifty-five shall be considered 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
retirant 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 retirant 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 as 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) Any member who has not yet entered retirement status on
the basis of age and service and who 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 employees of the
department agency and or incurred pursuant to or while the
member
employee was or is engaged in the performance of his or her duties
as
a member an employee of the
department agency to the extent that
the
member employee is incapacitated ever to engage in any gainful
employment, the
member employee is entitled to receive annually,
and there shall be paid
to the member from the fund in equal
monthly installments during
the his or her lifetime
of the member
or until the disability sooner terminates, an amount equal to
the
amount of the base salary received by the
member employee in the
preceding
full twelve-month employment period.
Until a member has
worked twelve months, the amount of monthly base salary shall be
annualized for the purpose of determining the benefit.
(c) The superintendent of the
department agency may expend moneys from funds appropriated for the
department agency 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 retirant of the
department who 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
employees of the
department agency and or incurred pursuant to or
while the
member employee was or shall be engaged in the
performance of duties as
a member an employee of the
department
agency. Whenever the superintendent determines that any disabled
member retirant is ineligible to receive any of the
aforesaid
benefits
in this section at public expense, the superintendent
shall, at the request of the disabled
member retirant, refer 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 approved by the West Virginia Insurance Commission. Upon
termination of employment and receipt of properly executed forms
from the agency and the member, the board shall process the
member's disability retirement benefit and commence annuity
payments as soon as administratively feasible.§15-2A-10. Same -- Due to other causes.
(a) If any
member employee while in active service of the
State Police agency becomes partially or totally disabled on a
probable permanent basis to the extent that the
member employee
cannot adequately perform the duties required of
a member an
employee of the
department agency 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
employee shall be retired by the board. There shall be paid
annually to the
member retirant from the fund in equal monthly
installments, commencing on the date the
member retirant is retired
and continuing during the lifetime of the
member retirant or until
the
member retirant attains the age of fifty-five; while in status
of retirement an amount equal to one half the base salary received
by the
member retirant in the preceding
full twelve-month period
:
Provided, That if the
member retirant had not been employed with
the
department agency for twelve
full months prior to the
disability, the amount of monthly
base salary shall be annualized
for the purpose of determining the benefit.
(b)
Upon attaining age fifty-five The first day of the month
following the date in which the retirant attains age fifty-five,
the
member retirant shall receive the benefit provided in section
six of this article as it would apply to his or her final average
salary based on earnings from the
department agency through the day immediately preceding his or her disability. The recalculation of
benefit upon a
member retirant attaining age fifty-five shall be
considered 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 disabled retirant retired
with compensation on account of disability to submit to a physical
or mental examination or both a physical and mental examination by
a physician or physicians selected or approved by the board and
cause all costs incident to 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
department
agency, and
the physician or physicians shall submit a report of
the findings of 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 on the report, the board is of
the
opinion and finds that the disabled
member retirant has recovered
from the disability to the extent that he or she is able to perform
adequately the duties of a law-enforcement officer, the board shall
order that all payments from the fund
to that disabled retirant be
terminated. If from the report, or the report and hearing on the
report, the board is of the opinion and
find finds that the
disabled
member retirant has recovered from 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 of a law-enforcement officer, the
board shall order, in the case of a
member retired disabled
retirant receiving benefits under the provisions of section nine of
this article, that the disabled
member retirant be paid annually
from the fund an amount equal to six tenths of the base salary paid
to the
member retirant in the last
full twelve-month employment
period. The board shall order, in the case of a
member disabled
retirant receiving benefits retired under the provisions of section
ten of this article, that the disabled
member retirant be paid from
the fund an amount equal to one fourth of the base salary paid to
the
member retirant in the last
full twelve-month employment
period
: Provided, That if the
member retirant had not been
employed with the
department agency for twelve
full 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 an employee or, if the
member employee is under an
incapacity, by a person acting with legal authority on the
member's
employee's behalf. After receiving an application for a disability
benefit, the board shall notify the superintendent of the
department agency that an application has been filed
: Provided,
That when, in the judgment of the superintendent,
a member an
employee is no longer physically or mentally fit for continued duty
as
a member an employee of the
West Virginia State Police agency
and the
member employee has failed or refused to make application
for disability benefits under this article, the superintendent may
petition the board to retire the
member employee 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 employee's job
description, information relating to the superintendent's position
on the work relatedness of the
member's employee's alleged
disability, complete copies of the
member's employee'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) The board shall notify
a member an employee 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 employee 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 aggrieved shall
notify the board within twenty days of the
member's employee'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
disabled retirant 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 disabled retirant 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 disabled retirant. If a
disability recipient disabled retirant 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 West Virginia State Police
Retirement Fund. 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 agency 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 employees or
retirants - When employee 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 employee 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 employees while the
member employee was engaged in the performance of his or her duties
as
a member an employee of the
department agency, or the survivor
of a
member retirant who dies from any cause after having been
retired pursuant to the provisions of section nine of this article,
is 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 payable the first
day of the month following the employee's or retirant's death and
which shall be the greater of:
(1) An amount equal to nine tenths of the base salary received
in the preceding
full twelve-month employment period by the
deceased
member employee: Provided, That if the
member employee
had not been employed with the
department agency for twelve
full
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 ten thousand dollars.
In addition,
thereto the surviving spouse is entitled to
receive and
there shall be paid
to the person one hundred fifty
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 third 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:
Provided, however, That if there is no
surviving spouse, dependent child, or dependent parent of the
deceased member, the accumulated contributions shall be paid to a
named beneficiary or beneficiaries: Provided further, That if
there is no surviving spouse, dependent child, dependent parent of
the deceased member or any named beneficiary or beneficiaries, then
the accumulated contributions shall be paid to the estate of the
deceased member.
Any person qualifying as a surviving dependent child under
this section, in addition to any other benefits due under this or
other sections of this article, is 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 as long as the
recipient makes application to the board on an approved form and
under rules provided by the board 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 are 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 is in
lieu of any right to receive any benefits under this retirement
system, so that only a single receipt of state retirement benefits
occurs.
A surviving spouse or dependent of an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day of the month following the date the
deceased member is removed from payroll by the agency. A surviving
spouse or dependent of a member who is not currently an employee meeting the requirements of this section is entitled to receive
beneficiary payments on the first day of the month following the
date of the deceased member's death. A surviving spouse or
dependent of a retirant meeting the requirements of this section is
entitled to receive beneficiary payments on the first day of the
month following the date of the deceased retirant's death. Upon
receipt of properly executed forms from the agency and surviving
spouse or dependent, the board shall process the surviving spouse
or dependent benefit as soon as administratively feasible.
It is the intent of the Legislature that the levels of
benefits provided by operation of this section from the effective
date of the enactment of this section during the regular session of
the Legislature, two thousand five, be the same levels of benefits
as provided by this section as amended and reenacted during the
fourth extraordinary session of the Legislature, two thousand five.
Accordingly, the effective date of the operation of this section as
amended and reenacted during the fourth extraordinary session of
the Legislature, two thousand five, is expressly made retrospective
to the ninth day of April, two thousand five.
§15-2A-13. Same -- When member dies from nonservice-connected
causes before serving twenty years.
(a) In any case where
a member an employee while in active
service of the
department agency, before having completed twenty
years of service as
a member an employee of the
department agency, dies 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
full twelve-month employment period by
the deceased member
: Provided, That if the member had not been
employed with the
department agency for twelve
full 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 is entitled to receive during his or her lifetime
one half the amount which both parents, if living, would have been
entitled to receive:
Provided further, That if there is no
surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a
named beneficiary or beneficiaries: And provided further, That if
there is no surviving spouse, dependent child, dependent parent of
the deceased member or any named beneficiary or beneficiaries, then
the accumulated contributions shall be paid to the estate of the
deceased member.
(b) A surviving spouse or dependent of an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day of the month following the date the
deceased member is removed from payroll by the agency. A surviving
spouse or dependent of a member who is not currently an employee
meeting the requirements of this section is entitled to receive
beneficiary payments on the first day of the month following the
date of the deceased member's death. A surviving spouse or
dependent of a retirant meeting the requirements of this section is
entitled to receive beneficiary payments on the first day of the
month following the date of the deceased retirant's death. Upon
receipt of properly executed forms from the agency and surviving
spouse or dependent, the board shall process the surviving spouse
or dependent benefit as soon as administratively feasible.
§15-2A-14. Awards and benefits to dependents of member -- When
member dies after retirement or after serving
twenty years.
(a) When any
member employee of the
department agency has completed twenty years of service or longer as
a member an employee
of the
department agency and dies from any cause or causes other
than those specified in this article before having been retired by
the board and when a
member retirant in retirement status has died
or dies 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
or
retirant, 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 retirant 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 is entitled to receive during his or her
lifetime one-half the amount which both parents, if living, would
have been entitled to receive:
Provided, however, That if there is
no surviving spouse, dependent child or dependent parent of the
deceased member, the accumulated contributions shall be paid to a
named beneficiary or beneficiaries: Provided further, That if
there is no surviving spouse, dependent child, dependent parent of
the deceased member or any named beneficiary or beneficiaries, then
the accumulated contributions shall be paid to the estate of the
deceased member.
(b) The
member retirant 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 retirant to select. For the purposes of this subsection,
"initial benefit" means the benefit received by the
member retirant
upon retirement.
§15-2A-15. Exemption from taxation, garnishment and other process;
exception for certain qualified domestic relations
orders.
The moneys in the fund and the right of a member
or retirant
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 are not
be subject to execution,
garnishment, attachment or any other process whatsoever except that
the benefits or contributions under this system
shall be are
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 are unassignable except as is
provided in this article.
§15-2A-17. Awards and benefits to dependents of member --
Termination.
When any surviving spouse of a member
or retirant shall die or
remarry dies or remarries while receiving or being entitled to
receive any benefits under any section except section twelve of
this article, the surviving spouse may not from the date of his or
her remarriage, nor may the estate from the date of death of the
deceased member's
or retirant's surviving spouse, be entitled to
receive any benefits
hereunder under this article whatsoever:
Provided, That in any case where under the terms of this article
benefits are provided for a child or children surviving the death or remarriage of the surviving spouse, payment of benefits to that
child or children shall be calculated for payment from the date the
surviving spouse dies or remarries.
§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
department agency for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who, while
a member an employee of
the
department agency, 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
department agency, 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
department agency; 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
department agency.
(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
shall 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.
_______
(NOTE: Section two has been completely rewritten; therefore,
strike-through and underscoring have been omitted.)