H. B. 2763
(By Delegates Ashley, Boggs, Anderson and Border)
[Introduced February 23, 2009; 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 $15,000:
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 $20,000.
(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 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 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 2006 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.