H. B. 4564
(By Delegate Campbell)
[Introduced
February 20, 2004
; referred to the
Committee on Pensions and Retirement then Finance.]
A BILL to amend and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7,
§15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-12,
§15-2A-13, §15-2A-14 and §15-2A-19 of the code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto two new sections, designated §15-2A-11a and
§15-2A-11b, all relating generally to the West Virginia state
police retirement system; adding definitions of
"law-enforcement officer," "partially disabled," "totally
disabled," "physical or mental impairment," "month of
service," and "years of service"; making technical changes;
clarifying beginning date of annuity; providing that member
receiving annuity for partial disability incurred in
performance of duty may be employed as an elected sheriff or
appointed chief of police if it is shown to the board that
such employment is not inconsistent with the partial disability; setting forth limitation on compensation to be
paid to health care providers; requiring that board receive a
copy of employment physical; allowing application for
disability to be made by person acting on member's behalf;
allowing superintendent to petition board for member's
disability when he or she deems the member disabled;
authorizing rules; notification requirements; judicial review;
allowing board to withhold payment pending judicial review;
requiring disability recipient to file annual statement of
earnings and setting forth penalty for refusal or failure to
do so; and annual report of employer's disability retirement
experience.
Be it enacted by the Legislature of West Virginia:
That §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8,
§15-2A-9, §15-2A-10, §15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14
and §15-2A-19 of the code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §15-2A-11a and §15-2A-11b, all
to read as follows:
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Active military duty" means full-time active duty with the armed forces of the United States, namely, the United States
air force, army, coast guard, marines or navy; and service with the
national guard or reserve military forces of any of the armed
forces when the member has been called to active full-time duty and
has received no compensation during the period of such duty from
any person other than the armed forces.
(2) "Base salary" means compensation paid to a member without
regard to any overtime pay.
(3) "Board" means the consolidated public retirement board
created pursuant to article ten-d, chapter five of this code.
(4) "Division" "Department" means the division of public
safety West Virginia state police.
(5) "Final average salary" means the average of the highest
annual compensation received for employment with the division
department, including compensation paid for overtime service,
received by the member during any five calendar years within the
member's last ten years of service.
(6) "Fund" means the West Virginia state police retirement
fund created pursuant to section four of this article.
(7) "Member" or "employee" means a person regularly employed
in the service of the division of public safety after the effective
date of this article.
(8) "Salary" means the compensation of a member, excluding any
overtime payments.
(9) (7) "Internal Revenue Code" means the Internal Revenue
Code of 1986, as it has been amended.
(8) "Law-enforcement officer" means individuals employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including but not limited to positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are purely administrative
in nature.
(9) "Member" or "employee" means a person regularly employed
in the service of the department as a law-enforcement officer after
the effective date of this article.
(10) "Month of service" means each month for which a member is
paid or entitled to payment for at least one hour of service for
which contributions were remitted to the fund. These months shall
be credited to the member for the calendar year in which the duties
are performed.
(11) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in
other types of nonlaw-enforcement employment.
(12) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(10) (13) "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.
(11) (14) "Required beginning date" means the first day of
April of the calendar year following the later of: (a) The
calendar year in which the member attains age seventy and one-half;
or (b) the calendar year in which he or she retires or otherwise
separates from service with the department.
(12) (15) "Retirement system," "plan" or "system" means the
West Virginia state police retirement system created and
established by this article.
(16) "Salary" means the compensation of a member, excluding
any overtime payments.
(17) "Totally disabled" means a member's probable permanent
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, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the department 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.
(18) "Years of service" means the months of service acquired
by a member while in active employment with the department divided
by twelve. Years of service shall be calculated in years and
fraction of a year from the date of active employment of the member
with the department through the date of termination of employment
or retirement from the department. If a member returns to active
employment with the department following a previous termination of
employment with the department, and such member has not received a
refund of contributions plus interest for such previous employment
under section eight of this article, service shall be calculated
separately for each period of continuous employment and years of
service shall be the total service for all such periods of
employment. Years of service shall exclude any periods of
employment with the department for which a refund of contributions plus interest has been paid to the member, unless the member repays
such previous withdrawal as provided in section eight, article two-
a, chapter fifteen to reinstate such years of service.
§15-2A-5. Members' contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member and paid into the fund created pursuant to section four of
this article twelve percent of the amount of his or her salary. An
additional twelve percent of the monthly salary of each member of
the department shall be paid by the state of West Virginia monthly
into such fund out of the annual appropriation for the division
department.
(b) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits.
A member may retire with full benefits upon attaining the age
of fifty-five and completing twenty or more years of service, by
lodging with the consolidated public retirement board his or her
voluntary petition in writing for retirement. A member who is less
than age fifty-five may retire upon completing twenty years or more
of service: Provided, That he or she will receive a reduced
benefit that is of equal actuarial value to the benefit the member
would have received if the member deferred commencement of his or her accrued retirement benefit to the age of fifty-five.
When the retirement board retires a member with full benefits
under the provisions of this section, the board, by order in
writing, shall make a determination that the member is entitled to
receive an annuity equal to two and three-fourths percent of his or
her final average salary multiplied by the number of years, and
fraction of a year, of his or her service in the division
department at the time of retirement. The member's annuity shall
begin the first day of the calendar month following the month in
which his or her application for same is filed with the board on or
after his or her attaining age and/or service requirements, and
termination of employment.
In no event may the provisions of section thirteen, article
sixteen, chapter five be applied in determining eligibility to
retire with either a deferred or immediate commencement of benefit.
§15-2A-7. Annual annuity adjustment.
Every member of the division of public safety department who
is sixty-three years of age or older and who is retired by the
retirement board under the provisions of section six of this
article; every member who is retired under the provisions of
section nine or ten of this article; and every surviving spouse
receiving a benefit pursuant to section twelve, thirteen or
fourteen of this article is eligible to receive an annual
retirement annuity adjustment equal to one percent of his or her retirement award or surviving spouse award. Such adjustments may
not be retroactive. Yearly adjustments shall begin upon the first
day of July of each year. The annuity adjustments shall be awarded
and paid to a member from the fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits
provided in this article.
Any member or beneficiary who receives a benefit pursuant to
the provisions of section nine, ten, twelve, thirteen or fourteen
of this article shall begin to receive the annual annuity
adjustment one year after the commencement of the benefit on the
next July first: Provided, That if the member has been retired for
less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata
share of the full year's annuity adjustment.
§15-2A-8. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who shall be discharged by order of the
superintendent or shall otherwise terminate employment with the
division department shall, at the written request of the member to
the retirement board, be entitled to receive from the retirement
fund a sum equal to the aggregate of the principal amount of moneys
deducted from the salary of the member and paid into the retirement
fund plus four percent interest compounded thereon calculated annually as provided and required by this article.
(b) Any member withdrawing contributions who may thereafter be
reenlisted as a member of the division department shall not receive
any prior service credit on account of the former service, unless
following his or her reenlistment the member shall redeposit in the
fund the amount of the refund, together with interest thereon at
the rate of seven and one-half percent per annum from the date of
withdrawal to the date of redeposit, in which case he or she shall
receive the same credit on account of his or her former service as
if no refund had been made.
(c) Every member who completes ten years of service with the
division of public safety department is eligible, upon separation
of employment with the division department, to either withdraw his
or her contributions in accordance with subsection (a) of this
section, or to choose not to withdraw his or her accumulated
contributions with interest. Upon attainment of age sixty-two, a
member who chooses not to withdraw his or her contributions will be
eligible to receive a retirement annuity. The annuity shall be
payable during the lifetime of the member, and shall be in the
amount of his or her accrued retirement benefit as determined under
section six of this article. The retiring member may choose, in
lieu of such a life annuity, an annuity in reduced amount payable
during the member's lifetime, with one half of the reduced monthly
amount paid to his or her surviving spouse if any, for the spouse's remaining lifetime after the death of the member. Reduction of
such monthly benefit amount shall be calculated to be of equal
actuarial value to the life annuity the member could otherwise have
chosen. Any member choosing to receive the deferred annuity under
this subsection is not eligible to receive the annual annuity
adjustment provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Except as otherwise provided in this section, any member
of the division department who has not yet entered retirement
status on the basis of age and service and who has been or shall
become physically or mentally permanently becomes partially
disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members of the division department and incurred
pursuant to or while the member was or shall be engaged in the
performance of his or her duties as a member of the division
department shall, if, in the opinion of the retirement board, he or
she is by reason of such cause unable to perform adequately the
duties required of him or her as a member of the division
department, but is able to engage in other gainful employment in a
field other than law-enforcement, be retired from active service by
the board. The member shall thereafter be entitled to receive
annually and there shall be paid to the member from the fund in equal monthly installments during the lifetime of the member, or
until the member attains the age of fifty-five or until such
disability shall sooner terminate, one or the other of two amounts,
whichever is greater:
(1) An amount equal to six tenths of the base salary received
in the preceding twelve-month employment period: Provided, That if
the member had not been employed with the division department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the
benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed to be a retirement under
the provisions of section six of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article: Provided, That a member who is
partially disabled under this article may not, while in receipt of
benefits for partial disability, be employed as a law-enforcement
officer: Provided, however, That a member retired on a partial
disability under this article may serve as an elected sheriff or
appointed chief of police in the state without a loss of disability retirement benefits so long as such elected or appointed position
is shown, to the satisfaction of the board, to require the
performance of administrative duties and functions only, as opposed
to the full range of duties of a law-enforcement officer.
(b) If a Any member who has not yet entered retirement status
on the basis of age and service and who shall become becomes
permanently physically or mentally disabled by injury, illness or
disease on what is probably a permanent basis resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of members of the division department and incurred
pursuant to or while such member was or shall be engaged in the
performance of his or her duties as a member of the division
department to the extent that the member is or shall be
incapacitated ever to engage in any gainful employment, the member
shall be entitled to receive annually, and there shall be paid to
such member from the fund in equal monthly installments during the
lifetime of the member or until such disability shall sooner
terminate, an amount equal to the amount of the base salary
received by the member in the preceding twelve-month employment
period.
The superintendent of the division department is authorized to
expend moneys from funds appropriated for the division department
in payment of medical, surgical, laboratory, X-ray, hospital,
ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other
approved appliances which may be reasonably necessary for any
member of the division department who has or shall become
temporarily, permanently or totally disabled by injury, illness or
disease resulting from any occupational risk or hazard inherent in
or peculiar to the service required of members of the division
department and incurred pursuant to or while the member was or
shall be engaged in the performance of duties as a member of the
division department. Whenever the superintendent shall determine
that any disabled member is ineligible to receive any of the
aforesaid benefits at public expense, the superintendent shall, at
the request of the disabled member, refer such matter to the board
for hearing and final decision. In no case will the compensation
rendered to health care providers for medical and hospital services
exceed the then current rate schedule in use by the bureau of
employment programs, workers' compensation division.
§15-2A-10. Same -- Due to other causes.
If a member while in active service of the division has or
shall, in the opinion of the board, become, department becomes
permanently partially or totally disabled on what is probably a
permanent basis to the extent that the member he or she cannot
adequately perform the duties required of a member of the division
department from any cause other than those set forth in the
preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the member shall be retired
by the board. There shall be paid to the member from the fund in
equal monthly installments, commencing on the date the member shall
be retired and continuing during the lifetime of the member; or
until the member attains the age of fifty-five; while in status of
retirement an amount equal to one-half the base salary received by
the member in the preceding twelve-month period: Provided, That if
the member had not been employed with the division department for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit.
Upon attaining age fifty-five, the member shall receive the
benefit provided for in section six of this article as it would
apply to his or her final average salary based on earnings from the
division department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty-five shall be deemed to be a retirement under
the provisions of section six of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article.
§15-2A-11. Same -- Physical examinations;
termination.
The board may require any member who has been or who shall be
retired with compensation on account of disability to submit to a
physical and/or mental examination by a physician or physicians
selected or approved by the retirement board and cause all costs incident to such examination including hospital, laboratory, X-ray,
medical and physicians' fees to be paid out of funds appropriated
to defray the current expenses of the division department, and a
report of the findings of such physician or physicians shall be
submitted in writing to the board for its consideration. If from
the report or from the report and hearing thereon the board shall
be of opinion and find that the disabled member shall have
recovered from such disability to the extent that he or she is able
to perform adequately the duties of a member of the division
law-enforcement officer, the board shall order the member to
reassume active duty as a member of the division and thereupon that
all payments from the fund shall be terminated. If from the report
or the report and hearing thereon, the board shall be of the
opinion and find that the disabled member has recovered from the
his or her previously determined to be a probable permanent
disability to the extent that he or she is able to engage in any
gainful employment but unable to adequately perform the duties
required as a member of the division of a law-enforcement officer,
the board shall order in the case of a member retired under the
provisions of section nine of this article that the disabled member
be paid from the fund an amount equal to six tenths of the base
salary paid to the member in the last twelve-month employment
period. The board shall order in the case of a member retired
under the provisions of section ten of this article that the disabled member be paid from the fund an amount equal to one fourth
of the base salary paid to the member in the last twelve-month
employment period: Provided, That if the member had not been
employed with the division department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit.
§15-2A-11a. Physical examinations of prospective members;
application for disability benefit;
determinations.
(a) Not later than thirty days after an employee becomes a
member of the fund, the employer shall forward to the board a copy
of the physician's report of a physical examination which
incorporates the standards or procedures described in section
seven, article two, chapter fifteen of this code. A copy of the
physician's report shall be placed in the employee's retirement
system file maintained by the board.
(b) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member's behalf. After receiving an
application for a disability benefit from a member or a person
acting with legal authority on behalf of the member, the board
shall notify the superintendent of the department that an
application has been filed: Provided, That when, in the judgment
of the superintendent, a member is no longer physically or mentally fit for continued duty as a member of the West Virginia state
police and the member has failed or refused to make application for
disability benefits under this article, the superintendent may
petition the board to retire such member on the basis of disability
pursuant to rules which may be established by the board. Within
thirty days of the superintendent's receipt of the notice from the
board or the filing of the superintendent's petition with the
board, the superintendent shall forward to the board a statement
certifying the duties of the member's employment, information
relating to the superintendent's position on the work relatedness
of the member's alleged disability, complete copies of the member's
medical file and any other information requested by the board in
its processing of the application.
(c) The board shall adopt rules relating to the processing of
applications and petitions for disability retirement under this
article.
(d) The board shall notify a member and the superintendent of
its final action on the disability application or petition within
ten days of the board's final action. The notice shall be sent by
certified mail, return receipt requested. If either the member or
the superintendent is aggrieved by the decision of the board and
intends to pursue judicial review of the board's decision as
provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the board within twenty days of the member's or superintendent's receipt of the
board's notice that they intend to pursue judicial review of the
board's decision. The board retains the discretion to not commence
payment of a disability retirement under the provisions of this
article if either the member or the superintendent of the West
Virginia state police has notified the board of an intent to pursue
judicial review, until the statutory time limit has expired for the
filing of actions seeking judicial review has expired, or until
final judgment on any action seeking judicial review, whichever is
later.
(e) The board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which shall be proposed by the board for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code. The board may waive the
requirement that a disability benefit recipient file the annual
statement of earnings if the board's physician certifies that the
recipient's disability is ongoing. The board shall annually
examine the information submitted by the recipient. If a
disability recipient refuses to file the statement or information,
the disability benefit shall be suspended until the statement and
information are filed. If the refusal continues for one year, the
recipient's right to the disability benefit shall be terminated
retroactive to the original suspension.
§15-2A-11b. Annual report on each employer's disability
retirement experience.
Not later than the first day of January, two thousand five,
and each first day of January thereafter, the board shall prepare
a report for the preceding fiscal year of the disability retirement
experience of the state police. The report shall specify the total
number of disability applications submitted, the status of each
application as of the last day of the fiscal year, total
applications granted or denied, and the percentage of disability
benefit recipients to the total number of the state police
employees who are members of the fund. The report shall be
submitted to the governor and the chairpersons of the standing
committees of the Senate and House of Delegates with primary
responsibility for retirement legislation.
§15-2A-12. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent
child scholarship and amount.
The surviving spouse, the dependent child or children or
dependent parent or parents of any member who has lost or shall
lose his or her life by reason of injury, illness or disease
resulting from an occupational risk or hazard inherent in or
peculiar to the service required of members while the member was or
shall be engaged in the performance of his or her duties as a
member of the division department, or the survivor of a member who dies from any cause after having been retired pursuant to the
provisions of section nine of this article, is entitled to receive
and shall be paid from the fund benefits as follows: To the
surviving spouse annually, in equal monthly installments during his
or her lifetime, one or the other of two amounts, which shall
become immediately available and which shall be the greater of:
(1) An amount equal to nine tenths of the base salary received
in the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the division department for twelve months prior to his or her
death, the amount of monthly salary shall be annualized for the
purpose of determining the benefit; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse is entitled to
receive and there shall be paid to that person one hundred fifty
dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there
shall be paid monthly to each dependent child or children from the
fund a sum equal to one third of the surviving spouse's
entitlement. If there are no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the fund 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: Provided, That when there is but 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.
Any person qualifying as a surviving dependent child under
this section is, in addition to any other benefits due under this
or other sections of this article, entitled to receive a
scholarship to be applied to the career development education of
that person. This sum, up to but not exceeding seven thousand five
hundred dollars, 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 any rules as the board provides and maintains scholastic
eligibility as defined by the institution or the board. The board
may by appropriate rules define age requirements, physical and
mental requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
Awards and benefits for a surviving spouse or dependents of a
member received under any section or any of the provisions of this
retirement system shall be in lieu of receipt of any benefits for these persons under the provisions of any other state retirement
system. Receipt of benefits under any other state retirement
system shall be in lieu of any right to receive any benefits under
this retirement system, so that only a single receipt of state
retirement benefits shall occur.
§15-2A-13. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division department, before having completed twenty years of
service as a member of the division department, has died or shall
die from any cause other than those specified in this article and
not due to vicious habits, intemperance or willful misconduct on
his or her part, there shall be paid annually in equal monthly
installments from the fund to the surviving spouse of the member
during his or her lifetime, or until such time as the surviving
spouse remarries, a sum equal to one half of the base salary
received in the preceding twelve-month employment period by the
deceased member: Provided, That if the member had not been
employed with the division department for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit. If there is no
surviving spouse or the surviving spouse dies or remarries, there
shall be paid monthly to each dependent child or children from the
fund a sum equal to one fourth of the surviving spouse's entitlement. If there are no surviving spouse and no dependent
child or children, there shall be paid annually in equal monthly
installments from the fund to the dependent parents of the deceased
member during their joint lifetimes a sum equal to the amount that
a surviving spouse would have been entitled to receive: Provided,
however, That when there is but one dependent parent surviving,
then that parent shall be entitled to receive during his or her
lifetime one-half the amount which both parents, if living, would
have been entitled to receive.
§15-2A-14. Awards and benefits to dependents of member -- When
member dies after retirement or after serving twenty
years.
When any member of the division department has completed
twenty years of service or longer as a member of the division
department and has died or shall die from any cause or causes other
than those specified in this article before having been retired by
the board, and when a member in retirement status has died or shall
die after having been retired by the board under the provisions of
this article, there shall be paid annually in equal monthly
installments from the fund to the surviving spouse of the member,
commencing on the date of the death of the member and continuing
during the lifetime or until remarriage of the surviving spouse, an
amount equal to two thirds of the retirement benefit which the
deceased member was receiving while in status of retirement, or would have been entitled to receive to the same effect as if the
member had been retired under the provisions of this article
immediately prior to the time of his or her death. In no event
shall the annual benefit payable be less than five thousand
dollars. In addition thereto, the surviving spouse is entitled to
receive and there shall be paid to the surviving spouse from the
fund the sum of one hundred dollars monthly for each dependent
child or children. If the surviving spouse dies or remarries, or
if there is no surviving spouse, there shall be paid monthly from
the fund to each dependent child or children of the deceased member
a sum equal to one fourth of the surviving spouse's entitlement.
If there is no surviving spouse or no surviving spouse eligible to
receive benefits and no dependent child or children, there shall be
paid annually in equal monthly installments from the fund 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 been entitled to receive: Provided,
That when there is but one dependent parent surviving, that parent
shall be entitled to receive during his or her lifetime one-half
the amount which both parents, if living, would have been entitled
to receive.
The member may choose a higher percentage of surviving spouse
benefits by taking an actuarially determined reduced initial
benefit so that the chosen spouse benefit and initial benefit would be actuarially equivalent to the normal spouse benefit and initial
benefit. The retirement board shall design these benefit options
and provide them as choices for the member to select. For the
purposes of this subsection, "initial benefit" means the benefit
received by the member upon retirement.
§15-2A-19. 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 credited service for the
purpose of determining the amount of retirement award under the
provisions of this article 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;
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under this article, he or she has actually served with the
division department for twenty years exclusive of his or her active
military duty.
(b) In addition, any person who while a member of the division
department 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 the first day of September, one thousand nine hundred
forty, and the close of hostilities in World War II, or between the
twenty-seventh day of June, one thousand nine hundred fifty, and
the close of the armed conflict in Korea on the twenty-seventh day
of July, one thousand nine hundred fifty-three, between the first
day of August, one thousand nine hundred sixty-four, 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 credit on the
minimum period of service required by law for retirement pay from
the service of the division of public safety department, or its
predecessor agency, 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 superintendent and offered to resume service as an active member of
the division department; 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 military service credit allowable
under this section may not exceed five years for any member of the
division department.
(d) 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 authority 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(u) of the Internal
Revenue Code.
NOTE: The purpose of this bill is to enact comprehensive
changes to the West Virginia State Police Retirement System. The
bill adds definitions of "law-enforcement officer," "partially
disabled," "totally disabled," "physical or mental impairment,"
"month of service," and "years of service." The bill also makes
technical changes.
The bill also clarifies the beginning date of annuity and
provides that a member receiving an annuity for partial disability
incurred in performance of duty may be employed as an elected
sheriff or appointed chief of police if it is shown to the board
that such employment is not inconsistent with the partial
disability, but may not otherwise be employed in a law-enforcement
capacity. The bill specifies a limitation on compensation to be
paid to health care providers to be not greater than that paid by
the Workers' Compensation Commission. The bill requires the board
receive a copy of the employment physical within thirty days
following employment.
The bill adds substantial language regarding disability
retirement, including allowing an application for disability to be
made by a person acting on member's behalf and allowing
superintendent to petition board for member's disability when he or
she deems the member disabled. The bill authorizes legislative
rules with respect to retirement and specifies notification
requirements.
The bill provides for judicial review of its decisions and
allows the board to withhold payment pending judicial review. The
bill also mandates that a disability recipient file annual
statement of earnings and sets forth a penalty for refusal or
failure to do so. The penalty is forfeiture of benefits. Finally
the bill requires an annual report of employer's disability
retirement experience.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§15-2A-11a and §15-2A-11b are new; therefore, strike-throughs
and underscoring have been omitted.