ENROLLED
Senate Bill No. 544
(By Senators Plymale, Prezioso, Fanning, Walker, Jackson, Sprouse
and Kimble)
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[Passed April 12, 1997; in effect from passage.]
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AN ACT to amend and reenact sections two, fourteen, seventeen and
eighteen, article ten, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating generally to the public employees retirement
system; removing mental health centers from the public
employees retirement system except for the purpose of
continuing participation by current members; giving current
members optional withdrawal without losing service credit;
requiring mental health centers now participating in the
public employees retirement system to provide private pension
plans for current employees at their option and for future
employees within a time certain; requiring mental health
centers to provide to current members notice of their option
to withdraw including comparative actuarial projections of
individual accounts; clarifying calculation of retirement
service credit for legislative employees; and purchase of retroactive service credit by legislative employees.
Be it enacted by the Legislature of West Virginia:
That sections two, fourteen, seventeen and eighteen, article
ten, chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia
public employees retirement system created and established by this
article;
(3) "Board of trustees" or "board" means the board of trustees
of the West Virginia public employees retirement system;
(4) "Political subdivision" means the state of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; any public corporation charged by law
with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or
towns:
Provided, That any mental health agency participating in the
public employees retirement system before the first day of July,
one thousand nine hundred ninety-seven, is considered a political
subdivision solely for the purpose of permitting those employees
who are members of the public employees retirement system to remain
members and continue to participate in the retirement system at
their option after the first day of July, one thousand nine hundred
ninety-seven;
(5) "Participating public employer" means the state of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
supreme court of appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia public employees retirement system;
(6) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel employed by the West Virginia national guard whose compensation, in
whole or in part, is paid by the federal government:
Provided,
That members of the state Legislature, the clerk of the House of
Delegates, the clerk of the state Senate, employees of the state
Legislature whose term of employment is otherwise classified as
temporary and who are employed to perform services required by the
Legislature for its regular sessions or during the interim between
regular sessions and who have been or are employed during regular
sessions or during the interim between regular sessions in seven
consecutive calendar years, as certified by the clerk of the house
in which the employee served, members of the legislative body of
any political subdivision and judges of the state court of claims
are considered to be employees, anything contained in this article
to the contrary notwithstanding. In any case of doubt as to who is
an employee within the meaning of this article the board of
trustees shall decide the question;
(7) "Member" means any person who is included in the
membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity
payable by the retirement system;
(9) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(10) "Service" means personal service rendered to a participating public employer by an employee, as defined in this
article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article. This revised
definition is retroactive and applicable to the first day of April,
one thousand nine hundred eighty-eight, and thereafter;
(13) "Credited service" means the sum of a member's prior
service credit and contributing service credit standing to his or
her credit as provided in this article;
(14) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by him
or her to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
his or her remuneration which is not paid in money;
(15) "Final average salary" means either: (a) The average of
the highest annual compensation received by a member (including a
member of the Legislature who participates in the retirement system
in the year one thousand nine hundred seventy-one or thereafter)
during any period of three consecutive years of his credited service contained within his or her ten years of credited service
immediately preceding the date his or her employment with a
participating public employer last terminated; or (b) if he or she
has less than five years of credited service, the average of the
annual rate of compensation received by him or her during his or
her total years of credited service; and in determining the annual
compensation, under either (a) or (b) of this subdivision, of a
member of the Legislature who participates in the retirement system
as a member of the Legislature in the year one thousand nine
hundred seventy-one or in any year thereafter, his or her actual
legislative compensation (the total of all compensation paid under
sections two, three, four and five, article two-a, chapter four of
this code) in the year one thousand nine hundred seventy-one or in
any year thereafter, plus any other compensation he or she receives
in any such year from any other participating public employer
including the state of West Virginia, without any multiple in
excess of one times his or her actual legislative compensation and
other compensation, shall be used:
Provided, That "final average
salary" for any former member of the Legislature or for any member
of the Legislature in the year one thousand nine hundred seventy- one who, in either event, was a member of the Legislature on the
thirtieth day of November, one thousand nine hundred sixty-eight,
or the thirtieth day of November, one thousand nine hundred
sixty-nine, or the thirtieth day of November, one thousand nine hundred seventy, or on the thirtieth day of November in any one or
more of those three years, and who participated in the retirement
system as a member of the Legislature in any one or more of those
years means: (i) Either (notwithstanding the provisions of this
subdivision preceding this proviso) one thousand five hundred
dollars multiplied by eight, plus the highest other compensation
the former member or member received in any one of the three years
from any other participating public employer including the state of
West Virginia; or (ii) "final average salary" determined in
accordance with (a) or (b) of this subdivision, whichever
computation shall produce the higher final average salary (and in
determining the annual compensation under (ii) of this proviso, the
legislative compensation of the former member shall be computed on
the basis of one thousand five hundred dollars multiplied by eight,
and the legislative compensation of the member shall be computed on
the basis set forth in the provisions of this subdivision
immediately preceding this proviso or on the basis of one thousand
five hundred dollars multiplied by eight, whichever computation as
to the member produces the higher annual compensation);
(16) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(17) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts from time to time;
(18) "Annuity" means an annual amount payable by the
retirement system throughout the life of a person. All annuities
shall be paid in equal monthly installments, using the upper cent
for any fraction of a cent;
(19) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of such mortality and other
tables of experience, and regular interest, as the board of
trustees adopts from time to time;
(20) "Retirement" means a member's withdrawal from the employ
of a participating public employer with an annuity payable by the
retirement system; and
(21) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of such mortality table and regular
interest as the board of trustees adopts from time to time.
§5-10-14. Service credit.
(a) The board of trustees shall credit each member with the
prior service and contributing service to which he or she is
entitled based upon such rules as the board of trustees shall from
time to time adopt and based upon the following:
(1) Ten or more days of service rendered by a member in any
calendar month shall be credited as a month of service:
Provided,
That for employees of the state Legislature whose term of employment is otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim between regular sessions and
who have been or are so employed during regular sessions or during
the interim between regular sessions in seven consecutive calendar
years, service credit of one month shall be awarded for all or any
part of each calendar month encompassed within a regular
legislative session, notwithstanding that the actual number of days
served in any one month of the regular session is less than ten
days, and service credit of one month shall be awarded for each ten
days served during the interim between regular sessions, which
interim days shall be cumulatively calculated so that any ten days,
regardless of calendar month or year, shall be calculated toward
any award of one month of service credit;
(2) Ten or more months of service rendered in any calendar
year shall be credited as a year of service;
(3) No more than one year of service may be credited to any
member for all service rendered by him or her in any calendar year;
and
(4) Service may be credited to a member who was employed by a
political subdivision if his or her employment occurred within a
period of thirty years immediately preceding the date the political
subdivision became a participating public employer.
(b) The board of trustees shall grant service credit to
employees of boards of health, the clerk of the House of Delegates and the clerk of the state Senate, or to any former and present
member of the state teachers retirement system who have been
contributing members for more than three years, for service
previously credited by the state teachers retirement system and
shall require the transfer of the member's contributions to the
system and shall also require a deposit, with interest, of any
withdrawals of contributions any time prior to the member's
retirement. Repayment of withdrawals shall be as directed by the
board of trustees.
(c) Court reporters who are acting in an official capacity,
although paid by funds other than the county commission or state
auditor, may receive prior service credit for time served in that
capacity.
(d) Employees of the state Legislature whose term of
employment is otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim between regular sessions may
receive service credit for the time served in that capacity in
accordance with the following. Employees of the state Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature
for its regular sessions or during the interim between regular
sessions and who have been or are employed during regular sessions
or during the interim between regular sessions in seven consecutive
calendar years, as certified by the clerk of the house in which the employee served, shall receive service credit of six months for
each regular session served as certified by the clerk of the house
in which the employee served, and shall receive service credit of
one month for each ten days served during the interim between
regular sessions, which interim days shall be cumulatively
calculated so that any ten days, regardless of calendar month or
year, shall be calculated toward any award of one month of service
credit. Service credit awarded for legislative employment pursuant
to this subsection shall be used for the purpose of calculating
that member's retirement annuity only, pursuant to section twenty- two of this article, and notwithstanding any other provision of
this section. Service credit awarded for legislative service
pursuant to this subsection shall not be used to determine when an
employment period begins or ends, or to determine when the period
of eligibility or filing for retirement begins to run.
Certification of employment for a complete legislative session and
for days of interim sessions shall be determined by the clerk of
the house in which the employee served, based upon employment
records. Service of fifty-five days of a regular session
constitutes a presumption of service for a complete legislative
session.
Any employee may purchase retroactive service credit for
periods of employment in which contributions were not deducted from
the employee's pay. In the purchase of service credit for
employment prior to the year one thousand nine hundred eighty-nine in any department, including the Legislature, which operated from
the general revenue fund and which was not expressly excluded from
budget appropriations in which blanket appropriations were made for
the state's share of public employees' retirement coverage in the
years prior to the year one thousand nine hundred eighty-nine, the
employee shall pay the employee's share. Other employees shall pay
the state's share and the employee's share to purchase retroactive
service credit. Where an employee purchases service credit for
employment which occurred after the year one thousand nine hundred
eighty-eight, that employee shall pay for the employee's share and
the employer shall pay its share for the purchase of retroactive
service credit:
Provided, That no legislative employee may be
required to pay any interest or penalty upon the purchase of
retroactive service credit in accordance with the provisions of
this section where the employee was not eligible to become a member
during the years he or she is purchasing retroactive credit for or
had the employee attempted to contribute to the system during the
years he or she is purchasing retroactive service credit for and
such contributions would have been refused by the board:
Provided,
however, That a legislative employee purchasing retroactive credit
under this section does so within twenty-four months of becoming a
member of the system or no later than the last day of December, one
thousand nine hundred ninety-nine, whichever occurs last:
Provided
further, That once a legislative employee becomes a member of the retirement system, he or she may purchase retroactive service
credit for any time he or she was employed by the Legislature and
did not receive service credit.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the
following persons:
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who
continue in the employ of the participating public employer on and
after that date shall become members of the retirement system; and
all persons who become employees of a participating public employer
on or after that date shall thereupon become members of the system;
except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the retirement system shall not include
any person who is a member of, or who has been retired by, the
state teachers retirement system, the judges retirement system, the
retirement system of the division of public safety, or any
municipal retirement system for either, or both, policemen or
firemen; and the bureau of employment programs, by the commissioner
of the bureau, may elect whether its employees will accept coverage
under this article or be covered under the authorization of a
separate enactment:
Provided, That the exclusions of membership
shall not apply to any member of the state Legislature, the clerk of the House of Delegates, the clerk of the state Senate or to any
member of the legislative body of any political subdivision
provided he or she once becomes a contributing member of the
retirement system:
Provided, however, That any retired member of
the retirement system of the division of public safety, and any
retired member of any municipal retirement system for either, or
both, policemen or firemen may on and after the effective date of
this section become a member of the retirement system as provided
in this article, without receiving credit for prior service as a
municipal policeman or fireman or as a member of the division of
public safety:
Provided further, That the membership of the
retirement system does not include any person who becomes employed
by the Prestera center for mental health services, valley
comprehensive mental health center, Westbrook health services or
eastern panhandle mental health center on or after the first day of
July, one thousand nine hundred ninety-seven.
(c) Any member of the state Legislature, the clerk of the
House of Delegates, the clerk of the state Senate and any employee
of the state Legislature whose employment is otherwise classified
as temporary and who is employed to perform services required by
the Legislature for its regular sessions or during the interim
between regular sessions and who has been or is so employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the clerk of the house in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he or she notifies the retirement system
in writing of his or her intention to be a member of the system and
files a membership enrollment form as prescribed by the board of
trustees, and each person, upon filing his or her written notice to
participate in the retirement system, shall by that act authorize
the clerk of the House of Delegates or the clerk of the state
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct the
member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after the deductions have been
made from the member's compensation, the deductions shall be
forwarded to the retirement system.
(d) If question arises regarding the membership status of any
employee, the board of trustees has the final power to decide the
question.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires or dies, he
or she ceases to be a member. When a member leaves the employ of
a participating public employer for any other reason, he or she
ceases to be a member and forfeits service credited to him or her
at that time. If he or she becomes reemployed by a participating
public employer he or she shall be reinstated as a member of the retirement system and his or her credited service last forfeited by
him or her shall be restored to his or her credit:
Provided, That
he or she must be reemployed for a period of one year or longer to
have the service restored:
Provided, however, That he or she
returns to the members' deposit fund the amount, if any, he or she
withdrew from the fund, together with regular interest on the
withdrawn amount from the date of withdrawal to the date of
repayment, and that the repayment begins within two years of the
return to employment and that the full amount is repaid within five
years of the return to employment.
(b) Effective on the first day of July, one thousand nine
hundred ninety-seven, and continuing through the first day of July,
one thousand nine hundred ninety-eight, any employee of the
Prestera center for mental health services, valley comprehensive
mental health center, Westbrook health services and eastern
panhandle mental health center who is a member of the retirement
system may elect to withdraw from membership without forfeiting
service credited to him or her.
(c) The Prestera center for mental health services, valley
comprehensive mental health center, Westbrook health services and
eastern panhandle mental health center, and their successors in
interest, shall provide for their employees a pension plan in lieu
of the public employees retirement system on or before the first
day of July, one thousand nine hundred ninety-seven, and continuing thereafter during the existence of the named mental health centers
and their successors in interest.
(d) The administrative bodies of the Prestera center for
mental health services, valley comprehensive mental health center,
Westbrook health services and eastern panhandle mental health
center shall, on or before the first day of May, one thousand nine
hundred ninety-seven, give written notice to each employee who is
a member of the public employees retirement system of the option to
withdraw from or remain in the system. The notice shall include a
copy of this section and a statement explaining the member's
options regarding membership. The notice shall include a statement
in plain language giving a full explanation and actuarial
projection figures in support of the explanation regarding the
individual member's current account balance, vested and nonvested,
and his or her projected return upon remaining in the public
employees retirement system until retirement, disability or death,
in comparison with the projected return upon withdrawing from the
public employees retirement system and joining a private pension
plan provided by the community mental health center and remaining
therein until retirement, disability or death. The administrative
bodies shall keep in their respective records a permanent record of
each employee's signature confirming receipt of the notice.