Senate Bill No. 590
(By Senators Foster and Dempsey)
____________
[Introduced March 18, 2005; referred to the Committee
on Pensions; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto three new sections, designated §15-2-25b, §15-
2-31a and §15-2-31b; and to amend and reenact §15-2-26, §15-2-
27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-
32, §15-2-33, §15-2-34 and §15-2-37 of said code, all relating
to the West Virginia State Police Death, Disability and
Retirement Fund generally; adding general definitions; adding
definitions of "law-enforcement officer", "partially
disabled", "totally disabled" and "physical or mental
impairment"; making technical changes; providing for probable
permanent disability status; specifying that total disability
is inability to perform any substantial gainful employment and
that partial disability is inability to perform
law-enforcement duties; specifying limitation on compensation
rendered to health care providers; 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; 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; 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 §15-2-26, §15-2-27, §15-2-27a, §15-2-28, §15-2-29,
§15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-34 and §15-2-37 of
the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto three
new sections, designated §15-2-25b, §15-2-31a and §15-2-31b, all to
read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Board" or "Retirement Board" means the Consolidated
Public Retirement Board created pursuant to article ten-d, chapter
five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund," "plan," or "system," means the West Virginia
Death, Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual 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 determined by the Board
to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State
Police who is an active participant in the Fund.
(f) "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.
(g) "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.
(h) "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 subsection, 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 State Police 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: (1) The work exists in the immediate area in which the
member lives; (2) a specific job vacancy exists; or (3) the member
would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund;
designating the Consolidated Public Retirement Board
as Administrator of Fund.
(a) There
shall be is continued the Death, Disability and
Retirement Fund heretofore created for the benefit of members of the
division of public safety State Police and any dependent of a
retired or deceased member thereof.
(b) There shall be deducted from the monthly payroll of each
member of the
division of public safety State Police and paid into
such the Fund six percent of the amount of
his or her the member's
salary:
Provided, That beginning on the first day of July, one
thousand nine hundred ninety-four, there shall be deducted from the
monthly payroll of each member and paid into the Fund seven and
one-half percent of the amount of
his or her the member's salary:
Provided, however, That on and after the first day of July, one
thousand nine hundred ninety-five, there shall be deducted from the
monthly payroll of each member and paid into the Fund nine percent
of the amount of
his or her the member's salary. An additional
twelve percent of the monthly salary of each member of the
division
State Police shall be paid by the State of West Virginia monthly
into such Fund out of the annual appropriation for the
division
State Police: Provided further, That beginning on the first day of
July, one thousand nine hundred ninety-five, the state shall pay
thirteen percent of the monthly salary of each member into the
Fund:
And provided further, That beginning on the first day of
July, one thousand nine hundred ninety-six, the state shall pay
fourteen percent of the monthly salary of each member into the
Fund:
And provided further, That on and after the first day of
July, one thousand nine hundred ninety-seven, the state shall pay fifteen percent of the monthly salary of each member into the
Retirement Fund. There shall also be paid into the Fund amounts
that have previously been collected by the Superintendent of the
division of public safety State Police on account of payments to
members for court attendance and mileage, rewards for apprehending
wanted persons, fees for traffic accident reports and photographs,
fees for criminal investigation reports and photographs, fees for
criminal history record checks, fees for criminal history record
reviews and challenges or from any other sources designated by the
Superintendent. All moneys payable into the Fund shall be
deposited in the State Treasury and the Treasurer and Auditor shall
keep a separate account thereof on their respective books.
(c) Notwithstanding any other provisions of this article,
forfeitures under the Fund
shall may not be applied to increase the
benefits any member would otherwise receive under the Fund.
(d) The moneys in this Fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are hereby exempt
from any state or municipal tax;
shall may not be subject to
execution, garnishment, attachment or any other process whatsoever,
with the exception that the benefits or contributions under the
Fund
shall be are 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
shall be are unassignable except as is provided in this article. The
State
Police Death, Disability and Retirement Fund shall be administered
by the Consolidated Public Retirement Board created pursuant to
article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the Death,
Disability and Retirement Fund, except such amounts as
shall be are
designated or set aside by the awards, shall be invested by the
State Board of Investments as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a) The
retirement Board shall retire any member of the
division of public safety State Police when the member has both
attained the age of fifty-five years and completed twenty-five
years of service as a member of the
division State Police,
including military service credit granted under the provisions of
section twenty-eight of this article.
(b) The
retirement Board shall retire any member of the
division of public safety State Police who has lodged with the
secretary Executive Director of the Consolidated Public Retirement
Board his or her voluntary petition in writing for retirement, and:
(1) Has
or shall have completed twenty-five years of service
as a member of the
division State Police (including military
service credit granted under the provisions of section twenty-eight
of this article); or
(2) Has
or shall have attained the age of fifty years and has or shall have completed twenty years of service as a member of the
division State Police (excluding military service credit granted
under section twenty-eight of this article).
or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the division
department (excluding military service credit granted under section
twenty-eight of this article.)
(c) When the
retirement Board retires any member under any of
the provisions of this section, the Board shall, by order in
writing, make an award directing that the member
shall be is
entitled to receive annually and that there shall be paid to the
member from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of the member while in
status of retirement one or the other of two amounts, whichever is
the greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the
division of public safety State Police;
or
(2) The sum of six thousand dollars.
When a member has
or shall have served twenty years or longer
but less than twenty-five years as a member of the
division State
Police and
shall be is retired under any of the provisions of this
section before he or she
shall have attained attains the age of fifty years, payment of monthly installments of the amount of
retirement award to
such the member shall commence on the date he
or she attains the age of fifty years. Beginning on the fifteenth
day of July, one thousand nine hundred ninety-four, in no event may
the provisions of section thirteen, article sixteen, chapter five
of this code be applied in determining eligibility to retire with
either immediate or deferred commencement of benefit.
(d) Any individual who is a leased employee
shall not be is
not eligible to participate in the Fund. For purposes of this Fund,
a "leased employee" means any individual who performs services as
an independent contractor or pursuant to an agreement with an
employee leasing organization or other 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.
§15-2-27a. Retirement annual annuity adjustments.
Every member of the
division of public safety State Police who
is fifty-five years of age or older and who is retired by the
retirement Board under the provisions of section twenty-seven of
this article; every member of the
division of public safety State
Police who is retired by the
retirement Board under the provisions
of section twenty-nine or thirty of this article; and every
surviving spouse or other beneficiary receiving a benefit pursuant
to section thirty-three or thirty-four of this article, is eligible
to receive an annual retirement annuity adjustment equal to three and seventy-five hundredths percent of his or her retirement award
or surviving spouse award:
Provided, That for any person retiring
on and after the fifteenth day of September, one thousand nine
hundred ninety-four, the annual retirement annuity adjustment shall
be equal to two percent of his or her retirement award or award
paid to a surviving spouse or other beneficiary.
Such The
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 the members from the Death, Disability
and Retirement Fund in equal monthly installments while the member
is in status of retirement. The annuity adjustments shall
supplement the retirement awards and benefits as provided in this
article.
Any member or beneficiary who receives a benefit pursuant to
the provisions of section twenty-nine, thirty, thirty-three or
thirty-four 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.
§15-2-28. 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) For purposes of this section, the term "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
such 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.
(b) Any member of the
department State Police who has
previously served on active military duty
shall be is entitled to
and receive credit on the minimum period of service required by law
for retirement pay from
the service of the department of public
safety State Police service 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 section thirty of this article, he or she has actually served with the
department State Police for twenty years
exclusive of his or her active military duty.
(c) The amount of retirement pay to which
any such the member
is entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the
department State Police equal to the
average monthly salary which he or she actually received from the
department for his or her total service with the
department State
Police exclusive of the active military duty. The Superintendent
is authorized to transfer and pay into the Death, Disability and
Retirement Fund from moneys appropriated for the
department State
Police a sum equal to eighteen percent of the aggregate of the
salaries on which the retirement pay of all such members has been
calculated and determined for their periods of active military
duty. In addition, any person who while a member of the
department
State Police 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
said 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 the Congress or by executive or other order
of the President, shall
be entitled to and receive credit on the
minimum period of service required by law for retirement pay from
the service
of the department of public safety in the State Police
for a period equal to the full time he or she,
has or shall,
pursuant to
such commission, enlistment, induction or call, have
served with
said 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 has presented himself to the Superintendent
and offered to resume service as an active member of the
department
State Police; 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.
(d) That amount of retirement pay to which
any such the member
shall be is entitled shall be calculated and determined as if the
member has continued in the active service of the
department State Police at the rank or grade to him
or her appertaining at the time
of
such the commission, induction, enlistment or call, during a
period coextensive with the time the member served with the armed
forces pursuant to the commission, induction, enlistment or call.
The Superintendent of the
department State Police is authorized to
transfer and pay each month into the Death, Disability and
Retirement Fund from moneys appropriated for the
department State
Police a sum equal to eighteen percent of the aggregate of salary
which all
such the members would have been entitled to receive had
they continued in the active service of the
department State Police
during a period coextensive with the time
such the members served
with the armed forces pursuant to the commission, induction,
enlistment or call:
Provided, That the total amount of military
service credit allowable under this section
shall may not exceed
five years.
(e) Notwithstanding any of 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.
§15-2-29. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Any member of the
division State Police who has
not yet
entered retirement status on the basis of age and service and who
becomes partially been or shall become physically or mentally
permanently 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 State Police and
incurred pursuant to or while
such the member was
or shall be
engaged in the performance of his or her duties as a member of the
division State Police shall, if, in the opinion of the Retirement
Board, he or she is by reason of
such cause the injury, illness or
disease probably permanently unable to perform adequately the
duties required of him or her as a member of the
division State
Police, but is able to engage in any other gainful employment
in a
field other than law enforcement, be retired from active service by
the Retirement Board. The member thereafter
shall be is entitled
to receive annually and there shall be paid to
such the member from
the Death, Disability and Retirement Fund in equal monthly
installments during the lifetime of
such the member; or until the
member attains the age of fifty; or until
such the disability
shall sooner
terminate terminates, one or the other of two amounts,
whichever is greater:
(1) An amount equal to two thirds of the salary received in
the preceding twelve-month employment period:
Provided, That if
the member had not been employed with the
division State Police 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.
(b) Upon attaining age fifty, the member shall receive the
benefit provided
for in subsection (c), section twenty-seven of
this article as it would apply to his or her aggregate career
earnings from the
division State Police through the day immediately
preceding his or her disability. The recalculation of benefit upon
a member attaining age fifty
shall be deemed is considered to be a
retirement under the provisions of section twenty-seven 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 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 the 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.
(c) If any member
not yet in retirement status on the basis of
age and service is found by the Board to be permanently and totally
disabled as the result of a physical or mental impairment shall
become permanently physically or mentally 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 State Police and incurred pursuant to or while
such the
member was
or shall be engaged in the performance of his or her
duties as a member of the
division State Police, to the extent that
such member is or shall be incapacitated ever to engage in any
gainful employment such the member
shall be is entitled to receive
annually and there shall be paid to
such the member from the Death,
Disability and Retirement Fund in equal monthly installments during
the lifetime of
such the member or until
such the disability
shall
sooner
terminate terminates, an amount equal to the amount of the
salary received by the member in the preceding twelve-month
employment period:
Provided, That in no event may
such the amount
be less than fifteen thousand dollars per annum, unless required by
section forty of this article:
Provided, however, That if the
member had not been employed with the
division State Police for
twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.
(c) (d) The Superintendent is authorized to expend moneys from
Funds appropriated for the
division State Police 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 State Police who
has or shall become becomes 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 State
Police and incurred pursuant to or while
such the member was or
shall be is engaged in the performance of duties as a member of the
division State Police. Whenever the Superintendent
shall determine
determines that any disabled member is ineligible to receive any of
the aforesaid benefits at public expense, the Superintendent shall,
at the request of
such the disabled member, refer
such the matter
to the Consolidated Public Retirement Board for hearing and final
decision.
(d) (e) For the purposes of this section, the term "salary"
does not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the
division State
Police has,
or shall in the opinion of the
retirement Board, become permanently
partially or totally disabled to the extent that
such
the member cannot adequately perform the duties required of a
member of the
division State Police 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,
such the
member shall be retired by the
retirement Board.
Such The member
shall be is entitled to receive annually and there shall be paid to
such the member while in status of retirement, from the Death,
Disability and Retirement Fund in equal monthly installments during
the lifetime of
such the member or until
such the disability
shall
sooner
terminate terminates, a sum equal to one-half the salary
received in the preceding twelve-month period:
Provided, That if
the member had not been employed with the
division State Police for
twelve months prior to the disability, the amount of monthly salary
shall be annualized for the purpose of determining the benefit. If
such the member, at the time of
such the retirement under the terms
of this section,
shall have has served twenty years or longer as a
member of the
division State Police, such the member
shall be is
entitled to receive annually and there shall be paid to
such the
member from the Death, Disability and Retirement Fund in equal
monthly installments, commencing on the date
such the member
shall
be is retired and continuing during the lifetime of
such the
member, until the member attains the age of fifty, while in status
of retirement, an amount equal to one-half the salary received by the member in the preceding twelve-month period:
Provided, however,
That if the member had not been employed with the
division State
Police for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit
provided
for in subsection (c), section twenty-seven of this
article as it would apply to his or her aggregate career earnings
from the
division State Police through the day immediately
preceding his or her disability. The recalculation of benefit upon
a
member member's attaining age fifty
shall be deemed is considered
to be a retirement under the provisions of section twenty-seven of
this article, for purposes of determining the amount of annual
annuity adjustment and for all other purposes of this article.
§15-2-31. Same - Physical examinations; termination.
The Consolidated Public Retirement 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 Board and cause all costs incident to
such the examination
including hospital, laboratory, X ray, medical and physicians' fees
to be paid out of funds appropriated to defray the current expense of the
division State Police, and a report of the findings of
such
the physician or physicians shall be submitted in writing to the
Consolidated Public Retirement Board for its consideration. If
from
such the report or from
such the report and hearing thereon
the
retirement Board
shall be of opinion and find finds that
such
the disabled member
shall have is recovered from
such the
disability to the extent that he or she is able to perform
adequately the duties of
a law-enforcement officer, a member of the
division the Board shall order
such member to reassume active duty
as a member of the division and thereupon that all payments from
the Death, Disability and Retirement Fund
shall be terminated. If
from the report or the report and hearing thereon, the Board
shall
be of the opinion and find finds that the disabled member
shall
have has recovered from
the his or her previously determined
probable permanent disability to the extent that he or she is able
to engage in
any gainful employment but
remains unable to
adequately perform the duties
of a law-enforcement officer,
required as a member of the division the Board shall order the
payment, in monthly installments of an amount equal to two thirds
of the salary, in the case of a member retired under the provisions
of section twenty-nine of this article, or equal to one half of the
salary, in the case of a member retired under the provisions of
section thirty of this article, excluding any compensation paid for
overtime service, for the twelve-month employment period preceding the disability:
Provided, That if the member
had was not
been
employed with the
division State Police for twelve months prior to
the disability, the amount of monthly salary shall be annualized
for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) 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 State Police 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 the 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 for
processing of the application.
(b) The Board shall adopt rules relating to the processing of
applications and petitions for disability retirement under this
article.
(c) A member of the Fund who has served fifteen or more years
as an active member of the West Virginia State Police before filing
an application for disability benefits under this article and who
is found by the Board to be totally disabled as the direct and
proximate result of cardiovascular disease not present at the time
of the member's entry examination by the West Virginia State Police
is presumed to have incurred the disability as a result of the
member's duties as a member of the West Virginia State Police.
This presumption is rebuttable by a preponderance of the evidence
that the member's cardiovascular disease is not a direct and
proximate result of the member's duties as a member of the West
Virginia State Police.
(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, or until final judgment
in any action seeking judicial review under section four, article
five, chapter twenty-nine-a of this code, 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 may be adopted by the Board. 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 Board shall suspend the disability benefit until the statement
and information are filed. If the refusal continues for one year,
the Board shall terminate the recipient's right to the disability
benefit retroactive to the original suspension.
§15-2-31b. Annual report on each employer's disability retirement experience.
Not later than the first day of January, two thousand six,
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 State Police employees
who are members of the Fund. The Board shall submit the copies of
the report to the Governor, the legislative librarian and the
chairpersons of the standing committees of the Senate and House of
Delegates with primary responsibility for retirement legislation.
§15-2-32. Retired member not to exercise police authority;
retention of group insurance
.
A member
who has been or shall be retired shall not, while in
retirement status
may not exercise any of the powers conferred upon
active members by section twelve of this article; but
shall be is
entitled to receive free of cost to
such the member and retain as
his
or her separate property one complete standard uniform
prescribed by section nine of this article:
Provided, That
such
the uniform may be worn by a member in retirement status only on
such occasions
as shall be prescribed by the Superintendent. The
Superintendent is authorized to maintain at public expense for the benefit of all members in retirement status that group life
insurance mentioned in section ten of this article.
The
superintendent when he shall be of opinion that the public safety
shall require, When the Superintendent believes it is necessary for
public safety, he or she may recall to active duty during such
period as the Superintendent shall determine, any member who
shall
be is retired under the provisions of section twenty-seven of this
article, provided the consent of
such the member to reassume duties
of active membership
shall first be had and is first obtained.
When any member in retirement
shall reassume reassumes status of
active membership
such the member, during the period
such the
member
shall remain remains in active status,
shall not be is not
entitled to receive retirement pay or benefits but in lieu thereof
shall be is entitled to receive that rate of salary and allowance
pertinent to the rank or grade held by
such the member when
retired. When
such the member
shall be is released from active
duty he
or she shall reassume the status of retirement and shall
thereupon be entitled to receive appropriate benefits as provided
by this article:
Provided, That the amount of
such the benefits
shall in no event be may be no less than the amount determined by
the order of the
retirement Board previously made in his
or her
behalf.
§15-2-33. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent child scholarship and amount
.
The surviving spouse or the dependent child or children or
dependent parent or parents of any member who
has lost or shall
lose loses 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
such the member
was
or shall be engaged in the performance of his or her duties as
a member of the
division State Police, or if
said the member
shall
die dies from any cause after having been retired pursuant to the
provisions of section twenty-nine of this article, the surviving
spouse or other dependent
shall be is entitled to receive and shall
be paid from the Death, Disability and Retirement 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 seven tenths of the 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 State Police 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.
In addition thereto
such the surviving spouse
shall be is entitled to receive and
there shall be paid
to such person one
hundred dollars monthly for each dependent child.
or children. If
such the surviving spouse dies or if there is no surviving spouse,
there shall be paid monthly to each
such dependent child
or
children from the Death, Disability and Retirement Fund a sum equal
to twenty-five percent of
the a 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
Death, Disability and Retirement 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 qualified as a surviving dependent child under this
section shall, in addition to any other benefits due under this or
other sections of this article, be 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 Death, Disability and
Retirement 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 those 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 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 member's surviving spouse or
dependents received under any section or any of the provisions of
this retirement system
shall be is in lieu of receipt of any
such
survivor's benefits
for such persons under the provisions of any
other state retirement system. Receipt of benefits under any other
state retirement system
shall be is in lieu of any right to receive
any benefits under this retirement system, so that only a single
receipt of retirement benefits shall occur.
For the purposes of this section, the term "salary" does not
include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
division State Police, before having completed twenty years of
service as a member of the
division State Police, has died or shall die dies 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 said Death, Disability and Retirement Fund to the
surviving spouse of
such the member during his or her lifetime, or
until such time as said surviving spouse remarries, a sum equal to
one half of the 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 State Police for
twelve months prior to his or her death, the amount of monthly
salary shall be annualized for the purpose of determining the
benefit.
Such The benefit shall become immediately available upon
the death of the member. 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 Death, Disability and
Retirement Fund, a sum equal to twenty-five percent of
the a
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 would have been entitled to
receive:
Provided, however, That when there is but one dependent
parent surviving, that parent
shall be is entitled to receive
during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
For the purposes of this section, the term "salary" does not
include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who
shall be is discharged by order of the
Superintendent or
shall otherwise
terminate terminates employment
with the
division State Police, shall, at the written request of
the member to the Retirement Board,
be is entitled to receive from
the
retirement Fund a sum equal to the aggregate of the principal
amount of moneys deducted from his or her salary and paid into the
Death, Disability and Retirement Fund plus four percent interest
compounded thereon calculated annually as provided and required by
this article.
(b) Any member who has ten or more years of service with the
division State Police and who withdraws his or her contributions
may thereafter be reenlisted as a member of the
division State
Police, but may not receive any prior service credit on account of
former service, unless following reenlistment the member
shall
redeposit deposits in the Fund established in article two-a of this
chapter 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. He or she shall become a member of the
retirement system established in article two-a of this chapter.
(c) Every member who completes ten years of service with the
division of public safety State Police is eligible, upon separation
of employment with the
division State Police, either to 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. Any member choosing to
receive the deferred annuity under this subsection is not eligible
to receive the annual annuity adjustment provided in section
twenty-seven-a of this article. When the Retirement Board retires
any member under any of the provisions of this section, the Board
shall, by order in writing, make an award directing that the member
is entitled to receive annually and that there shall be paid to the
member from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of the member while in
status of retirement one or the other of two amounts, whichever is
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the
division of public safety State Police;
or
(2) The sum of six thousand dollars.
The annuity
shall be is payable during the lifetime of the
member. 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
such 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 this monthly
benefit amount shall be calculated to be of equal actuarial value
to the life annuity the member could otherwise have chosen.
NOTE: The purpose of this bill is to enact comprehensive
changes to the West Virginia State Police Death, Disability and
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 such as updating the name of
the West Virginia State Police.
The bill 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 the employment is not inconsistent with the
partial disability, but may not otherwise be employed in a law-
enforcement capacity. The bill requires the Board to 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 the
Superintendent to petition the Board for member's disability when
he or she considers 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.
§§§15-2-25b, 15-2-31a and 15-2-31b are new; therefore
strike-throughs and underlining have been omitted.