ENROLLED
Senate Bill No. 544
(By Senators Plymale, Prezioso, Fanning, Walker, Jackson, Sprouse
and Kimble)
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[Passed April 12, 1997; in effect from passage.]
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AN ACT to amend and reenact sections two, fourteen and seventeen,
article ten, chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
clarifying calculation of retirement service credit for
legislative employees and purchase of retroactive service
credit.
Be it enacted by the Legislature of West Virginia:
That sections two, fourteen and seventeen, article ten,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
to §5-10-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
shall have the following meanings:
(1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia
public employees retirement system created and established by this
article;
(3) "Board of trustees" or "board" means the board of trustees
of the West Virginia public employees retirement system;
(4) "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; 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 agency or organization established by, or approved by
the department of mental health for the provision of community
health or mental retardation services, and which is supported in
part by state, county or municipal funds: Provided, That any
mental health agency participating in the public employees
retirement system on or before the first day of July, one thousand
nine hundred ninety-seven, shall be deemed 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 the first day of July, one thousand nine hundred
ninety-seven;
(5) "Participating public employer" means the state of West
Virginia, any board, commission, department, institution or
spending unit, and shall include any agency created by rule of the
supreme court of appeals having full-time employees, which for the
purposes of this article shall be deemed 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;
(6) "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 members of the state Legislature, the clerk of the House of
Delegates, the clerk of the state Senate, employees of the state
Legislature whose term of employment is otherwise classified as
temporary and who are employed to perform services required by the
Legislature for its regular sessions or during the interim between regular sessions and who have been or are so employed during
regular sessions or during the interim between regular sessions in
seven consecutive calendar years, as certified by the clerk of the
house in which the employee served, members of the legislative body
of any political subdivision and judges of the state court of
claims shall be considered to be employees, anything contained
herein to the contrary notwithstanding. 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;
(7) "Member" means any person who is included in the
membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity
payable by the retirement system;
(9) "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;
(10) "Service" means personal service rendered to a
participating public employer by an employee, as defined in this
article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member
within this state and for which such member made contributions to
a public retirement system account of this state, to the extent credited him as provided by this article, such revised definition
being retroactive and applicable to the first day of April, one
thousand nine hundred eighty-eight and thereafter;
(13) "Credited service" means the sum of a member's prior
service credit and contributing service credit standing to his
credit as provided in this article;
(14) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by him
to the participating public employer. In the event a member's
remuneration is not all paid in money, his participating public
employer shall fix the value of the portion of his remuneration
which is not paid in money;
(15) "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 one thousand nine hundred seventy-one or thereafter)
during any period of three consecutive years of his credited
service contained within his ten years of credited service
immediately preceding the date his employment with a participating
public employer last terminated; or (b) if he has less than five
years of credited service, the average of the annual rate of
compensation received by him during his total years of credited
service; and in determining the annual compensation, under either
(a) or (b) of this subdivision (15), of a member of the Legislature
who participates in the retirement system as a member of the Legislature in the year one thousand nine hundred seventy-one or in
any year thereafter, his 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 one thousand
nine hundred seventy-one or in any year thereafter, plus any other
compensation he receives in any such year from any other
participating public employer including the state of West Virginia,
without any multiple in excess of one times his actual legislative
compensation as aforesaid 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 one
thousand nine hundred seventy-one who, in either event, was a
member of the Legislature on November thirty, one thousand nine
hundred sixty-eight, or November thirty, one thousand nine hundred
sixty-nine, or November thirty, one thousand nine hundred seventy,
or on November thirty in any one or more of said three years, and
who participated in the retirement system as a member of the
Legislature in any one or more of such years of one thousand nine
hundred sixty-eight, one thousand nine hundred sixty-nine or one
thousand nine hundred seventy, means: (i) Either (notwithstanding
the provisions of this subdivision (15) preceding this proviso) one
thousand five hundred dollars multiplied by eight, plus the highest
other compensation such former member or member received in any one
of said three years from any other participating public employer including the state of West Virginia; or (ii) "final average
salary" determined in accordance with (a) or (b) of this
subdivision (15), whichever computation shall produce the higher
final average salary (and in determining the annual compensation
under (ii) of this proviso, the legislative compensation of any
such former member shall be computed on the basis of one thousand
five hundred dollars multiplied by eight, and the legislative
compensation of any such member shall be computed on the basis set
forth in the provisions of this subdivision (15) immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to such
member shall produce the higher annual compensation);
(16) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his
individual account in the members' deposit fund, together with
regular interest thereon;
(17) "Regular interest" means such rate or rates of interest
per annum, compounded annually, as the board of trustees shall from
time to time adopt;
(18) "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, using the upper cent
for any fraction of a cent;
(19) "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 such mortality and other
tables of experience, and regular interest, as the board of
trustees shall from time to time adopt;
(20) "Retirement" means a member's withdrawal from the employ
of a participating public employer with an annuity payable by the
retirement system;
(21) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of such mortality table and regular
interest as the board of trustees shall from time to time adopt;
and
(22) The masculine gender shall include the feminine gender,
and words of the singular number with respect to persons shall
include the plural number, and vice versa.
§5-10-14. Service credit.
(a) The board of trustees shall credit each member with the
prior service and contributing service to which he or she is
entitled based upon such rules and regulations as the board of
trustees shall from time to time adopt and based upon the
following:
(1) Ten or more days of service rendered by a member in any
calendar month shall be credited as a month of service: Provided,
That for employees of the state Legislature whose term of
employment is otherwise classified as temporary and who are
employed to perform services required by the Legislature for its regular sessions or during the interim between regular sessions and
who have been or are so employed during regular sessions or during
the interim between regular sessions in seven consecutive calendar
years, service credit of one month shall be awarded for all or any
part of each calendar month encompassed within a regular
legislative session, notwithstanding that the actual number of days
served in any one month of the regular session is less than ten
days, and service credit of one month shall be awarded for each ten
days served during the interim between regular sessions, which
interim days shall be cumulatively calculated so that any ten days,
regardless of calendar month or year, shall be calculated toward
any award of one month of service credit;
(2) Ten or more months of service rendered in any calendar
year shall be credited as a year of service;
(3) No more than one year of service may be credited to any
member for all service rendered by him or her in any calendar year;
(4) Service may be credited to a member who was employed by a
political subdivision if his or her employment occurred within a
period of thirty years immediately preceding the date the political
subdivision became a participating public employer.
(b) The board of trustees shall grant service credit to
employees of boards of health, the clerk of the House of Delegates
and the clerk of the state Senate, or to any former and present
member of the state teachers retirement system who have been
contributing members for more than three years, for service previously credited by the state teachers retirement system and
shall require the transfer of the member's contributions to the
system and shall also require a deposit, with interest, of any
withdrawals of contributions any time prior to said member's
retirement. Repayment of withdrawals shall be as directed by the
board of trustees.
(c) Court reporters who are acting in an official capacity,
although paid by funds other than the county commission or state
auditor, may receive prior service credit for such time as served
in such capacity.
(d) Employees of the state Legislature whose term of
employment is otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim between regular sessions may
receive service credit for the time served in that capacity in
accordance with the following. Employees of the state Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature
for its regular sessions or during the interim between regular
sessions and who have been or are so employed during regular
sessions or during the interim between regular sessions in seven
consecutive calendar years, as certified by the clerk of the house
in which the employee served, shall receive service credit of six
months for each regular session served as certified by the clerk of
the house in which the employee served, and shall receive service credit of one month for each ten days served during the interim
between regular sessions, which interim days shall be cumulatively
calculated so that any ten days, regardless of calendar month or
year, shall be calculated toward any award of one month of service
credit. Service credit awarded for legislative employment pursuant
to this subsection shall be used for the purpose of calculating
that member's retirement annuity only, pursuant to section twenty- two of this article, and notwithstanding any other provision of
this section. Service credit awarded for legislative service
pursuant to this subsection shall not be used to determine when an
employment period begins or ends, or to determine when the period
of eligibility or filing for retirement begins to run.
Certification of employment for a complete legislative session and
for days of interim sessions shall be determined by the clerk of
the house in which the employee served, based upon employment
records. Service of fifty-five days of a regular session
constitutes a presumption of service for a complete legislative
session.
Any employee may purchase retroactive service credit for
periods of employment in which contributions were not deducted from
the employee's pay. In the purchase of service credit for
employment prior to 1989 in any department, including the
Legislature, which operated from the general revenue fund and which
was not expressly excluded from budget appropriations in which
blanket appropriations were made for the state's share of public employees' retirement coverage in the years prior to 1989, the
employee shall pay the employee's share only, and not the state's
share. Other employees shall pay the state's share and the
employee's share to purchase retroactive service credit: Provided,
That no legislative employee may be required to pay any interest or
penalty upon the purchase of retroactive service credit in
accordance with the provisions of this section where such employee
was not eligible to become a member during the years he or she is
purchasing retroactive credit for or had the employee attempted to
contribute to the system during the years he or she is purchasing
retroactive service credit for and such contributions would have
been refused by the board: Provided, however, That a legislative
employee purchasing retroactive credit under this section does so
within twenty-four months of becoming a member of the system or no
later than the last day of December, one thousand nine hundred
ninety-nine, whichever shall last occur: Provided further, That
once a legislative employee becomes a member of the retirement
system, he or she may purchase retroactive service credit for any
time he or she was employed by the Legislature and did not receive
service credit.
(e) Former justices of the peace and constables shall be
entitled to credit for retirement purposes for those years of
service as a justice of the peace or constable: Provided, That
they have a minimum of five years contributing service and they compensate the retirement fund in an amount equal to the amount
which they would have contributed for a like period of time,
according to a formula determined by the retirement board, plus an
amount equal to the determined employer's contribution for the same
period. For purposes of calculating the contributions, the salary
for constables shall be deemed to be five thousand dollars per year
and the salary for justices of the peace shall be deemed to be
seven thousand five hundred dollars per year. In addition, they
shall deposit the compounded yearly interest on the aggregate of
the employee and employer contributions at a rate or rates to be
determined by the retirement board: Provided, however, That those
former justices of the peace and constables who elect to seek
credit under this subsection shall be allowed until the thirtieth
day of June, one thousand nine hundred ninety-five, to compensate
the retirement fund as provided herein.
§5-10-17. Retirement system membership.
The membership of the retirement system shall consist of the
following persons:
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who
continue in the employ of the said participating public employer on
and after the said date shall become members of the retirement
system; and all persons who become employees of a participating public employer on or after the said date shall thereupon become
members of the system; except as provided in subdivisions (b) and
(c) of this section.
(b) The membership of the retirement system shall not include
any person who is a member of, or who has been retired by, the
state teachers retirement system, the judges retirement system, the
retirement system of the division of public safety, or any
municipal retirement system for either, or both, policemen or
firemen; and the bureau of employment programs, by the commissioner
of such bureau, may elect whether its employees will accept
coverage under this article or be covered under the authorization
of a separate enactment: Provided, That such exclusions of
membership shall not apply to any member of the state Legislature,
the clerk of the House of Delegates, the clerk of the state Senate
or to any member of the legislative body of any political
subdivision provided he once becomes a contributing member of the
retirement system: Provided, however, That any retired member of
the retirement system of the division of public safety, and any
retired member of any municipal retirement system for either, or
both, policemen or firemen may on and after the effective date of
this section become a member of the retirement system as provided
in this article, without receiving credit for prior service as a
municipal policeman or fireman or as a member of the division of
public safety.
(c) Any member of the state Legislature, the clerk of the
House of Delegates, the clerk of the state Senate and any employee
of the state Legislature whose 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 so employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the clerk of the house
in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he notifies the retirement system in
writing of his intention to be a member of the system and files a
membership enrollment form as the board of trustees shall
prescribe, and each person, upon filing his written notice to
participate in the retirement system, shall by said act authorize
the clerk of the House of Delegates or the clerk of the state
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct such
member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after said deductions have been
made from said member's compensation, such deductions shall be
forwarded to the retirement system.
(d) Should any question arise regarding the membership status
of any employee, the board of trustees has the final power to
decide the question.