H. B. 2637
(By Delegate Stalnaker)
[Introduced February 24, 2005
; referred to the
Committee on Pensions and Retirement then Finance
.]
A BILL to amend and reenact §5-10A-2
and §5-10A-3
of the Code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §5-10A-11, all
relating to amending the definitions of less than honorable
service and retirement plan
;
increasing the time to issue
notice to terminate benefits; and requiring prosecuting
attorneys to notify retirement board of any convictions or
pleas to less than honorable service.
Be it enacted by the Legislature of West Virginia:
That §5-10A-2
and §5-10A-3
of the Code of West Virginia, 1931,
as amended
,
be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §5-10A-11,
all to read
as follows:
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 committed while
holding such the office or during such 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; 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 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 the 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, 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 including with the report the indictment, plea
agreement and any order finding the defendant guilty.
NOTE: The purpose of this bill is to amend
the definition of
less than honorable service,
to amend a definition to clarify
disqualification of benefits of members by adding the Teachers'
Defined Contribution Retirement System and West Virginia State
Police Retirement System to the definition of "retirement plan", to
increase time to issue notice to terminate benefits, and to add a
new section requiring prosecuting attorneys to notify retirement
board of convictions or plea to less than honorable service.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5-10A-11
is new; therefore, underscoring and strike-throughs
have been omitted.
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