H. B. 3145
(By Delegates Hall, Frazier, Phillips, Eldridge,
Butcher, Ross, Moore and Stowers)
[Introduced
March 13, 2009
; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact §5-10-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §5-16-2 of this
code, all relating to giving municipalities with less than
twenty-five employees the right to buy into becoming employees
pursuant to the West Virginia Public Employee Retirement Act
and the West Virginia Public Employees Insurance Act.
Be it enacted by the Legislature of West Virginia:
That §5-10-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §5-16-2 of said code be amended
and reenacted
, all to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the
context, the following words and phrases as used in this article,
have the following meanings:
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, rounding to the upper cent for
any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "Board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the House in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen, article ten, chapter five of
this code and:
Provided, however, That members of the legislative
body of any political subdivision and judges of the state Court of
Claims are employees receiving one year of service credit for each
one year term served and pro rated service credit for any partial
term served, anything contained in this article to the contrary
notwithstanding:
Provided further, That upon a municipality with
less than twenty-five employees having elected to pay the entire
cost of the premium, its employees shall be included in the
definition of "employee" pursuant to this article. In any case of
doubt as to who is an employee within the meaning of this article,
the board of trustees shall decide the question;
(12) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member, (including a member of the Legislature who participates
in the retirement system in the year 1971, or thereafter), during
any period of three consecutive years of credited service contained
within the member's ten years of credited service immediately
preceding the date his or her employment with a participating
public employer last terminated; or
(B) If the member has less than five years of credited
service, the average of the annual rate of compensation received by
the member during his or her total years of credited service; and
in determining the annual compensation, under either paragraph (A)
or (B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year 1971, or in any year thereafter, his or her
actual legislative compensation, (the total of all compensation
paid under sections two, three, four and five, article two-a,
chapter four of this code), in the year 1971, or in any year
thereafter, plus any other compensation he or she receives in any
year from any other participating public employer including the State of West Virginia, without any multiple in excess of one times
his or her actual legislative compensation and other compensation,
shall be used:
Provided, That "final average salary" for any
former member of the Legislature or for any member of the
Legislature in the year 1971, who, in either event, was a member of
the Legislature on November 30, 1968, or November 30, 1969, or
November 30, 1970, or on November 30, in any one or more of those
three years and who participated in the retirement system as a
member of the Legislature in any one or more of those years means:
(i) Either (notwithstanding the provisions of this subdivision
preceding this proviso) $1,500 multiplied by eight, plus the
highest other compensation the former member or member received in
any one of the three years from any other participating public
employer including the State of West Virginia; or (ii) "final
average salary" determined in accordance with paragraph (A) or (B)
of this subdivision, whichever computation produces the higher
final average salary (and in determining the annual compensation
under (ii) of this proviso, the legislative compensation of the
former member shall be computed on the basis of $1,500 multiplied
by eight, and the legislative compensation of the member shall be
computed on the basis set forth in the provisions of this
subdivision immediately preceding this proviso or on the basis of
$1,500 multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the
employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated
contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the Public Employees Retirement System before July 1, 1997, is
considered a political subdivision solely for the purpose of
permitting those employees who are members of the Public Employees
Retirement System to remain members and continue to participate in
the retirement system at their option after July 1, 1997:
Provided, however, That the Regional Community Policing Institute
which participated in the Public Employees Retirement System before
July 1, 2000, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after July 1,
2000;
(20) "Prior service" means service rendered prior to July 1, 1961, to the extent credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(22) "Required beginning date" means April 1 of the calendar
year following the later of: (A) The calendar year in which the
member attains age seventy and one-half years of age; or (B) the
calendar year in which a member who has attained the age seventy
and one-half years of age and who ceases providing service covered
under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity
payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between July 1,
1961, and the date an employer decides to become a participating
member of the Public Employees Retirement System; (2) service prior
to July 1, 1961, for which the employee is not entitled to prior
service at no cost in accordance with 162 CSR 5.13; and (3) service
of any member of a legislative body or employees of the State Legislature whose term of employment is otherwise classified as
temporary for which the employee is eligible, but for which the
employee did not elect to participate at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Agency" means the Public Employees Insurance Agency
created by this article.
(2) "Director" means the Director of the Public Employees
Insurance Agency created by this article.
(3) "Employee" means any person, including an elected officer,
who works regularly full time in the service of the State of West
Virginia and, for the purpose of this article only, the term
"employee" also means any person, including an elected officer, who
works regularly full time in the service of a county board of
education; a county, city or town in the state; any separate
corporation or instrumentality established by one or more counties,
cities or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities or
towns; any public corporation charged by law with the performance
of a governmental function and whose jurisdiction is coextensive
with one or more counties, cities or towns; any comprehensive
community mental health center or comprehensive mental retardation
facility established, operated or licensed by the Secretary of
Health and Human Resources pursuant to section one, article two-a,
chapter twenty-seven of this code and which is supported in part by
state, county or municipal funds; any person who works regularly
full time in the service of the Higher Education Policy Commission,
the West Virginia Council for Community and Technical College
Education or a governing board, as defined in section two, article
one, chapter eighteen-b of this code; any person who works
regularly full time in the service of a combined city-county health
department created pursuant to article two, chapter sixteen of this
code; any person designated as a 21st Century Learner Fellow
pursuant to section eleven, article three, chapter eighteen-a of
this code; and any person who works as a long-term substitute as
defined in section one, article one, chapter eighteen-a of this
code in the service of a county board of education:
Provided, That
a long-term substitute who is continuously employed for at least
one hundred thirty-three instructional days during an instructional
term, and until the end of that instructional term, is eligible for
the benefits provided in this article until September 1 following that instructional term:
Provided, however, That a long-term
substitute employed fewer than one hundred thirty-three
instructional days during an instructional term is eligible for the
benefits provided in this article only during such time as he or
she is actually employed as a long-term substitute. On and after
January 1, 1994, and upon election by a county board of education
to allow elected board members to participate in the Public
Employees Insurance Program pursuant to this article, any person
elected to a county board of education shall be considered to be an
"employee" during the term of office of the elected member. Upon
election by the State Board of Education to allow appointed board
members to participate in the Public Employees Insurance Program
pursuant to this article, any person appointed to the State Board
of Education is considered an "employee" during the term of office
of the appointed member:
Provided further, That the elected member
of a county board of education and the appointed member of the
State Board of Education shall pay the entire cost of the premium
if he or she elects to be covered under this article.
In addition,
that upon a municipality with less than twenty-five employees
having elected to pay the entire cost of the premium, its employees
shall be included in the definition of "employee" pursuant to this
article. Any matters of doubt as to who is an employee within the
meaning of this article shall be decided by the director.
On or after July 1, 1997, a person shall be considered an "employee" if that person meets the following criteria:
(i) Participates in a job-sharing arrangement as defined in
section one, article one, chapter eighteen-a of this code;
(ii) Has been designated, in writing, by all other
participants in that job-sharing arrangement as the "employee" for
purposes of this section; and
(iii) Works at least one third of the time required for a
full-time employee.
(4) "Employer" means the State of West Virginia, its boards,
agencies, commissions, departments, institutions or spending units;
a county board of education; a county, city or town in the state;
any separate corporation or instrumentality established by one or
more counties, cities or towns, as permitted by law; any
corporation or instrumentality supported in most part by counties,
cities or towns; any public corporation charged by law with the
performance of a governmental function and whose jurisdiction is
coextensive with one or more counties, cities or towns; any
comprehensive community mental health center or comprehensive
mental retardation facility established, operated or licensed by
the Secretary of Health and Human Resources pursuant to section
one, article two-a, chapter twenty-seven of this code and which is
supported in part by state, county or municipal funds; a combined
city-county health department created pursuant to article two,
chapter sixteen of this code; and a corporation meeting the description set forth in section three, article twelve, chapter
eighteen-b of this code that is employing a 21st Century Learner
Fellow pursuant to section eleven, article three, chapter eighteen
of this code but the corporation is not considered an employer with
respect to any employee other than a 21st Century Learner Fellow.
Any matters of doubt as to who is an "employer" within the meaning
of this article shall be decided by the director. The term
"employer" does not include within its meaning the National Guard.
(5) "Finance board" means the Public Employees Insurance
Agency finance board created by this article.
(6) "Person" means any individual, company, association,
organization, corporation or other legal entity, including, but not
limited to, hospital, medical or dental service corporations;
health maintenance organizations or similar organization providing
prepaid health benefits; or individuals entitled to benefits under
the provisions of this article.
(7) "Plan", unless the context indicates otherwise, means the
medical indemnity plan, the managed care plan option or the group
life insurance plan offered by the agency.
(8) "Retired employee" means an employee of the state who
retired after April 29, 1971, and an employee of the Higher
Education Policy Commission, the Council for Community and
Technical College Education, a state institution of higher
education or a county board of education who retires on or after April 21, 1972, and all additional eligible employees who retire on
or after the effective date of this article, meet the minimum
eligibility requirements for their respective state retirement
system and whose last employer immediately prior to retirement
under the state retirement system is a participating employer in
the state retirement system and in the Public Employees Insurance
Agency:
Provided, That for the purposes of this article, the
employees who are not covered by a state retirement system, but who
are covered by a state-approved or state-contracted retirement
program or a system approved by the director, shall, in the case of
education employees, meet the minimum eligibility requirements of
the State Teachers Retirement System and in all other cases, meet
the minimum eligibility requirements of the Public Employees
Retirement System and may participate in the Public Employees
Insurance Agency as retired employees upon terms as the director
sets by rule as authorized in this article. Employers with
employees who are, or who are eligible to become, retired employees
under this article shall be mandatory participants in the Retiree
Health Benefit Trust Fund created pursuant to article sixteen-d of
this chapter. Nonstate employers may opt out of the West Virginia
other post-employment benefits plan of the Retiree Health Benefit
Trust Fund and elect to not provide benefits under the Public
Employees Insurance Agency to retirees of the nonstate employer,
but may do so only upon the written certification, under oath, of an authorized officer of the employer that the employer has no
employees who are, or who are eligible to become, retired employees
and that the employer will defend and hold harmless the Public
Employees Insurance Agency from any claim by one of the employer's
past, present or future employees for eligibility to participate in
the Public Employees Insurance Agency as a retired employee. As a
matter of law, the Public Employees Insurance Agency shall not be
liable in any respect to provide plan benefits to a retired
employee of a nonstate employer which has opted out of the West
Virginia other post-employment benefits plan of the Retiree Health
Benefit Trust Fund pursuant to this section.
NOTE: This bill shall give municipalities with less than
twenty-five employees the right to buy into becoming employees
pursuant to the West Virginia Public Employee Retirement Act and
the West Virginia Public Employees Insurance Act.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.