H. B. 3273
(By Delegate Spencer)
[Introduced January 13, 2010; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5-10E-1, §5-10E-2,
§5-10E-2a, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7,
§5-10E-8, §5-10E-8a, §5-10E-9, §5-10E-9a, §5-10E-9b, §5-10E-
9c, §5-10E-9d, §5-10E-10, §5-10E-11, §5-10E-12, §5-10E-13, §5-
10E-14, §5-10E-15, §5-10E-16, §5-10E-17, §5-10E-18, §5-10E-19,
§5-10E-20, §5-10E-21, §5-10E-22, §5-10E-23, §5-10E-24, §5-10E-
25, §5-10E-26, §5-10E-27, §5-10E-28, §5-10E-29, §5-10E-30 and
§5-10E-31, all relating to creating a new retirement system
for West Virginia Correctional Officers.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5-10E-1, §5-10E-2,
§5-10E-2a, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-
10E-8, §5-10E-8a, §5-10E-9, §5-10E-9a, §5-10E-9b, §5-10E-9c, §5-10E-9d, §5-10E-10, §5-10E-11, §5-10E-12, §5-10E-13, §5-10E-14, §5-
10E-15, §5-10E-16, §5-10E-17, §5-10E-18, §5-10E-19, §5-10E-20, §5-
10E-21, §5-10E-22, §5-10E-23, §5-10E-24, §5-10E-25, §5-10E-26, §5-
10E-27, §5-10E-28, §5-10E-29, §5-10E-30, and §5-10E-31, all to read
as follows:
§5-10E-1. Short title.
This article is known and may be cited as the "West Virginia
Correctional Officer Retirement System Act"
§5-10E-2. Definitions.
As used in this article, unless a federal law or regulation or
the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
one-quarter percent of the member's final average salary multiplied
by the member's years of credited service. A member's accrued
benefit may not exceed the limits of Section 415 of the Internal
Revenue Code and is subject to section nine-a of this article.
(b) "Accumulated contributions" means the sum of all amounts
deducted from the compensation of a member, or paid on his or her
behalf pursuant to article ten-c, chapter five of this code, either
pursuant to section seven of this article or section twenty-nine,
article ten, chapter five of this code as a result of covered
employment together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with
any branch of the Armed Forces of the United States, including service with the National Guard or reserve military forces when the
member has been called to active full-time duty and has received no
compensation during the period of that duty from any board or
employer other than the Armed Forces.
(d) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the retirement board in accordance with this
article.
(e) "Annual compensation" means the wages paid to the member
during covered employment within the meaning of Section 3401(a) of
the Internal Revenue Code, but determined without regard to any
rules that limit the remuneration included in wages based upon the
nature or location of employment or services performed during the
plan year plus amounts excluded under Section 414(h)(2) of the
Internal Revenue Code and less reimbursements or other expense
allowances, cash or noncash fringe benefits or both, deferred
compensation and welfare benefits. Annual compensation for
determining benefits during any determination period may not exceed
$150,000 as adjusted for cost of living in accordance with Section
401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first
calendar month following receipt of the retirement application by
the board, if the member has ceased covered employment and reached early or normal retirement age.
(h) "Base salary" means a member's cash compensation exclusive
of overtime from covered employment during the last twelve months
of employment. Until a member has worked twelve months, annualized
base salary is used as base salary.
(i) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(j) "Correctional Officer" means any person employed by the
State of West Virginia under either the Division of Corrections,
Division of Juvenile Services or the Regional Jail and Correctional
Facility Authority whose responsibilities are but not limited to:
(1) To enforce rules and laws for the control and management
of correctional units and maintenance of public safety;
(2) To detain persons for violations of state law committed on
the property of any state correctional institution;
(3) To conduct investigations, pursue and apprehend escapees
from the custody of the commissioner or any state correctional
institution;
(4) To execute criminal process on persons in the custody of
the commissioner or Regional Jail Authority, or who surrender
themselves at any states correctional facility
(k) "Covered employment" means either:
(1) Employment as a Correctional Officer and the active
performance of the duties required of a Correctional Officer; or(2) The period of time which active duties are not performed
but disability benefits are received under section fourteen or
fifteen of this article; or
(3) Concurrent employment by a Correctional Officer in a job
or jobs in addition to his or her employment as a Correctional
Officer where the secondary employment requires the Correctional
Officer to be a member of another retirement system which is
administered by the Consolidated Public Retirement Board pursuant
to article ten-d, chapter five of this code if the Correctional
Officer contributes to the fund created in section six of this
article the amount specified as the Correctional Officer's
contribution in section seven of this article.
(l) "Credited service" means the sum of a member's years of
service, active military duty, disability service and annual leave
service.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during any
period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited
college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death; and
(C) Whose relationship with the member is described in
paragraph (A), (B) or (C), subdivision (1) of this section.
(n) "Dependent parent" means the father or mother of the
member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member,
expressed in whole years, fractions thereof or both, equal to one
half of the whole years, fractions thereof or both, during which
time a member receives disability benefits under section fourteen
or fifteen of this article.
(p) "Early retirement age" means age forty or over and
completion of twenty years of service.
(q) "Effective date" means July 1, 2009.
(r) "Employing Agency" for this code means the Division of
Corrections, the Division of Juvenile Services, or the Regional
Jail and Correctional Facility Authority.
(s) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last ten years of service. If the member did not have annual compensation
for the five full plan years preceding the member's attainment of
normal retirement age and during that period the member received
disability benefits under section fourteen or fifteen of this
article, then "final average salary" means the average of the
monthly salary determined paid to the member during that period as
determined under section seventeen of this article multiplied by
twelve.
(t) "Fund" means the West Virginia Correctional Officer
Retirement Fund created pursuant to section six of this article.
(u) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are
performed. These hours shall be credited to the member for the plan
year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of
absence or any combination thereof and without regard to whether
the employment relationship has terminated. Hours under this
paragraph shall be calculated and credited pursuant to West
Virginia Division of Labor rules. A member will not be credited
with any hours of service for any period of time he or she is receiving benefits under section fourteen or fifteen of this
article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing agency, irrespective of mitigation of
damages. The same hours of service shall not be credited both
under this paragraph and paragraph (1) or (2) of this subdivision,
hours under this paragraph shall be credited to the member for the
plan year or years to which the award or agreement pertains rather
than the plan year in which the award, agreement or payment is
made.
(v) "Member" means a person first hired as a Correctional
Officer after the effective data of this article, as defined in
subsection (r) of this section, or a Correctional Officer first
hired prior to the effective date and who elects to become a member
pursuant to section five or section seventeen of this article. A
member shall remain a member until the benefits to which be or she
is entitled under this article are paid or forfeited.
(w) "Monthly salary" means the portion of a member's annual
compensation which is paid to him or her per month.
(x) "Normal form" means a monthly annuity which is one twelfth
of the amount of the member's accrued benefit which is payable for
the member's life. If the member dies before the sum of the
payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date, and the
total of the retirement income payments made to the member.
(y) "Normal retirement age" means the first to occur of the
following:
(1) Attainment of age fifty years and the completion of twenty
or more years of service;
(2) While still in covered employment, attainment of at least
age fifty years and when the sum of current age plus years of
service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least
age sixty years and completion of five years of service; or
(4) Attainment of age sixty-two years and completion of five
or more years of service,
(z) "Partially disabled" means a member's inability to engage
in the duties of Correctional Officer by reason of any medically
determinable 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. A member may
be determined partially disabled for the purposes of this article
and maintain the ability to, engage in other gainful employment
which exists within the state but which ability would not enable
him or her to earn an amount at least equal to two-thirds of the
average annual compensation earned by all active members of this plan during the plan year ending as of the most recent June 30, as
of which plan data has been assembled and used for the actuarial
valuation of the plan.
(aa) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by article
ten, chapter five of this code.
(bb) "Plan" means the West Virginia Correctional Officer
Death, Disability and Retirement Plan established by this article.
(cc) "Plan year" means the twelve-month period commencing on
July 1 of any designated year and ending the following June 30.
(dd) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with this article.
(ee) "Retirement income payments" means the annual retirement
income payments payable under the plan.
(ff) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(gg) "Surviving spouse" means the person to whom the member
was legally married at the time of the member's death and who
survived the member.
(hh) "Totally disabled" means a member's 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:
(1) A member is totally disabled only if his or her physical
or mental impairment or impairments are so severe that he or she is
not only unable to perform his or her previous work as a
Correctional Officer 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 member
lives;
(B) A specific job vacancy exists; or
(C) The member would be hired if be or she applied for work.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques. A member's receipt of social
security disability benefits creates a rebuttable presumption that
the member is totally disabled for purposes of this plan.
Substantial gainful employment rebuts the presumption of total
disability.
(ii) "Year of service". -- A member shall, except in his or
her first and last years of covered employment, be credited with
year of service credit based upon the hours of service performed as covered employment and credited to the member during the plan year
based upon the following schedule:
Hours of Service
Years of Service Credited
Less than 500 ..... 0
500 to 999 ..... 1/3
1,000 to 1,499 ..... 2/3
1,500 or more .....1
During a member's first and last years of covered employment, the
member shall be credited with one twelfth of a year of service for
each month during the plan year in which the member is credited
with an hour of service. A member is not entitled to credit for
years of service for any time period during which he or she
received disability pigments under section fourteen or fifteen of
this article. Except as specifically excluded, years of service
include covered employment prior to the effective date. Years of
service which are credited to a member prior to his or her receipt
of accumulated contributions upon termination of employment
pursuant to section thirteen of this article or section thirty,
article ten, chapter five of this code, shall be disregarded for
all purposes under this plan unless the member repays the
accumulated contributions with interest pursuant to section
thirteen of this article or had prior to the effective date made
the repayment pursuant to section eighteen, article ten, chapter five of this code.
(jj) "Required beginning date' means April 1 of the calendar
year following the later of:
(1) The calendar year in which the member attains age seventy
and one-half; or
(2) The calendar year in which he or she retires or otherwise
separates from covered employment.
§5-10E-2a. Meaning of terms.
Any term used in this article has the same meaning as when
used in a comparable context in the laws of the United States,
unless a different meaning is clearly required. Any reference in
this article to the Internal Revenue Code means the Internal
Revenue Code of 1986, as it has been amended.
§5-10E-3. Creation and administration of West Virginia
Correctional Officer's retirement system;
specification of actuarial assumptions.
Notwithstanding any other provision of the code, there is
hereby created the West Virginia Correctional Officer's retirement
system. The purpose of this system is to provide for the orderly
retirement of Correctional Officers who become superannuated
because of age or permanent disability and to provide certain
survivor death benefits, the retirement system constitutes a body
corporate. All business of the system shall be transacted in the
name of the West Virginia Correctional Officer's retirement system. the board shall specify and adopt all actuarial assumptions for
the, plan at its first meeting of every calendar year or as soon
thereafter as may be practicable, which assumptions shall become
part of the plan.
§5-10E-4. Article to be liberally construed; supplements federal
social security; federal qualification requirements.
(a) This article shall be liberally construed so as to provide
a general retirement system for Correctional Officers eligible to
retire under the provisions of this plan. Nothing in this article
may be construed to permit a employing agency to substitute this
plan for federal social security now in force in West Virginia.
(b) The board shall administer the plan in accordance with its
terms and may construe the terms and determine all questions
arising in connection with the administration, interpretation and
application of the plan. 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 plan, the board may employ those persons it
considers necessary or desirable to administer the plan. The board
shall administer the plan for the exclusive benefit of the members
and their beneficiaries subject to the specific provisions of the
plan.
(c) The plan 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.
(d) Notwithstanding any other provision of state law, the
board shall administer the plan to fulfill this intent for the
exclusive benefit of the members 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 of
chapter five to assure compliance with the requirements of this
section.
§5-10E-5. Members.
(a) Any Correctional Officer first employed by the State of
West Virginia in covered employment after the effective date of
this article shall be a member of this retirement system and does
not qualify for membership in any other retirement system
administered by the board, so long as he or the remains employed in
covered employment.
(b) Any Correctional Officer employed in covered employment on
the effective date of this article shall within six months of that
effective date notify in writing both the employing agency in which
he or she is employed and the board, of his or her desire to become
a member of the plan if this time period is extended to January 30,
2009. However, any Correctional Officer employed in covered
employment on the effective date of this article has an additional time period consisting of the ten-day period following the day
after which this section becomes law to notify in writing both the
employing agency he or she is employed and the board of his or her
desire to become a member of the plan. Any Correctional Officer
who elects to become a member of the plan ceases to be a member or
have any credit for covered employment in any other retirement
system administered by the board and shall continue to be
ineligible for membership in any other retirement system
administered by the board so long as the Correctional Officer
remains employed in covered employment in this plan. In addition,
any Correctional Officer who elects during the time period from
July 1, 2009, to January 30, 2010, or who so elects during the ten-
day time period occurring immediately following the day after the
day the amendments made during the 2009 legislative session become
law, to transfer from the Public Employees Retirement System to the
plan created in this article shall contribute to the plan created
in this article at the rate set forth in section seven of this
article retroactive to July 1, 2009. Any Correctional Officer who
does not affirmatively elect to become a member of the plan
continues to be eligible for any other retirement system as is from
time to time offered to other state employees but is ineligible for
this plan regardless of any subsequent termination of employment
and rehire.
(c) Any Correctional Officer employed in covered employment on the effective date of this article who has timely elected to
transfer into this plan as provided in subsection (b) of this
section shall be given credited service at the time of transfer for
all credited service then standing to the Correctional Officer's
service credit in the Public Employees Retirement System regardless
of whether the credited service, as that term is defined in section
two, article ten, chapter five of this code, was earned as a
Correctional Officer. All the credited service standing to the
transferring Correctional Officer's credit in the Public Employees
Retirement Fund System at the time of transfer into this plan shall
be transferred into the plan created by this article, and the
transferring Correctional Officer shall be given the same credit
for the purposes of this article for all service transferred from
the Public Employees Retirement System as that transferring
Correctional Officer would have received from the Public Employees
Retirement System as if the transfer had not occurred. In
connection with each transferring Correctional Officer receiving
credit for prior employment as provided in this subsection, a
transfer from the Public Employees Retirement System to this plan
shall be made pursuant to the procedures described in section eight
of this article, if a member of this plan who has elected to
transfer from the Public Employees Retirement System into this plan
pursuant to subsection (b) of this section may not, after having
transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit
relating to periods of noncorrectional officer service which were
withdrawn from the Public Employees Retirement System prior to his
or her elective transfer into this plan.
(d) Any Correctional Officer who was employed as a
Correctional Officer prior to the effective date of this article,
but was not employed as a Correctional Officer on the effective
date of this article, shall become a member upon rehire as a
Correctional Officer. For purposes of this subsection, the
member's years of service and credited service in the Public
Employees Retirement System prior to the effective date of this
article shall not be counted for any purposes under this plan
unless:
(1) The Correctional Officer has not received the return of
his or her accumulated contributions in the Public Employees
Retirement System pursuant to section thirty, article ten, chapter
five of this code; or
(2) The accumulated contributions returned to the member from
the Public Employees Retirement System have been repaid pursuant to
section thirteen of this article. If the conditions of subdivision
(1) or (2) of this subsection are met, all years of the
Correctional Officer's covered employment shall be counted as years
of service for the purposes of this article.
(e) Once made, the election provided in this section is irrevocable. All Correctional Officers first employed after the
effective date and Correctional Officers electing to become members
as described in this section shall be members as a condition of
employment and shall make the contributions required by section
seven of this article.
(f) Notwithstanding any other provisions of this article, any
individual who is a leased employee is not eligible to participate
in the plan. For purposes of this plan, a "leased employee" means
any individual who performs services as an independent contractor
or pursuant to an agreement with an employee leasing organization
or 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.
§5-10E-6. Creation of fund; investments.
(a) There is hereby created the "West Virginia Correctional
Officer Retirement Fund" for the benefit of the members of the
retirement system created pursuant to this article and the
dependents of any deceased or retired member of the system.
(b) All moneys paid into and accumulated in the fund, except
such amounts as are designated by the board for payment of benefits
as provided in this article, shall be held in trust and invested in
the consolidated pensions fund as administered by the state
Investment Management Board as provided by law.
§5-10E-7. Members' contributions; employer contributions.
(a) There shall be deducted from the monthly salary of each
member and paid into the fund an amount set by Legislature of his
or her monthly salary. An additional amount shall be paid to the
fund by the employing agency in which the member is employed in
covered employment in an amount determined by the board. In no
year may the total of the contributions provided in this section,
to be paid by the employing agency, exceed ten and one-half percent
of the total payroll for the members in the employ of the State of
West Virginia for the preceding fiscal year. If the board finds
that the benefits provided by this article can be actually funded
with a lesser contribution, then the board shall reduce the
required member or employer contributions or both. The sums
withheld each calendar month shall be paid to the fund no later
than fifteen days following the end of the calendar month.
(b) Any active member who has concurrent employment in an
additional job or jobs and the additional employment requires the
Correctional Officer to be a member of another retirement system
which is administered by the Consolidated Public Retirement Board
pursuant to article ten-d, chapter five of this code shall make an
additional contribution to the fund of eight and one-half percent
of his or her monthly salary earned from any additional employment
which requires the Correctional Officer to be a member of another
retirement which is administered by the Consolidated Public
Retirement Board pursuant to article ten-d, chapter five of this code. An additional amount shall be paid to the fund by the
concurrent employer for which the member is employed in an amount
determined by the board, if in no year may the total of the
contributions provided in this section, to be paid by the
concurrent employer, exceed ten and one-half percent of the monthly
salary of the employee. If the board finds that the benefits
provided by this article can be funded with a lesser contribution,
then the board shall reduce the required member or employer
contributions or both. The sums withheld each calendar month shall
be paid to the fund no later than fifteen days following the end of
the calendar month.
§5-10E-8. Transfer from Public Employees Retirement System.
(a) The Consolidated Retirement Board shall, within ninety
days of the effective date of the transfer of a Correctional
Officer from the Public Employees Retirement System to the plan,
transfer assets from the Public Employees Retirement System Trust
Fund into the West Virginia Correctional Officer Trust Fund.
(b) The amount of assets to be transferred for each
transferring Correctional Officer shall be computed as of July 1,
2009, using the actuarial valuation assumptions in effect for July
1, 2009, actuarial valuation of Public Employees Retirement System,
and updated with seven and one-half percent annual interest to the
date of the actual asset transfer. The market value of the assets
of the transferring Correctional Officer in the Public Employees Retirement System shall be determined as of the end of the month
preceding the actual transfer. To determine the computation of the
asset share to be transferred the board shall:
(1) Compute the market value of the Public Employees
Retirement System assets;
(2) Compute the accrued liability for all Public Employees
Retirement System retirees, beneficiaries, disabled retirees and
terminated inactive members;
(3) Reduce the market value of Public Employees Retirement
System assets by the accrued liability determined in subdivision
(2) of this subsection;
(4) Compute the entry age method accrued liability for all
active Public Employees Retirement System members;
(5) Compute the share of accrued liability as determined
pursuant to subdivision (4) of this subsection, that is
attributable to those Correctional Officer in Public Employees
Retirement System who have elected to transfer to the plan;
(6) Compute the percentage of active's accrued liability
computed to the Correctional Officer by dividing subdivision (5) by
subdivision (4) of this subsection;
(7) Determine the asset share to be transferred from Public
Employees Retirement System to the plan by multiplying subdivision
(3) times subdivision (6) of this subsection.
(c) Once a Correctional Officer has elected to transfer from the Public Employees Retirement System, transfer of that amount as
calculated in accordance with subsection (b) of this section by the
Public Employees Retirement System shall operate as a complete bar
to any further liability to the transferring from the Public
Employees Retirement System, and constitutes an agreement whereby
the transferring Correctional Officer forever indemnifies and holds
harmless the Public Employees Retirement System from providing him
or her any form of retirement benefit whatsoever until such time as
that Correctional Officer obtains other employment which would make
him or her eligible to reenter the Public Employees Retirement
System with no credit whatsoever for the amounts transferred to the
Correctional Officer's retirement system.
(d) The board shall cause a judicial determination to be made
regarding the transfer of assets from the Public Employees
Retirement System to the Correctional Officer's retirement system
by causing a suit to be filed in the Supreme Court of Appeals of
West Virginia seeking a writ of mandamus on or before July 31,
2009.
(e) Any Correctional Officer who elected, on or before January
30, 2010, to transfer to the plan created by this article, has
until January 1, 2011, to pay any amounts required by section seven
of this article as a result of the Correctional Officer's transfer
to the Correctional Officer retirement fund.
§5-10E-8a. Notice requirements; test case.
(a) Each employing agency shall prepare a written notice to be
delivered to each Correctional Officer employed prior to July 1,
2009. This notice shall clearly and accurately explain the
benefits, financial implications and consequences to a Correctional
Officer of electing to participate in the retirement plan created
in this article, including the consequences and financial
implications in regard to the benefits under the public employees
insurance plan as set forth in article sixteen, chapter five of
this code for those Correctional Officer employed by a State agency
which participates in that insurance plan. This notice shall be
distributed to each Correctional Officer and the employing agency
shall obtain a signed receipt from each Correctional Officer
acknowledging that the Correctional Officer was provided a copy of
the notice required in this subsection. If a Correctional Officer
makes the election provided for in section eight of this article,
he or she shall be considered to have made a voluntary, informed
decision in regard to the election to participate in the retirement
system created in this article.
(b) The Consolidated Retirement Board shall cause to be
included in the judicial determination required in section eight of
this article the issue regarding the possible loss of any rights in
regard to benefits accorded the electing Correctional Officer under
the West Virginia Public Employees Insurance Act, article sixteen,
chapter five of this code, and whether a Correctional Officer, by electing to participate in the retirement plan created in this
article, is being unlawfully discriminated against, or is being
unlawfully deprived of a right or benefit to which he or she would
otherwise be entitled.
(c) Nothing in this section may be construed to alter, affect
or change any of the rights and benefits of any Correctional
Officer who has insurance coverage under article sixteen, chapter
five of this code as a result of being a spouse or dependant of a
participant who is the primary insured under article sixteen,
chapter five of this code.
(d) Nothing contained in this section may be construed to
affect or pertain to any life insurance coverage wider article
sixteen, chapter five of this code.
§5-10E-9. Retirement; commencement of benefits.
A member may retire and commence to receive retirement income
payments on the first day of the calendar month following the
board's receipt of the member's voluntary written application for
retirement. Before receiving retirement income payments, the member
shall have ceased covered employment and reached early or normal
retirement age. The retirement income payments shall be in an
amount as provided under section eleven of this article, if
retirement income payments under this plan shall be subject to
section nine-b of this article. Upon receipt of the application,
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 member, the board shall process
the member's request and commence payments as soon as
administratively feasible.
§5-10E-9a. 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 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 of any additional limitation on the annuities
required by this section.
§5-10E-9b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any inconsistent provisions of this plan. This section applies to plan
years beginning after December 31, 1986. Notwithstanding anything
in the plan to the contrary, the payment of benefits under this
article shall be determined and made in accordance with Section
401(a)(9) of the Internal Revenue Code and the regulations
thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the plan to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under Section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary or over a period not extending beyond the life
expectancy of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the plan has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the plan shall be
distributed by December 31 of the calendar year containing the
fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary, commencing on or before December 31 of the calendar
year immediately following the calendar year in which the member
died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The December 31 of the calendar year in which the member
would have attained age seventy and one-half; or
(B) The earlier of: (i) The December 31 of the calendar year
following the calendar year in which the member died; or (ii) the
December 31 of the calendar year following the calendar year in
which the spouse died.
§5-10E-9c. Direct rollovers.
(a) This section applies to distributions made on or after
January 1, 2003. Notwithstanding any contrary provision of this
article that would otherwise limit a distributee's election under
this plan, 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 $500 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 distributes or
the joint lives or the joint life expectancies of the distributee
and the distributees designated beneficiary, or for a specified
period of ten years or mom; (ii) any distribution to the extent 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; (iv) any hardship distribution described in Section
401(k)(2)(8)(0(iv) of the Internal Revenue Code; and (v) any other
distribution or distributions reasonably expected to total less
than $200 during a year. For distributions after December 31, 2011,
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. 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 December 31, 2011, 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 plan to the
eligible retirement plan.
(b) Nothing in this section shall be construed as permitting
rollovers to this plan or any other retirement system administered
by the board.
§5-10E-9d. 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 January 1, 1, 2012.
Notwithstanding any contrary provision of this article 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 solely for the purpose of
purchasing permissive service credit, in whole or 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 is this article:
(1) 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;
(2) 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;
(3) 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
(4) 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. 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 such policies, practices and procedures established by the
board from time to time.
For purposes of this section, the following definitions apply:
(A) Permissive service credit means service credit which is
permitted to be purchased under the toners of the retirement system
by voluntary contributions in an amount which does not exceed the amount necessary to fluid 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,
(B) "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.
§5-10E-10. Retirement credited service through member's use, as
option, of accrued annual or sick leave days.
Any member accruing annual leave or sick leave days may, after
the effective date of this section, elect to use the days at the time of retirement to acquire additional credited service in this
retirement system: Provided, That the accrued annual or sick leave
may not be used to purchase health insurance under the Public
Employees Insurance Agency until the member reaches the age of
fifty-five. The days shall be applied on the basis of two workdays'
credit granted for each one day of accrued annual or sick leave
days, with each month of retirement service credit to equal twenty
workdays and with any remainder of ten workdays or more to
constitute a full month of additional credit and any remainder of
less than ten workdays to be dropped and not used, notwithstanding
any contrary provisions of the code. The credited service shall be
allowed and not considered to controvert the requirement of no more
than twelve months' credited service in any year's period.
§5-10E-11. Retirement benefits.
This section provides for a member's accrued benefit payable
starting at the member's annuity starting date which follows the
completion of a written application for the commencement of
benefits. The member shall receive the accrued retirement benefit
in the normal form or in an actuarial equivalent amount in an
optional form as provided under section twelve of this chapter.
The first day of the calendar month following the calendar month of
birth shall be used in lieu of any birth date that does not fall on
the first day of a calendar month.
(a) Normal retirement. -- A member whose annuity starting date is the date the member attains normal retirement age or later is
entitled to his or her accrued retirement benefit based on years of
service and final average salary at termination of employment.
(b) Early retirement. -- A member who ceases covered
employment and has attained early retirement age while in covered
employment may elect to receive retirement income payments
commencing on the first day of the month coincident with or
following the date the member ceases covered employment. "Normal
retirement age" for such a member is the first day of the calendar
month coincident with or next following the month in which the
member attains the age of fifty years. If the member's annuity
starting date is prior to the date the member attains normal
retirement age, his or her accrued benefit is reduced to the
actuarial equivalent benefit amount based on the years and months
by which his or her annuity starting date precedes the date he or
she attains normal retirement age.
(c) Retirement benefits shall be paid monthly in an amount
equal to one twelfth of the retirement income payments elected and
at those times established by the board. Notwithstanding any other
provision of the plan, a member who is married on the annuity
starting date will receive his or her retirement income payments in
the form of a sixty-six and two-thirds percent joint and survivor
annuity with his or her spouse unless prior to the annuity starting
date the spouse waives the form of benefit.
§5-10E-12. Annuity options.
Prior to the effective date of retirement, but not thereafter,
a member may elect to receive retirement income payments in the
normal form, or the actuarial equivalent of the normal form from
the following options:
(a) Option A -- Joint and Survivor Annuity. -- A life annuity
payable during the joint lifetime of the member and his or her
beneficiary who is a natural person with an insurable interest in
the member's life. Upon the death of either the member or his or
her beneficiary, the benefit shall continue as a life annuity to
the survivor in an amount equal to fifty percent, sixty-six and
two-thirds percent, seventy-five percent or one hundred percent of
the amount paid while both were living as selected by the member.
If the retiring member is married, the spouse shall sign a waiver
of benefit rights if the beneficiary is to be other than the
spouse.
(b) Option B - Contingent Joint and Survivor Annuity. -- A
life annuity payable during the joint lifetime of the member and
his or her beneficiary who must be a natural person with an
insurable interest in the member's life. Upon the death of the
member, the benefit shall continue as a life annuity to the
beneficiary in an amount equal to fifty percent, sixty-six and two-
thirds percent, seventy-five percent or one hundred percent of the
amount paid while both were living as selected by the member. If the beneficiary dies first, the monthly amount of benefits may not
be reduced, but shall be paid at the amount that was in effect
before the death of the beneficiary. If the retiring member is
married, the spouse shall sign a waiver of benefit rights if the
beneficiary is to be other than the spouse.
(c) Option C -- Ten Years Certain and Life Annuity". -- A life
annuity payable during the member's lifetime but in any event for
a minimum of ten years. If the member dies before the expiration
of ten years, the remaining payments shall be made to a designated
beneficiary, if any, or otherwise to the member's estate.
(d) Option D -- Level Income Annuity. - A life annuity payable
monthly in an increased amount "A" from the time of retirement
until the member is social security retirement age, and then a
lesser amount "B" payable for the member's lifetime thereafter,
with these amounts computed actuarially to satisfy the following
two conditions:
(1) Actuarial equivalence. -- The actuarial present value at
the date of retirement of the member's annuity if taken in the
normal form must equal the actuarial present value of the term life
annuity in amount "A" plus the actual present value of the deferred
life annuity in amount "B"; and
(2) Level income. -- The amount "A" equals the amount "B" plus
the amount of the member's estimated monthly social security
primary insurance amount that would commence at the date amount "B" becomes payable. For this calculation, the primary insurance
amount is estimated when the member applies for retirement, using
social security law then in effect, using assumptions established
by the board.
In the case of a member who has elected the options set forth
in subdivisions (a) and (b) of this section, respectively, and
whose beneficiary dies prior to the member's death, the member may
name an alternative beneficiary. If an alternative beneficiary is
named within eighteen months following the death of the prior
beneficiary, the benefit shall be adjusted to be the actuarial
equivalent of the benefit the member is receiving just after the
death of the member's named beneficiary. If the election is not
made until eighteen months after the death of the prior
beneficiary, the amount shall be reduced so that it is only ninety
percent of the actuarial equivalent of the benefit the member is
receiving just after the death of the member's named beneficiary.
§5-10E-13. Refunds to certain members upon discharge or
resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the board, entitled to receive from the
fund the member's accumulated contributions. Except as provided in
subsection (b) of this section, upon withdrawal the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member of this plan who ceases employment in covered
employment and active participation in this plan, and who
thereafter becomes reemployed in covered employment may not receive
any credited service for any prior withdrawn accumulated
contributions from either this plan or the Public Employees
Retirement System relating to the prior covered employment unless
following his or her return to covered employment and active
participation in this plan, the member redeposits in this plan the
amount of the withdrawn accumulated contributions submitted on
salary earned while a Correctional Officer, together with interest
on the accumulated contributions at the rate determined by the
board from the date of withdrawal to the date of redeposit. Upon
repayment he or she shall receive the same credit on account of his
or her former service in covered employment as if no refund had
been made. The repayment authorized by this subsection shall be
made in a lump sum within sixty months of the Correctional
Officer's reemployment in covered employment or if later, within
sixty months of the effective date of this article.
(c) A member of this plan who has elected to transfer from the
Public Employees Retirement System into this plan pursuant to
subsection (b) of section five of this article may not, after being
transferred into and become an active member of this plan,
reinstate to his or her credit in this plan any service credit
relating to periods of noncorrectional officer service which were withdrawn from the Public Employees Retirement System plan prior to
his or her elective transfer into this plan.
(d) Every member who completes sixty months of covered
employment is eligible, upon cessation of covered employment, to
either withdraw his or her accumulated contributions in accordance
with subsection (a) of this section, or to choose not to withdraw
his or her accumulated contribution and to receive retirement
income payments upon attaining normal retirement age.
(e) Notwithstanding any other provision of this article,
forfeitures under the plan shall not be applied to increase the
benefits any member would otherwise receive under the plan.
§5-10E-14. Awards and benefits for disability - duty related.
Any member who after the effective data of this article and
during covered employment:
(A) Has been or becomes either totally or partially disabled
by injury, illness or disease; and
(B) The disability is a result of an occupational risk or
hazard inherent in or peculiar to the services required of members;
or
(C) The disability was incurred while performing Correctional
Officer functions during either scheduled work hours or at any
other time; and
(D) In the opinion of the board, the member is by reason of
the disability unable to perform adequately the duties required of a Correctional Officer, is entitled to receive and shall be paid
from the fund in monthly installments during the lifetime of the
member, or if sooner, until the member attains normal retirement
age or until the disability sooner terminates, the compensation
under either subdivision (a) or (b) of this section.
(a) If the member is totally disabled, the member shall
receive ninety percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
member's disability award, or the shorter period if the member has
not worked twelve months.
(b) If the member is partially disabled, the member shall
receive forty-five percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
member's disability award, or the shorter period if the member has
not worked twelve months.
If the member remains partially disabled until attaining sixty
years of age, the member shall then receive the retirement benefit
provided in sections eleven and twelve of this article.
§5-10E-15. Same - Due to other causes.
(a) Any member who after the effective date of this article
and during covered employment: (1) Has been or becomes totally or
partially disabled from any cause other than those set forth in
section fourteen of this article and not due to vicious habits,
intemperance or willful misconduct on his or her part; and (2) in the opinion of the board, he or she is by reason of the disability
unable to perform adequately the duties required of a Correctional
Officer, is entitled to receive and shall be paid from the fund in
monthly installments during the lifetime of the member, or if
sooner, until the member attains normal retirement age or until the
disability terminates the compensation set forth in, either
subsection (b) or (c) of this section.
(b) If the member is totally disabled, he or she shall receive
sixty-six and two-thirds percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
disability award, or the shorter period, if the member has not
worked twelve months.
(c) If the member is partially disabled, he or she shall
receive thirty-three and one-third percent of his or her average
full monthly compensation for the twelve-month contributory period
preceding the disability award, or the shorter period, if the
member has not worked twelve months.
(d) If the member remains disabled until attaining sixty years
of age, then the member shall receive the retirement benefit
provided for in sections eleven and twelve of this article.
(e) The board shall propose legislative rules for promulgation
in accordance with article three, chapter twenty-nine-a of this
code concerning member disability payments so as to ensure that the
payments do not exceed one hundred percent of the average current salary in any given state agency for the position last held by the
member.
§5-10E-16. Same Physical examinations; termination of disability.
The board may require any member who has applied for or is
receiving disability benefits under this article to submit to a
physical examination, mental examination or both, by a physician or
physicians selected or approved by the board and may cause all
costs incident to the examination and approved by the board to be
paid from the fund. The costs may include hospital, laboratory, X-
ray, medical and physicians' fees. A report of the findings of any
physician shall be submitted in writing to the board for its
consideration. If, from the report, independent information, or
from the report and any hearing on the report, the board is of the
opinion and finds that:
(1) The member has become reemployed as a law-enforcement
officer or correctional officer;
(2) Two physicians who have examined the member have found
that considering the opportunities for correctional officers in
West Virginia, the member could be so employed as a correctional
officer; or
(3) Other facts exist to demonstrate that the member is no
longer totally disabled or partially disabled as the case may be,
then the disability benefits shall cease. If the member was
totally disabled and is found to have recovered, the board shall determine whether the member continues to be partially disabled.
If the board finds that the member is no longer totally disabled
but is partially disabled, then the member shall continue to
receive partial disability benefits in accordance with this
article. Benefits shall cease once the member has been found to be
no longer either totally or partially disabled. the board shall
require recertification for each partial or total disability at
regular intervals as specified by the guidelines adopted by the
Public Employees Retirement System.
§5-10E-17. Prior disability.
Any Correctional Officer who became totally disabled as a
result of illness or injury incurred in the line of duty prior to
the effective date of this article may be a member of the plan at
his or her election and is entitled to disability, death and
retirement benefits under this article in lieu of any other
disability, death or retirement benefits provided solely in
conjunction with a retirement system of this state or employing
agency, if the Correctional Officer would have been eligible for
disability under section fourteen of this article had that section
been in effect at the time of the disability. The amounts of the
benefits shall be determined as if the disability first commenced
after the effective date of this article with monthly compensation
equal to that average monthly compensation which the member was
receiving in the plan year prior to the initial disability. For the purposes of this section, benefits paid pursuant to chapter
twenty-three of this code are not death or retirement benefits
provided solely in conjunction with a retirement system of this
state.
§5-10E-18. Awards and benefits to surviving spouse - When member
dies in performance of duty, etc.
(a) The surviving spouse of any member who, after the
effective date of this article while in covered employment, has
died or dies by reason of injury, illness or disease resulting
front an occupational risk or hazard inherent in or peculiar to the
service required of members, while the member was or is engaged in
the performance of his or her duties as a Correctional Officer, or
the survivor spouse of a member who dies from any cause while
receiving benefits pursuant to section fourteen of this article, is
entitled to receive and shall be paid from the fund benefits as
determined in subsection (b) of this section: To the surviving
spouse annually, in equal monthly installments during his or her
lifetime an amount equal to the greater of: (i) Two thirds of the
annual compensation received in the preceding twelve-month period
by the deceased member; or (ii) if the member dies after his or her
early or normal retirement age, the monthly amount which the spouse
would have received had the member retired the day before his or
her death, elected a one hundred percent joint and survivor annuity
with the spouse as the joint annuitant, and then died.
(b) Benefits for a surviving spouse received under this
section, section twenty and section twenty-one of this article are
in lieu of receipt of any other benefits under this article for the
spouse or any other person or under any other state retirement
system based upon the member's covered employment.
§5-10E-19. Same - When member dies from nonservice-connected
causes.
(a) In any case where a member who has been a member for at
least ten years, while in covered employment after the effective
date of this article, has died or dies from any cause other than
those specified in section eighteen of this article and not due to
vicious habits, intemperance or willful misconduct on his or her
part, the fund shall pay annually in equal monthly installments to
the surviving spouse dining his or her lifetime, a sum equal to the
greater of:
(i) One half of the annual compensation received in the
preceding twelve-month employment period by the deceased member; or
(ii) If the member dies after his or her early or normal
retirement age, the monthly amount which the spouse would have
received had the member retired the day before his or her death,
elected a one hundred percent joint and survivor annuity with the
spouse as the joint annuitant, and then died. Where the member is
receiving disability benefits under section fourteen of this
article at the time of his or her death, the most recent monthly compensation determined under section seventeen of this article
shall be substituted for the annual compensation in (i) of this
section.
(b) Benefits for a surviving spouse received under this
section, section twenty and section twenty-one of this article are
in lieu of receipt of any other benefits under this article for the
spouse or any other person or under any other state retirement
system based upon the member's covered employment.
§5-10E-20. Additional death benefits and scholarships - Dependent
children.
(a) In addition to the spouse death benefits in sections
eighteen and nineteen of this article, the surviving spouse is
entitled to receive and there shall be paid to the spouse $100
monthly for each dependent child.
(b) If the surviving spouse dies or if there is no surviving
spouse, the fund shall pay monthly to each dependent child a sum
equal to one fourth of the surviving spouse's entitlement under
either section nineteen or twenty of this article. If there is
neither a surviving spouse nor a dependent child, the fund shall
pay in equal monthly installments 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. When there is only 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. However, if there is no surviving spouse, dependent
child, nor dependent parent of the deceased member the accumulated
contributions shall be paid to a named beneficiary or
beneficiaries. In addition, if there is no surviving spouse,
dependent child, nor dependent parent of the deceased member, nor
any named beneficiary or beneficiaries then the accumulated
contributions shall be paid to the estate of the deceased member.
(c) Any person qualifying as a dependent child under this, 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 $6,000, 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 long as the recipient makes application to the
board on an approved form and under such rules as the board may
provide, and maintains scholastic eligibility as defined by the
institution or the board. The board may propose legislative rules
for promulgation in accordance with article three, chapter twenty-
nine-a of this code which define age requirements, physical and
mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary
and not inconsistent with this section.
§5-10E-21. Burial benefit.
Any member who dies as a result of any service related illness
or injury after the effective date is entitled to a lump sum burial
benefit of $5,000. If the member is married, the burial benefit
shall be paid to the member's spouse. If the member is not married,
the burial benefit shall be paid to the member's estate for the
purposes of paying burial expenses, settling the member's final
affairs, or both. Any unspent balance shall be distributed as
apart of the member's estate.
§5-10E-22. Double death benefits prohibited.
A surviving spouse is not entitled to receive simultaneous
death benefits under this article as a result of the death of two
or more members to whom the spouse was married. Any spouse who
becomes eligible for a subsequent death benefit under this article
while receiving a death benefit under this article shall receive
the higher benefit, but not both.
§5-10E-23. Loans to members.
(a) A member who is not yet receiving disability or retirement
income benefits from the plan may borrow from the plan no more than
one time in any year an amount up to one half of his or her
accumulated contributions, but not less than $500 nor more than
$8,000. The maximum amount of any loan shall not exceed the lesser of the following: (1) $8,000; or (2) fifty percent of his or her
accumulated contributions. No member is eligible for more than one
outstanding loan at any time. No loan may be made from the plan if
the board determines that the loans constitute more than fifteen
percent of the amortized cost value of the assets of the plan as of
the last day of the preceding plan year. The board may discontinue
the loans any time it determines that cash flow problems might
develop as a result of the loans. Each loan shall be repaid through
monthly installments over periods of six through sixty months and
carry interest on the unpaid balance and an annual effective
interest rate that is two hundred basis points higher than the most
recent rate of interest used by the board for determining actuarial
contributions levels. However, interest charged shall be
commercially reasonable in accordance with Section 72(p)(2) of the
Internal Revenue Code and federal regulations issued thereunder.
Monthly loan payments shall be calculated to be as nearly equal as
possible with all but the final payment being an equal amount. An
eligible member may make additional loan payments or pay off the
entire loan balance at any time without incurring any interest
penalty. At the member's option, the monthly loan payment may
include a level premium sufficient to provide declining term
insurance with the plan as beneficiary to repay the loan in full
upon the member's death. If a member declines the insurance and
dies before the loan is repaid, the unpaid balance of the loan shall be deducted from the lump sum insurance benefits payable
under section twenty-one of this article.
(b) A member with an unpaid loan balance who wishes to retire
may have the loan repaid in full by accepting retirement income
payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then
converting the remaining of the reserve to a monthly pension
payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due
thereon, shall at the option of the board become due and payable
without further notice or demand upon the occurrence with respect
to the borrowing member of any of the following events of default:
(1) Any payment of principal and accrued interest on a loan remains
unpaid after they become due and payable under the terms of the
loan or after the grace period established in the discretion of the
retirement board; (2) the borrowing member attempts to make an
assignment for the benefit of creditors of his or her benefit under
the retirement system; or (3) any other event of default set forth
in rules promulgated by the board pursuant to the authority granted
in section one, article ten-d, chapter five of this code. Any
offset of an unpaid loan balance shall be made only at such time as
the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment, security, and otherwise as the board may determine.
(e) Notwithstanding anything in this section to the contrary,
the loan program authorized by this section shall comply with
Section 72(p)(2) and Section 401 of the Internal Revenue Code and
the federal regulations issued thereunder. The board may: (a)
Apply and construe this section and administer the plan loan
program in such a manner as to comply with Sections 72(p)(2) and
Section 401 of the Internal Revenue Code; (b) adopt plan loan
policies or procedures consistent with these federal law
provisions; and (c) take any actions it considers necessary or
appropriate to administer the plan loan program created under this
section in accordance with these federal law provisions. The board
is further authorized in connection with the plan loan program to
take any actions that may at any time be required by the Internal
Revenue Service regarding compliance with the requirements of
Section 72(p)(2) or Section 401 of the Internal Revenue Code,
notwithstanding any contrary provision in this article.
(f) Notwithstanding anything contrary in this article, the
loan program authorized by this section shall not be available to
any Correctional Officer who becomes a member of the Correctional
Officer Retirement System on or after July 1, 2016.
§5-10E-24. Return to covered employment by retired member.
The annuity of any member who retires under this article and
who resumes service in covered employment shall be suspended while the member continues in covered employment. The monthly annuity
payment for the month in which the service resumes shall be
prorated to the date of commencement of service, and the member
shall again become a contributing member during resumption of
service. At the conclusion of resumed service in covered
employment the member shall have his or her annuity recalculated to
take into account the entirety of service in covered employment.
§5-10E-25. 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, spouse or
other beneficiary to benefits under this article, to the return of
contributions, or to any retirement, death or disability payments
under this article, are exempt from any state or municipal tax; are
not subject to execution, garnishment, attachment or any other
process whatsoever with the exception that the benefits or
contributions under the system shall be 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 all unassignable except as is provided in this article.
§5-10E-26. Fraud; penalties; and repayment.
Any person who knowingly makes any false statement or who
falsifies or permits to be falsified any record of the retirement
system in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not
to exceed $1,000, by confinement in jail not to exceed one year, or
both fined and confined. Any increased benefit received by any
person as a result of the falsification or fraud shall be returned
to the fund upon demand by the board.
§5-10E-27. 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 years of service for the
purpose of determining his or her years of credited service 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; and
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty.
(b) In addition, any member who while in covered employment
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 September 1, 1940 and the close of hostilities of World War II, or between June
27, 1950 and the close of the armed conflict in Korea on July 27,
1953, between August 1, 1964, 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 credited service, 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
employing agency and offered to resume service as a Correctional
Officer; 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 service allowable under subsections
(a) and (b) of this section may not exceed five years.
(d) Any service credit allowed under this section may be
credited one time only for each Correctional Officer, regardless of
any changes in job title or responsibilities.
(e) 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
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the seniority 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(0) of the Internal
Revenue Code.
§5-10E-28. Pro rata redaction of annuities.
Any contrary provision in this article notwithstanding, if at
the end of any fiscal year the total of the annuities paid from the
retirement fund during the said fiscal year is more than ten
percent of the sum of the balances in the fund at the end of the
said fiscal year, the said annuities payable in the next ensuing
fiscal year shall be reduced, pro rata, so that the sum of the
annuities so reduced shall not exceed ten percent of the sum of the
said balances in the fund. The said pro rata reduction shall be applied to all annuities payable in the said ensuing fiscal year.
§5-10E-29. Effective date; report to Joint Committee on
Government and Finance; special starting date for
benefits.
(a) This article shall become effective July 1, 2009. No
payout of any benefits may be made to any person prior to January
1, 2011. However, members who retired due to a disability may begin
receiving the benefits at the rate and in the amount specified in
either section fourteen or section fifteen of this article, as the
case may be, from this fund after June 30, 2010. Until June 30,
2010, those members who retired due to a disability may draw
benefits from this fund at the rate and in the amount set forth in
section twenty-five, article ten, chapter five of this code.
(b) During the eighteen-month period before the payout of
benefits begins, the Joint Committee on Government and Finance
shall cause an interim study or studies to be conducted on
potential effects of the implementation of this retirement system,
including, but not limited to, potential funding mechanisms to
provide health insurance coverage for retirees in the fifty to
fifty-five age group. After the effective date of this provision,
the director of the Public Employees Insurance Agency shall
promulgate a rule governing the funding of health insurance
coverage for retirees under the plan provided for in this article
who are in the fifty to fifty-five year age group, which rule may be filed as an emergency rule. However, any rule filed as an
emergency rule pursuant to this subsection shall be reified at the
earliest opportunity as a legislative rule for review and
promulgation in accordance with article three, chapter twenty-nine-
a of this code.
§5-10E-30. Limitation of employing agency liability.
No employing agency which has timely met all of its
obligations under this article is liable for any payments or
contributions to the Correctional Officer retirement plan which are
owed to the plan by another state agency. No employing agency may
deposit funds into the Correctional Officer Retirement Fund in
excess of the amount specified in section seven of this article,
the fees set forth in article fourteen-e of this chapter and the
fees set forth in section seventeen, article three, chapter
seventeen-a of this code.
§5-10E-31. Benefits not forfeited if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of such termination or
discontinuance, to the extent then funded, are not forfeited.
NOTE: This bill shall create a new retirement system for
individuals employed as West Virginia Correctional Officers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.