COMMITTEE SUBSTITUTE
FOR
H. B. 2717
(By Delegates Stalnaker, Amores, Craig and Spencer )
(Originating in the Committee on Finance)
[February 22, 2007]
A BILL to amend and reenact §5-10A-2 of the Code of West Virginia,
1931, as amended; to amend and reenact §5-10D-1 of said code;
and to amend said code by adding thereto a new article,
designated §16-5V-1, §16-5V-2, §16-5V-3, §16-5V-4, §16-5V-5,
§16-5V-6, §16-5V-7, §16-5V-8, §16-5V-9, §16-5V-10, §16-5V-11,
§16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a, §16-5V-15,
§16-5V-16, §16-5V-17, §16-5V-18, §16-5V-19, §16-5V-20,
§16-5V-21, §16-5V-22, §16-5V-23, §16-5V-24, §16-5V-25,
§16-5V-26, §16-5V-27, §16-5V-28, §16-5V-29, §16-5V-30,
§16-5V-31, §16-5V-32, §16-5V-33 and §16-5V-34, all relating to
the Consolidated Public Retirement Board; providing that the
board administer the Emergency Medical Services Retirement
System; establishing the Emergency Medical Services Retirement
System; setting forth definitions including application of
honorable service condition to plan participants; providing
effective dates and voting requirement; establishing federal
qualification requirements; providing for liberal construction; providing that plan is not a substitute for
social security; providing for and setting membership
standards; setting forth required contributions from members
and employers; creating fund and providing for investments;
providing for transfer from Public Employees Retirement
System; setting time limits; setting forth notice
requirements; providing for the commencement of benefits,
federal law maximum benefit limitations, minimum required
distributions and direct rollovers; providing for retirement
credited through member's use of accrued annual or sick leave;
providing for retirement benefits; setting forth annuity
options; providing for refunds in certain circumstances;
providing for deferred retirement; providing for forfeitures
of benefits; providing awards and benefits for duty-related
disability and for other causes; requiring physical
examinations; establishing criteria for termination of
disability; providing for prior disability; providing awards
and benefits to surviving spouse and additional death benefits
and scholarships for dependent children; providing for burial
benefit; prohibiting double death benefits; establishing
exemption from taxation, garnishment and other process;
authorizing certain deductions; establishing the effect of
qualified domestic relation orders; prohibiting fraud;
establishing criminal penalties; requiring repayment in
certain circumstances; providing for treatment of prior
military service; establishing effective date of the system; providing voluntary employer participation; establishing
starting date for benefits; limiting county liability; and
providing for no forfeiture of benefits if system terminates."
Be it enacted by the Legislature of West Virginia:
That §5-10A-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §5-10D-1 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
article, designated §16-5V-1, §16-5V-2, §16-5V-3, §16-5V-4,
§16-5V-5, §16-5V-6, §16-5V-7, §16-5V-8, §16-5V-9, §16-5V-10,
§16-5V-11, §16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a, §16-5V-15,
§16-5V-16, §16-5V-17, §16-5V-18, §16-5V-19, §16-5V-20, §16-5V-21,
§16-5V-22, §16-5V-23, §16-5V-24, §16-5V-25, §16-5V-26, §16-5V-27,
§16-5V-28, §16-5V-29, §16-5V-30, §16-5V-31, §16-5V-32, §16-5V-33
and §16-5V-34, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
As used in this article:
(a) "Retirement plan" or "plan" means the Public Employees
Retirement Act, pursuant to article ten, chapter five of this code;
each municipal employees retirement plan, pursuant to article
twenty-two, chapter eight of this code; each policemen's and firemen's pension and relief fund, pursuant to article twenty-two,
chapter eight of this code; the West Virginia State Police Death,
Disability and Retirement Fund, pursuant to article two, chapter
fifteen of this code; the West Virginia State Police Retirement
System, pursuant to article two-a, chapter fifteen of this code;
the State Teachers Retirement System, pursuant to article seven-a,
chapter eighteen of this code; the Teachers' Defined Contribution
Retirement System, pursuant to article seven-b, chapter eighteen of
this code; the Deputy Sheriff Retirement System, pursuant to
article fourteen-d, chapter seven of this code; supplemental and
additional retirement plans, pursuant to section four-a, article
twenty-three, chapter eighteen of this code; the Judges' Retirement
System, pursuant to article nine, chapter fifty-one of this code;
the Emergency Medical Services Retirement System established in
article five-v, chapter sixteen of this code; and any other plan
established pursuant to this code for the payment of pension,
annuity, disability or other benefits to any person by reason of
his or her service as an officer or employee of this state or of
any political subdivision, agency or instrumentality thereof,
whenever the plan is supported in whole or in part by public funds.
(b) "Beneficiary" means any person eligible for or receiving
benefits on account of the service for a public employer by a
participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other
benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective date of this article in any federal or state court of record
whether following a plea of guilty, not guilty or nolo contendere,
and whether or not the person convicted was serving as an officer
or employee of a public employer at the time of the conviction.
(e) "Less than honorable service" means:
(1) Impeachment and conviction of a participant under the
provisions of section nine, article four of the Constitution of
West Virginia, except for a misdemeanor;
(2) Conviction of a participant of a felony for conduct
related to his or her office or employment which he or she
committed while holding the office or during the employment; or
(3) Conduct of a participant which constitutes all of the
elements of a crime described in either of the foregoing
subdivisions (1) or (2) but for which the participant was not
convicted because:
(i) Having been indicted or having been charged in an
information for the crime, he or she made a plea bargaining
agreement pursuant to which he or she pleaded guilty to or nolo
contendere to a lesser crime:
Provided, That the lesser crime is
a felony containing all the elements described in subdivisions (1)
or (2) of this subsection; or
(ii) Having been indicted or having been charged in an
information for the crime, he or she was granted immunity from
prosecution for the crime.
(f) "Participant" means any person eligible for or receiving
any benefit under a retirement plan on account of his or her service as an officer or employee for a public employer.
(g) "Public employer" means the State of West Virginia and any
political subdivision, agency, or instrumentality thereof for which
there is established a retirement plan.
(h) "Supervisory board" or "Board" means the Consolidated
Public Retirement Board; the board of trustees of any municipal
retirement fund; the board of trustees of any policemen's or
firemen's retirement plan; the governing board of any supplemental
retirement plan instituted pursuant to authority granted by section
four-a, article twenty-three, chapter eighteen of this code, and
any other board, commission or public body having the duty to
supervise and operate any retirement plan.
ARTICLE 10D. Consolidated Public Retirement Board.
§5-10D-1. Consolidated Public Retirement Board continued; members;
vacancies; investment of plan funds.
(a) The Consolidated Public Retirement Board is continued to
administer all public retirement plans in this state. It shall
administer the Public Employees Retirement System established in
article ten of this chapter; the Teachers Retirement System
established in article seven-a, chapter eighteen of this code; the
Teachers Defined Contribution Retirement System created by article
seven-b of said chapter; the West Virginia State Police Death,
Disability and Retirement Fund created by article two, chapter
fifteen of this code; the West Virginia State Police Retirement
System created by article two-a of said chapter; the Deputy Sheriff Death, Disability and Retirement Fund created by article
fourteen-d, chapter seven of this code;
and the Judges' Retirement
System created under article nine, chapter fifty-one of this code;
and the Emergency Medical Services Retirement System established in
article five-v, chapter sixteen of this code.
(b) The membership of the Consolidated Public Retirement Board
consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Secretary of the Department of Administration or his
or her designee;
(5) Four residents of the state, who are not members,
retirants or beneficiaries of any of the public retirement systems,
to be appointed by the Governor, with the advice and consent of the
Senate; and
(6) A member, annuitant or retirant of the Public Employees
Retirement System who is or was a state employee; a member,
annuitant or retirant of the Public Employees Retirement System who
is not or was not a state employee; a member, annuitant or retirant
of the Teachers Retirement System; a member, annuitant or retirant
of the West Virginia State Police Death, Disability and Retirement
Fund; a member, annuitant or retirant of the Deputy Sheriff Death,
Disability and Retirement Fund;
and a member, annuitant or retirant
of the Teachers Defined Contribution Retirement System
; and a
member, annuitant or retirant of the Emergency Medical Services Retirement System, all to be appointed by the Governor, with the
advice and consent of the Senate.
(c) The appointed members of the board
shall serve five-year
terms. A member appointed pursuant to subdivision (6), subsection
(b) of this section ceases to be a member of the board if he or she
ceases to be a member of the represented system. If a vacancy
occurs in the appointed membership, the Governor, within sixty
days, shall fill the vacancy by appointment for the unexpired term.
No more than five appointees may be of the same political party.
(d) The Consolidated Public Retirement Board has all the
powers, duties, responsibilities and liabilities of the Public
Employees Retirement System established pursuant to article ten of
this chapter; the Teachers Retirement System established pursuant
to article seven-a, chapter eighteen of this code; the Teachers
Defined Contribution System established pursuant to article seven-b
of said chapter; the West Virginia State Police Death, Disability
and Retirement Fund created pursuant to article two, chapter
fifteen of this code; the West Virginia State Police Retirement
System created by article two-a of said chapter; the Deputy Sheriff
Death, Disability and Retirement Fund created pursuant to article
fourteen-d, chapter seven of this code;
and the Judges' Retirement
System created pursuant to article nine, chapter fifty-one of this
code
; and the Emergency Medical Services Retirement System
established in article five-v, chapter sixteen of this code and
their appropriate governing boards.
(e) The Consolidated Public Retirement Board may propose rules for legislative approval, in accordance with article three, chapter
twenty-nine-a of this code, necessary to effectuate its powers,
duties and responsibilities:
Provided, That the board may adopt
any or all of the rules, previously promulgated, of a retirement
system which it administers.
(f)(1) The Consolidated Public Retirement Board shall continue
to transfer all funds received for the benefit of the retirement
systems within the consolidated pension plan as defined in section
three-c, article six-b, chapter forty-four of this code, including,
but not limited to, all employer and employee contributions, to the
West Virginia Investment Management Board:
Provided, That the
employer and employee contributions of the Teachers Defined
Contribution System, established in section three, article seven-b,
chapter eighteen of this code, and voluntary deferred compensation
funds invested by the West Virginia Consolidated Public Retirement
Board pursuant to section five, article ten-b of this chapter may
not be transferred to the West Virginia Investment Management
Board.
(2) The board may recover from a participating employer that
fails to pay any amount due a retirement system in a timely manner
the contribution due and an additional amount not to exceed
interest or other earnings lost as a result of the untimely
payment, or a reasonable minimum fee, whichever is greater, as
provided by legislative rule promulgated pursuant to the provisions
of article three, chapter twenty-nine-a of this code. Any amounts
recovered shall be administered in the same manner in which the amount due is required to be administered.
(g) Notwithstanding any provision of this code or any
legislative rule to the contrary, all assets of the public
retirement plans set forth in subsection (a) of this section shall
be held in trust. The Consolidated Public Retirement Board is a
trustee for all public retirement plans, except with regard to the
investment of funds:
Provided, That the Consolidated Public
Retirement Board is a trustee with regard to the investments of the
Teachers' Defined Contribution System
, the voluntary deferred
compensation funds invested pursuant to section five, article ten-b
of this chapter and any other assets of the public retirement plans
administered by the Consolidated Public Retirement Board as set
forth in subsection (a) of this section for which no trustee has
been expressly designated in this code.
(h) The board may employ the West Virginia Investment
Management Board to provide investment management consulting
services for the investment of funds in the Teachers' Defined
Contribution System.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5V.á EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§16-5V-1. Title.
This article is known and may be cited as the "West Virginia
Emergency Medical Services Retirement System Act."
§16-5V-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and
six-tenths percent per year of the member's final average salary
for the first twenty years of credited service. Additionally, two
percent per year for twenty-one through twenty-five years and one
percent for twenty-six through thirty years will be credited with
a maximum benefit of sixty-seven percent. A member's accrued
benefit may not exceed the limits of Section 415 of the Internal
Revenue Code and is subject to the provisions of section twelve of
this article.
(1) The board may upon the recommendation of the board
actuary increase the employees' contribution rate to ten and
five-tenths percent should the funding of the plan not reach
seventy percent funded by the first day of July, two thousand
twelve. The board shall decrease the contribution rate to eight
and one-half percent once the plan funding reaches the seventy
percent support objective as of any later actuarial valuation date.
(2) Upon reaching the seventy-five percent actuarial funded
level, as of an actuarial valuation date, the board shall increase
the two and six-tenths percent to two and three-quarter percent for
the first twenty years of credited service. The maximum benefit
will also be increased from sixty-seven percent to seventy percent.
(b) "Accumulated contributions" means the sum of all
retirement contributions deducted from the compensation of a
member, or paid on his or her behalf as a result of covered
employment, together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with
any branch of the armed forces of the United States, including
service with the national guard or reserve military forces when the
member has been called to active full-time duty and has received no
compensation during the period of that duty from any board or
employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of the mortality table and interest rates
as set and adopted by the board in accordance with the provisions
of this article.
(e) "Annual compensation" means the wages paid to the member
during covered employment within the meaning of Section 3401(a) of
the Internal Revenue Code, but determined without regard to any
rules that limit the remuneration included in wages based upon the
nature or location of employment or services performed during the
plan year plus amounts excluded under Section 414(h)(2) of the
Internal Revenue Code and less reimbursements or other expense
allowances, cash or noncash fringe benefits or both, deferred
compensation and welfare benefits. Annual compensation for
determining benefits during any determination period may not exceed
one hundred thousand dollars as adjusted for cost-of-living in
accordance with Section 401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the month
for which an annuity is payable after submission of a retirement
application.á For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement"
means the first day of the month following or coincident with the
latter of the last day the member worked in covered employment or
the member's normal retirement age and after completing proper
written application for such "retirement" on an application
supplied by the board.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the
meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an
emergency medical technician, emergency medical technician/
paramedic or emergency medical services/registered nurse and the
active performance of the duties required of emergency medical
services officers; or (2) the period of time which active duties
are not performed but disability benefits are received under this
article; or (3) concurrent employment by an emergency medical
services officer in a job or jobs in addition to his or her
employment as an emergency medical services officer where such
secondary employment requires the emergency medical services
officer to be a member of another retirement system which is
administered by the Consolidated Public Retirement Board pursuant
to this code: Provided, That the emergency medical services
officer contributes to the fund created in this article the amount
specified as the member's contribution in section eight of this
article.
(k) "Credited service," means the sum of a member's years of service, active military duty, disability service and accrued
annual and sick leave service.
(l) "Emergency medical services officer" means an individual
employed by the State, county or other political subdivision as a
medical professional that is qualified to respond to medical
emergencies, aids the sick and injured and arranges or transports
to medical facilities, as defined by the West Virginia Office of
Emergency Medical Services. This definition is construed to
include employed ambulance providers and other services such as law
enforcement, rescue, or fire department personnel who primarily
perform these functions and are not provided any other credited
service benefits or retirement plans. These persons may hold the
rank of emergency medical technician/basic, emergency medical
technician/paramedic, emergency medical services/registered nurse,
or others as defined by the West Virginia Office of Emergency
Medical Services and the Consolidated Public Retirement Board.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living
with the member while the member was an adopting parent during any
period of probation; or
(D) A stepchild of the member residing in the member's
household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited
college or university;
(B) Who was claimed as a dependent by the member for federal
income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in
paragraph (A), (B) or (C), subdivision (1) of this subsection.
(n) "Dependent parent" means the father or mother of the
member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member,
expressed in whole years, fractions thereof or both, equal to one
half of the whole years, fractions thereof, or both, during which
time a member receives disability benefits under this article.
(p) "Effective date" means the first day of January, two
thousand eight.
(q) "Final average salary" means the average of the highest
annual compensation received for covered employment by the member
during any five consecutive plan years within the member's last ten
years of service while employed, prior to any disability payment.
If the member did not have annual compensation for the five full
plan years preceding the member's attainment of normal retirement
age and during that period the member received disability benefits
under this article then "final average salary" means the average of
the monthly salary determined paid to the member during that period
as determined under section twenty-two of this article multiplied
by twelve. "Final average salary" does not include any lump sum payment for unused, accrued leave of any kind or character.
(r) "Fund" means the West Virginia Emergency Medical Services
Retirement Fund created by this article.
(s) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to
payment for covered employment during which time active duties are
performed. These hours shall be credited to the member for the
plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to
payment for covered employment during a plan year but where no
duties are performed due to vacation, holiday, illness, incapacity
including disability, layoff, jury duty, military duty, leave of
absence or any combination thereof, and without regard to whether
the employment relationship has terminated. Hours under this
subdivision shall be calculated and credited pursuant to West
Virginia Division of Labor rules. A member will not be credited
with any hours of service for any period of time he or she is
receiving benefits under section nineteen or twenty of this
article; and
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission or political
subdivision, irrespective of mitigation of damages. The same hours
of service shall not be credited both under subdivision (1) or (2)
of this subsection and under this subdivision. Hours under this
paragraph shall be credited to the member for the plan year or
years to which the award or agreement pertains, rather than the plan year in which the award, agreement or payment is made.
(t) "Member" means a person first hired as an emergency
medical services officer by an employer which is a participating
public employer of the Public Employees Retirement System or the
Emergency Medical Services Retirement System after the effective
date of this article, as defined in subsection (p) of this section,
or an emergency medical services officer of an employer which is a
participating public employer of the Public Employees Retirement
System first hired prior to the effective date and who elects to
become a member pursuant to this article. A member shall remain a
member until the benefits to which he or she is entitled under this
article are paid or forfeited.
(u) "Monthly salary" means the W-2 reportable compensation
received by a member during the month.
(v) "Normal form" means a monthly annuity which is one twelfth
of the amount of the member's accrued benefit which is payable for
the member's life. If the member dies before the sum of the
payments he or she receives equals his or her accumulated
contributions on the annuity starting date, the named beneficiary
shall receive in one lump sum the difference between the
accumulated contributions at the annuity starting date and the
total of the retirement income payments made to the member.
(w) "Normal retirement age" means the first to occur of the
following:
(1) Attainment of age fifty years and the completion of twenty
or more years of regular contributory service, excluding active military duty, disability service and accrued annual and sick leave
service.
(2) While still in covered employment, attainment of at least
age fifty years and when the sum of current age plus regular
contributory years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least
age sixty years and completion of ten years of regular contributory
service; or
(4) Attainment of age sixty-two years and completion of five
or more years of regular contributory service.
(x) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by West
Virginia Code.
(y) "Plan" means the West Virginia Emergency Medical Services
Retirement System established by this article.
(z) "Plan year" means the twelve-month period commencing on
the first day of January of any designated year and ending the
following thirty-first day of December.
(aa) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board adopts in accordance
with the provisions of this article.
(bb) "Retirement income payments" means the monthly retirement
income payments payable under the plan.
(cc) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(dd) "Surviving spouse" means the person to whom the member was legally married at the time of the member's death and who
survived the member.
(ee) "Totally disabled" means a member's inability to engage
in substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to
result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve months.
For purposes of this subsection:
(1) A member is totally disabled only if his or her physical
or mental impairment or impairments is so severe that he or she is
not only unable to perform his or her previous work as an emergency
medical services officer 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. For purposes of this
article, substantial gainful employment is the same definition as
used by the United States Social Security Administration.
(2) "Physical or mental impairment" is an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques. The board may require submission
of a member's annual tax return for purposes of monitoring the
earnings limitation
(ff) "Year of service" means a member shall, except in his or her first and last years of covered employment, be credited with
years of service credit based upon the hours of service performed
as covered employment and credited to the member during the plan
year based upon the following schedule:
Hours of Service Year of Service Credited