WEST virginia legislature
2019 regular session
Senate Bill 399
By Senators Trump, Stollings, and Beach
January 23, 2019; Referred
to the Committee on the Judiciary; and then to the Committee on Finance]
A BILL to amend and reenact §5-10-48 of the Code of West Virginia, 1931, as amended; and to amend and reenact §50-1-6a of said code, all relating generally to compensation for judicial officers; providing that senior judges, justices, and magistrates may receive per diem compensation for temporary assignments while receiving retirement benefits, subject to certain limitations; limiting the per diem rate of compensation that may be paid to senior magistrates for each day served; providing that the combined total of per diem compensation and retirement benefits paid to a senior magistrate during a single calendar year may not exceed the annual salary of a sitting magistrate; providing an exception to the limitation on the combined total of per diem compensation and retirement benefits paid to a senior magistrate in a calendar year, if the Chief Justice of the Supreme Court of Appeals enters an administrative order certifying that certain circumstances necessitate extended assignment of such senior magistrate; requiring that administrative orders regarding extended assignment of a senior magistrate be submitted to the State Auditor and the State Treasurer; and providing that senior magistrates may be reimbursed for actual and necessary expenses incurred in the performance of their duties.
Be it enacted by the Legislature of West Virginia:
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 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 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 12 months per year service and at least 1040 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 10 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 175 days per calendar year.
In the event If 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 the additional employment, the annuity to be
computed according to §5-10-22 of this code. If his or her reemployment is for
a period less than one year, he or she may request in writing that the employee
and employer retirement contributions submitted during reemployment be credited
to the participating public employer pursuant to §5-10-44 of this code, and his
or her previous annuity shall be reinstated effective the first day of the
month following termination of reemployment and the board’s receipt of written
notice thereof. A retirant may accept legislative per diem, 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 $20,000.
(d) Senior judges, justices, and magistrates. —
(1) Notwithstanding the provisions of subsection (c) of this section, a retired judge or justice who is recalled and assigned to temporary service as a senior judge or justice by the Supreme Court of Appeals may receive per diem compensation pursuant to the requirements of §51-9-10 of this code while continuing to receive his or her annuity.
(2) Notwithstanding the provisions of subsection (c) of this section, a retired magistrate who is recalled and assigned to temporary service as a senior magistrate by the West Virginia Supreme Court of Appeals may receive per diem compensation pursuant to the requirements of §50-1-6a of this code while continuing to receive his or her annuity.
(d) (e) In the event If 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 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 an 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 elected or reappointed to the same position unless and until a continuous 12-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 60 days after the employee has retired: Provided, however, That the limitation on compensation provided by subsection (c) 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 175 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
may 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
may not continue to accrue any additional service credit or benefits in
the system related to the continued service. (f) (g) Notwithstanding the provisions of §5-10-27b
of this code, 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
70 and one-half years: Provided, That the member is eligible to retire
under the provisions of §5-10-20 or §5-10-21 of this code: Provided,
however, That the member elects to stop actively contributing to the system
while receiving the in-service distributions. (g) (h) The provisions of §5-10-22h of this
code are not applicable to the amendments made to this section during the 2006
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-6a. Temporary appointment of retired magistrates.
(a) The Legislature recognizes and acknowledges the
authority of the West Virginia Supreme Court of Appeals
and empowered to create a panel of senior magistrates to consist of, and to
utilize the talent and experience of, retired magistrates of this state. The
Supreme Court of Appeals shall promulgate rules providing for such senior
magistrates to be assigned duties as needed and as feasible toward the
objective of reducing caseloads and providing for replacement of magistrates
who are unavailable. Provided, That reasonable payment shall be made to
said senior magistrates on a per diem basis: Provided, however, That the
per diem and retirement compensation of a senior magistrate shall not exceed
the salary of a sitting magistrate and allowances shall also be made for
necessary expenses pursuant to the travel regulations of the Supreme Court of Appeals.
(b) Senior magistrates recalled and assigned to service shall receive per diem compensation set by the Supreme Court of Appeals, but not to exceed $200 for each day actually served: Provided, That the combined total of per diem compensation and retirement benefits paid to a senior magistrate during a single calendar year may not exceed the annual salary of a sitting magistrate, except as set forth in subsection (c) of this section.
(c) Notwithstanding subsection (b) of this section, for purposes of maintaining magisterial efficacy and continuity of magisterial decisionmaking, a senior magistrate may continue to receive per diem compensation after the combined total of per diem compensation and retirement benefits paid to the senior magistrate during that calendar year exceeds the annual salary of a sitting magistrate if the Chief Justice of the Supreme Court of Appeals enters an administrative order certifying that circumstances, such as the protracted illness or the lengthy suspension or absence of a sitting magistrate, necessitate the extended assignment of the senior magistrate. Immediately upon entering such an order, the chief justice shall submit copies of the order to the State Auditor and the State Treasurer.
(d) In addition to the compensation authorized by this section, senior magistrates recalled to service may be reimbursed for their actual and necessary expenses incurred in the performance of their duties.
NOTE: The purpose of this bill is to fix the rate of compensation for senior magistrates and to limit the annual total of per diem compensation and retirement benefits paid to senior magistrates, absent certain conditions.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.