H. B. 4424
(By Delegates Swartzmiller, Beach, Pethtel,
Stemple, Williams, Shaver and Ennis)
[Introduced
February 12, 2004
; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact §7-14D-2, §7-14D-5 and
§7-14D-13 of
the code of West Virginia, 1931, as amended, all relating to
technical corrections, grammatical corrections, clarifying
that redeposits are submitted on salary earned (prior to the
creation of the Deputy Sheriff Retirement System Act),
regardless if such prior service in the public employee
retirement system was earned as a deputy sheriff, also
extending the time a member has to repay redeposit for prior
service.
Be it enacted by the Legislature of West Virginia:
That
§7-14D-2, §7-14D-5 and
§7-14D-13 of the code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-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 the provisions of 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 the
provisions of 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
one hundred fifty thousand dollars 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
period for which an amount is received as an annuity by reason of
retirement. For purposes of this subsection, if retirement income
payments commence after the normal retirement age, "retirement"
means the later of the last day the member worked in covered
employment and the 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) "County commission" has the meaning ascribed to it in
section one, article one, chapter seven of this code.
(k) "Covered employment" means either: (1) Employment as a
deputy sheriff and the active performance of the duties required of
a deputy sheriff; 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 deputy sheriff in a job or jobs in addition to his or her
employment as a deputy sheriff where such secondary employment
requires the deputy sheriff to be a member of another retirement
system which is administered by the consolidated public retirement
board pursuant to article ten-d of chapter five of this code; or
(4) service in the public employee's retirement system prior to the
creation of the West Virginia Deputy Sheriff Retirement System Act
regardless if such service was as a deputy sheriff or not and
credited service must be repaid as defined by subsection (b),
section thirteen of this article: Provided, That the deputy
sheriff contribute to the fund created in section six of this
article the amount specified as the deputy sheriff'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) "Deputy sheriff" means an individual employed as a county
law-enforcement deputy sheriff in this state and as defined by
section two, article fourteen, chapter seven of this code.
(n) "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 member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subdivision.
(o) "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.
(p) "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.
(q) "Early retirement age" means age forty or over and
completion of twenty years of service.
(r) "Effective date" means the first day of July, one thousand
nine hundred ninety-eight.
(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 deputy sheriff 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 county commission, irrespective of
mitigation of damages. The same hours of service shall not be
credited both under paragraph (1) or (2) of this subdivision and
under this paragraph. 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 deputy sheriff
after the effective date of this article, as defined in subsection
(r) of this section, or a deputy sheriff 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 he 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 deputy sheriff 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 thirtieth
day of June, 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 deputy sheriff death,
disability and retirement plan established by this article.
(cc) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(dd) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of 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 is so severe that he or she is
not only unable to perform his or her previous work as a deputy sheriff 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 he 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 Year 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 payments 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 twelve 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 the first day of April of
the calendar year following the later of: (i) The calendar year in
which the member attains age seventy and one-half; or (ii) the
calendar year in which he or she retires or otherwise separates
from covered employment.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered
employment after the effective date of this article shall be a
member of this retirement system and plan and does not qualify for
membership in any other retirement system administered by the
board, so long as he or she remains employed in covered employment.
(b) Any deputy sheriff employed in covered employment on the
effective date of this article shall within six months of that
effective date notify in writing both the county commission in the
county in which he or she is employed and the board of his or her
desire to become a member of the plan: Provided, That this time
period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
supreme court of appeals in West Virginia Deputy Sheriffs'
Association, et al v. James L. Sims, et al, No. 25212: Provided,
however, That any deputy sheriff 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 the
amended provisions of this section become law to notify in writing
both the county commission in the county in which he or she is
employed and the board of his or her desire to become a member of
the plan. Any deputy sheriff 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 deputy
sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the
time period from the first day of July, one thousand nine hundred
ninety-eight, to the thirtieth day of January, one thousand nine
hundred ninety-nine, or who so elects during the ten-day time
period occurring immediately following the day after the day the
amendments made during the one thousand nine hundred ninety-nine
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 the first
day of July, one thousand nine hundred ninety-eight. Any deputy
sheriff 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 county employees but is
ineligible for this plan regardless of any subsequent termination
of employment and rehire.
(c) Any deputy sheriff who was employed as a deputy sheriff
prior to the effective date, but was not employed on the effective
date of this article, shall become a member upon rehire as a deputy
sheriff. For purposes of this section, the member's years of
service and credited service prior to the effective date shall not
be counted for any purposes under this plan unless: (1) The deputy sheriff has not received the return of his or her accumulated
contributions in the public employees retirement fund 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 twelve thirteen of this article. If the conditions of
subdivision (1) or (2) of this subsection are met, all years of the
deputy sheriff's covered employment shall be counted as years of
service for the purposes of this article. Each transferring deputy
sheriff shall be given credited service for the purposes of this
article for all covered employment transferred from the public
employees retirement system regardless of whether such credited
service (as that term is defined in section two, article ten,
chapter five of this code) was earned as a deputy sheriff. All
service in the public employees retirement system accrued by a
transferring deputy sheriff shall be transferred into the plan
created by this article and the transferring deputy sheriff shall
be given the same credit for the purposes of this article for all
such covered service which is transferred from the public employees
retirement system as that transferring deputy sheriff would have
received from the public employees retirement system if such
transfer had not occurred. In connection with each deputy sheriff
receiving credit for prior employment provided in this subsection,
a transfer from public employees retirement system to this plan shall be made pursuant to the procedures described in section eight
of this article.
(d) Once made, the election made under this section is
irrevocable. All deputy sheriffs first employed after the
effective date and deputy sheriffs 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.
(e) Notwithstanding any other provisions of this article, any
individual who is a leased employee shall not be 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.
§7-14D-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 who withdraws accumulated contributions from
either this plan or the public employees retirement system and
thereafter becomes reemployed employed in covered employment shall
not receive any credited service for the prior employment unless
following his or her return to being employed in covered
employment, the member redeposits in the fund the amount of the
accumulated contributions, together with interest on the accumulate
accumulated contributions at the rate determined by the board from
the date of withdrawal to the date of redeposit. Upon repayment,
every member shall receive credit for prior service under the
public employees retirement system regardless of whether such
credited service was earned as a deputy sheriff. All service in
the public employees retirement system accrued prior to the
creation of the West Virginia Deputy Sheriff Retirement System Act
(1998,c.240) by a member shall be given credit for all such
covered service. Upon repayment he or she shall receive the same
credit on account of his or her former service as if no refund had
been made. The repayment shall be made in a lump sum within sixty
months of the deputy sheriff's reemployment employment or, if
later, within sixty twenty-four months of the effective date of
this amended article.
(c) 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 early or normal retirement age.
(d) 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.
NOTE: The purpose of this bill is to effect technical
corrections to the Deputy Sheriff Retirement System (DSRS)Act. The
bill clarifies that all prior service earned while a member of the
Public Employees Retirement System, regardless if such service was
earned as a deputy sheriff as currently written in this article,
may be repurchased by the member according to current conditions
outlined in section thirteen, article fourteen-d, chapter seventeen
of this code. The bill extends the time the deputy sheriff would
have to pay back moneys withdrawn for prior service sixty months
from the effective date of this amended article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.