H. B. 4574
(By Delegate Spencer)
[Introduced February 14, 2008; referred to the
Committee on Pensions and Retirement then Finance.]
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 §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5,
§5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11,
§5-10E-12, §5-10E-13, §5-10E-14, §5-10E-15, §5-10E-16,
§5-10E-17, §5-10E-18, §5-10E-19, §5-10E-20, §5-10E-21,
§5-10E-22, §5-10E-23, §5-10E-24, §5-10E-25, §5-10E-26,
§5-10E-27, §5-10E-28, §5-10E-29, §5-10E-30, §5-10E-31,
§5-10E-32 and §5-10-33, all relating to the Consolidated
Public Retirement Board; providing that the board administer
the Division of Corrections Retirement System; establishing
the Division of Corrections 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; 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 §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4,
§5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10,
§5-10E-11, §5-10E-12, §5-10E-13, §5-10E-14, §5-10E-15, §5-10E-16,
§5-10E-17, §5-10E-18, §5-10E-19, §5-10E-20, §5-10E-21, §5-10E-22,
§5-10E-23, §5-10E-24, §5-10E-25, §5-10E-26, §5-10E-27, §5-10E-28,
§5-10E-29, §5-10E-30, §5-10E-31, §5-10E-32 and §5-10E-33, all to
read as follows:
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;
the West Virginia
Division of Corrections Retirement System established in article
ten-e, chapter five 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; the Judges' Retirement
System created under article nine, chapter fifty-one of this code;
and the Emergency Services Retirement System established in article
five-v, chapter sixteen of this code;
and the West Virginia
Division of Corrections Retirement System established in article
ten-e, chapter five 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; 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,
and a member, annuitant or retirant of the West Virginia
Division of Corrections 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; 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
the West Virginia Division of Corrections Retirement System 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 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.
ARTICLE 10E. WEST VIRGINIA DIVISION OF CORRECTIONS RETIREMENT
SYSTEM ACT.
§5-10E-1. Short title.
This article may be cited as the "West Virginia Division of
Corrections Retirement System Act."
§5-10E-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 per year 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 thirteen. 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 under
this article 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. 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) "Corrections officer" means either: (1) Employment as a
correction officer by the West Virginia Division of Corrections;
(2) employment as a correction officer by the West Virginia
Regional Jail and Correctional Facility Authority; or employment as
a correctional officer by the Division of Juvenile Services.
(j) "Covered employment" means either: (1) Employment as a
corrections officer and the active performance of the duties
required of correction officers; or (2) the period of time during
which active duties are not performed but disability benefits are
received medical services officer in a job or jobs in addition to
his or her employment as a correction officer where such secondary
employment requires the correction 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
correction 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) "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.
(m) "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.
(n) "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.
(o) "Effective date" means the first day of January, two thousand nine.
(p) "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-three 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.
(q)"Fund" means the West Virginia Division of Corrections
Retirement Fund created by this article.
(r) "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 twenty or twenty-one 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.
(s) "Member" means a person first hired as a correction
officer by an employer which is a participating public employer of
the Public Employees Retirement System or the Division of
Corrections Retirement System after the effective date of this
article, as defined in subsection (p) of this section, or a
correction 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.
(t) "Monthly salary" means the W-2 reportable compensation
received by a member during the month.
(u) "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.
(v) "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.
(w) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by West
Virginia Code.
(x) "Plan" means the West Virginia Division of Corrections
Retirement Plan established by this article.
(y) "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.
(z) "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.
(aa) "Retirement income payments" means the monthly retirement
income payments payable under the plan.
(bb) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(cc) "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.
(dd) "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 a correction
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.
(ee) "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
Less than 500 ...............................................0
500 to 999 .................................................. 1/3
1,000 to 1,499 .............................................. 2/3
1,500 or more ............................................... 1
During a member's first and last years of covered employment,
the member shall be credited with one twelfth of a year of service
for each month during the plan year in which the member is credited
with an hour of service. A member is not entitled to credit for
years of service for any time period during which he or she
received disability payments under section twenty or twenty-one of
this article. Except as specifically excluded, years of service
include covered employment prior to the effective date.
Years of service which are credited to a member prior to his
or her receipt of accumulated contributions upon termination of
employment pursuant to section nineteen of this article or section
thirty, article ten, chapter five of this code, shall be
disregarded for all purposes under this plan unless the member
repays the accumulated contributions with interest pursuant to
section nineteen of this article or had prior to the effective date
made the repayment pursuant to section eighteen, article ten,
chapter five of this code.
(ff) "Required beginning date" means the first day of April
of the calendar year following the later of: (1) The calendar year in which the member attains age seventy and one-half; or (2) the
calendar year in which he or she retires or otherwise separates
from covered employment; or (3) for members who are covered under
the Public Employees Retirement System, their service shall be
recognized upon transfer of asset from the Public Employees
Retirement System according to the provisions of section nine of
this article. Prior service for members not covered under the
Public Employees Retirement System shall be recognized only upon
repayment of amounts covered under the provisions of section six of
this article.
§5-10E-3. Meaning of terms.
Any term used in this article has the same meaning as when
used in a comparable context in the laws of the United States,
unless a different meaning is clearly required. Any reference in
this article to the Internal Revenue Code means the Internal
Revenue Code of 1986, as amended.
§5-1OE-4. Creation and administration of West Virginia Division of
Corrections Retirement System; specification of
actuarial assumptions.
There is hereby created the West Virginia Division of
Corrections Retirement System. The purpose of this system is to
provide for the orderly retirement of correction officers who
become superannuated because of age or permanent disability and to
provide certain survivor death benefits. The retirement system shall come into effect the first day of January, two thousand nine:
Provided, That at least seventy percent of all eligible correction
officers and at least eighty-five percent of the eligible
correction officers who are currently active members of the Public
Employees Retirement System elect to participate in this plan by
the thirty-first day of December, two thousand eight. If this
level of participation is not reached, then all of the provisions
of this article are void and of no force and effect. All business
of the system shall be transacted in the name of the West Virginia
Division of Corrections Retirement System. The board shall specify
and adopt all actuarial assumptions for the plan at its first
meeting of every calendar year or as soon thereafter as may be
practicable, which assumptions shall become part of the plan.
§5-10E-5. Article to be liberally construed; supplements federal
social security; federal qualification requirements.
(a) The provisions of this article shall be liberally
construed so as to provide a general retirement system for
correction officers eligible to retire under the provisions of this
plan. Nothing in this article may be construed to permit a county
to substitute this plan for federal social security now in force in
West Virginia.
(b) The board shall administer the plan in accordance with its
terms and may construe the terms and determine all questions
arising in connection with the administration, interpretation and application of the plan. The board may sue and be sued, contract
and be contracted with and conduct all the business of the system
in the name of the plan. The board may employ those persons it
considers necessary or desirable to administer the plan. The board
shall administer the plan for the exclusive benefit of the members
and their beneficiaries subject to the specific provisions of the
plan.
(c) The plan is intended to meet the federal qualification
requirements of Section 401(a) and related sections of the Internal
Revenue Code as applicable to governmental plans. Notwithstanding
any other provision of state law, the board shall administer the
plan to fulfill this intent for the exclusive benefit of the
members and their beneficiaries. Any provision of this article
referencing or relating to these federal qualification requirements
is effective as of the date required by federal law. The board may
propose rules for promulgation and amend or repeal conflicting
rules in accordance with the authority granted to the board
pursuant to section one, article ten-d of chapter five of this code
to assure compliance with the requirements of this section.
§5-10E-6. Members.
(a) Any correction officer employed in covered employment
after the effective date of this article shall be a member of this
retirement system and plan and upon such membership does not
qualify for membership in any other retirement system administered by the board, so long as he or she remains employed in covered
employment.
(b) Any correction officer employed in covered employment by
an employer which is currently a participating public employer of
the Public Employees Retirement System shall notify in writing both
his or her employer and the board of his or her desire to become a
member of the plan by the thirty-first day of December, two
thousand eight. Any correction officer who elects to become a
member of the plan ceases to be a member or have any credit for
covered employment in any other retirement system administered by
the board and shall continue to be ineligible for membership in any
other retirement system administered by the board so long as the
correction officer remains employed in covered employment by an
employer which is currently a participating public employer of the
Public Employees Retirement System in this plan: Provided, That
any correction officer who does not affirmatively elect to become
a member of the plan continues to be eligible for any other
retirement system as is from time to time offered to other
employees but is ineligible for this plan regardless of any
subsequent termination of employment and rehire.
(c) Any correction officer who was employed as a correction
officer prior to the effective date, but was not employed on the
effective date of this article, shall become a member upon rehire
as a correction officer. For purposes of this section, the member's years of service and credited service prior to the
effective date shall not be counted for any purposes under this
plan unless: (1) The correction officer has not received the
return of his or her accumulated contributions in the Public
Employees Retirement Fund System pursuant to section thirty,
article ten, chapter five of this code; or (2) the accumulated
contributions returned to the member from the Public Employees
Retirement System have been repaid pursuant to this article. If
the conditions of subdivision (1) or (2) of this subsection are
met, all years of the correction officer's covered employment shall
be counted as years of service for the purposes of this article.
Each transferring correction officer shall be given credited
service for the purposes of this article for all covered employment
transferred from the Public Employees Retirement System regardless
of whether the credited service (as that term is defined in section
two, article ten, chapter five of this code) was earned as a
correction officer. All service in the Public Employees Retirement
System accrued by a transferring correction officer shall be
transferred into the plan created by this article and the
transferring correction officer shall be given the same credit for
the purposes of this article for all covered service which is
transferred from the Public Employees Retirement System as that
transferring correction officer would have received from the Public
Employees Retirement System if the transfer had not occurred. In connection with each correction officer receiving credit for prior
employment provided in this subsection, a transfer from Public
Employees Retirement System to this plan shall be made pursuant to
the procedures described in this article.
(d) Once made, the election made under this section is
irrevocable. All correction officers employed by an employer which
is a participating public employer of the Public Employees
Retirement System after the effective date and correction officers
electing to become members as described in this section shall be
members as a condition of employment and shall make the
contributions required by this article.
(e) Notwithstanding any other provisions of this article, any
individual who is a leased employee is not eligible to participate
in the plan. For purposes of this plan, a "leased employee" means
any individual who performs services as an independent contractor
or pursuant to an agreement with an employee leasing organization
or similar organization. If a question arises regarding the status
of an individual as a leased employee, the board has final power to
decide the question.
§5-10E-7. Creation of fund; investments.
(a) There is hereby created the "West Virginia Division of
Corrections Retirement Fund" for the benefit of the members of the
retirement system created pursuant to this article and the
dependents of any deceased or retired member of the system.
(b) All moneys paid into and accumulated in the fund, except
amounts designated by the board for payment of benefits as provided
in this article, shall be held in trust and invested in the
consolidated pensions fund administered by the West Virginia
Investment Management Board as provided by law.
§5-10E-8. Members' contributions; employer contributions.
There shall be deducted from the monthly salary of each member
and paid into the fund an amount equal to eight and one-half
percent of his or her monthly salary. Any active member who has
concurrent employment in an additional job or jobs and such
additional employment requires the correction officer to be a
member of another retirement system which is administered by the
Consolidated Public Retirement Board pursuant to article ten-d,
chapter five of this code shall contribute to the fund the sum of
eight and one-half percent of his or her monthly salary earned as
a correction officer as well as the sum of eight and one-half
percent of his or her monthly salary earned from any additional
employment which additional employment requires the correction
officer to be a member of another retirement system which is
administered by the Consolidated Public Retirement Board pursuant
to article ten-d, chapter five of this code. An additional ten and
one-half percent of the monthly salary of each member shall be paid
to the fund by the concurrent employer by which the member is
employed. All required deposits shall be remitted to the board no later than fifteen days following the end of the calendar month for
which the deposits are required. If the board upon the
recommendation of the board actuary finds that the benefits
provided by this article can be actuarially funded with a lesser
contribution, then the board shall reduce the required member and
employer contributions proportionally.
§5-10E-9. Transfer from Public Employees Retirement System.
(a) The Consolidated Public Retirement Board shall, within one
hundred eighty days of the effective date of the transfer of a
correction officer from the Public Employees Retirement System to
the plan, transfer assets from the Public Employees Retirement
System Trust Fund into the West Virginia Division of Corrections
Retirement Fund.
(b) The amount of assets to be transferred for each
transferring correction officer shall be computed as of the first
day of January, two thousand nine, using the first day of July,
two thousand eight, actuarial valuation of the Public Employees
Retirement System, and updated with seven and one-half percent
annual interest to the date of the actual asset transfer. The
market value of the assets of the transferring correction officer
in the Public Employees Retirement System shall be determined as of
the end of the month preceding the actual transfer. To determine
the computation of the asset share to be transferred the board
shall:
(1) Compute the market value of the Public Employees
Retirement System assets as of the first day of July, two thousand
eight actuarial valuation date, under the actuarial valuation
approved by the board;
(2) Compute the actuarial accrued liabilities for all Public
Employees Retirement System retirees, beneficiaries, disabled
retirees and terminated inactive members as of the first day of
July, two thousand eight actuarial valuation date;
(3) Compute the market value of active member assets in the
Public Employees Retirement System as of the first day of July, two
thousand eight by reducing the assets value under subdivision (1)
by the inactive liabilities under subdivision (2) of this
subsection;
(4) Compute the actuarial accrued liability for all active
Public Employees Retirement System members as of the first day of
July, two thousand eight actuarial valuation date approved by the
board;
(5) Compute the funded percentage of the active members'
actuarial accrued liabilities under the Public Employees Retirement
System as of the first day of July, two thousand eight by dividing
the active members' market value of assets under subdivision (3) by
the active members' actuarial accrued liabilities under subdivision
(4) of this subsection;
(6) Compute the actuarial accrued liabilities under the Public Employees Retirement System as of the first day of July, two
thousand eight for active correction officers transferring to the
Division of Corrections Retirement System;
(7) Determine the assets to be transferred from the Public
Employees Retirement System to the Division of Corrections
Retirement System by multiplying the active members' funded
percentage determined under subdivision (5) of this subsection by
the transferring active members' actuarial accrued liabilities
under the Public Employees Retirement System under subdivision (6)
of this subsection and adjusting such asset transfer amount by
interest at seven and five-tenths percent for the period from the
calculation date of the first day of July, two thousand eight
through the first day of the month in which the asset transfer is
to be completed.
(c) Once a correction officer has elected to transfer from the
Public Employees Retirement System, transfer of that amount as
calculated in accordance with the provisions of subsection (b) of
this section by the Public Employees Retirement System shall
operate as a complete bar to any further liability to the Public
Employees Retirement System, and constitutes an agreement whereby
the transferring correction officer forever indemnifies and holds
harmless the Public Employees Retirement System from providing him
or her any form of retirement benefit whatsoever until such time as
that correction officer obtains other employment which would make him or her eligible to reenter the Public Employees Retirement
System with no credit whatsoever for the amounts transferred to the
Division of Corrections Retirement System.
(d) Eligible correction officers that transfer from plans
other than the Public Employees Retirement System shall have
service recognized under this plan through the purchase of the
service through payment by the member of sixty percent of the
actuarial accrued liabilities which would result if the service is
fully credited under the Division of Corrections Retirement System.
The purchase of the service must begin within twelve months of the
effective date and full payment must be made within sixty months by
either equal monthly or a one time lump sum payment.
§5-10E-10. Notice requirements.
(a) Each employer shall prepare a written notice to be
delivered to each correction officer employed prior to the first
day of July, two thousand eight. This notice shall clearly and
accurately explain the benefits, financial implications and
consequences to a correction officer of electing to participate in
the retirement plan created in this article, including the
consequences and financial implications in regard to the benefits
under the Public Employees Insurance Plan as set forth in this code
for those correction officers. This notice shall be distributed to
each correction officer and the employer shall obtain a signed
receipt from each correction officer acknowledging that the correction officer was provided a copy of the notice required in
this subsection. If a correction officer makes the election
provided in section six of this article, he or she shall be
considered to have made a voluntary, informed decision in regard to
the election to participate in the retirement system created in
this article.
(b) Nothing in this section may be construed to alter, affect
or change any of the rights and benefits of any correction officer
who has insurance coverage under article sixteen, chapter five of
this code as a result of being a spouse or dependant of a
participant who is the primary insured under article sixteen,
chapter five of this code.
(c) Nothing contained in this section may be construed to
affect or pertain to any life insurance coverage under article
sixteen, chapter five of this code.
§5-10E-11. Retirement; commencement of benefits.
(a) Except for duty disability retirement, no member may
retire before the first day of January, two thousand eleven.
(b) A member may retire and commence to receive retirement
income payments on the first day of the calendar month following
written application for his or her voluntary petition for
retirement coincident with or next following the later of the date
the member ceases employment, or the date the member attains early
or normal retirement age, in an amount as provided under this article: Provided, That retirement income payments under this plan
are subject to the provisions of this article. Upon receipt of the
petition, the board shall promptly provide the member with an
explanation of his or her optional forms of retirement benefits and
upon receipt of properly executed forms from the member, the board
shall process member's request for and commence payments as soon as
administratively feasible.
§5-10E-12. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the retirement system in compliance
with the limitations of Section 415 of the Internal Revenue Code
and regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this system shall exceed those limitations. The extent to
which any annuity or other benefit payable under this retirement
system shall be reduced as compared with the extent to which an
annuity, contributions or other benefits under any other defined
benefit plans or defined contribution plans required to be taken
into consideration under Section 415 of the Internal Revenue Code
shall be reduced, shall be determined by the board in a manner that
maximizes the aggregate benefits payable to the member. If the
reduction is under this retirement system, the board shall advise
affected members of any additional limitation on the annuities
required by this section.
§5-10E-13. Federal law minimum required distributions.
The requirements of this section apply to any distribution of
a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this plan. This section applies to plan
years beginning after the thirty-first day of December, one
thousand nine hundred eighty-six. Notwithstanding anything in the
plan to the contrary, the payment of benefits under this article
shall be determined and made in accordance with Section 401(a)(9)
of the Internal Revenue Code and its regulations. For this
purpose, the following provisions apply:
(a) The payment of benefits under the plan to any member shall
be distributed to him or her not later than the required beginning
date, or be distributed to him or her commencing not later than the
required beginning date, in accordance with regulations prescribed
under Section 401(a)(9) of the Internal Revenue Code, over the life
of the member or over the lives of the member and his or her
beneficiary or over a period not extending beyond the life
expectancy of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has
commenced pursuant to this section but before his or her entire
interest in the plan has been distributed, then the remaining
portion of that interest shall be distributed at least as rapidly
as under the method of distribution being used at the date of his
or her death.
(c) If a member dies before distribution to him or her has
commenced, then his or her entire interest in the plan shall be
distributed by the thirty-first day of December of the calendar
year containing the fifth anniversary of the member's death, except
as follows:
(1) If a member's interest is payable to a beneficiary,
distributions may be made over the life of that beneficiary or over
a period certain not greater than the life expectancy of the
beneficiary, commencing on or before the thirty-first day of
December of the calendar year immediately following the calendar
year in which the member died; or
(2) If the member's beneficiary is the surviving spouse, the
date distributions are required to begin shall be no later than the
later of:
(A) The thirty-first day of December of the calendar year in
which the member would have attained age seventy and one-half; or
(B) The earlier of: (i) The thirty-first day of December of
the calendar year following the calendar year in which the member
died; or (ii) the thirty-first day of December of the calendar year
following the calendar year in which the spouse died.
§5-10E-14. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nine hundred ninety-three.
Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this plan, a
distributee may elect, at the time and in the manner prescribed by
the board, to have any portion of an eligible rollover distribution
that is equal to at least five hundred dollars paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this section, the following definitions
apply:
(1) "Eligible rollover distribution" means any distribution of
all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include any
of the following: (A) Any distribution that is one of a series of
substantially equal periodic payments not less frequently than
annually made for the life or life expectancy of the distributee or
the joint lives or the joint life expectancies of the distributee
and the distributee's designated beneficiary, or for a specified
period of ten years or more; (B) any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Internal Revenue Code; (C) the portion of any distribution that is
not includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; (D) any hardship distribution described in Section
401(k) (2) (B) (i) (iv) of the Internal Revenue Code; and (E) any
other distribution or distributions reasonably expected to total
less than two hundred dollars during a year.
(2) "Eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in Section 408(b) of the
Internal Revenue Code, an annuity plan described in Section 403(a)
of the Internal Revenue Code or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution: Provided, That in
the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest
of the spouse or former spouse.
(4) "Direct rollover" means a payment by the plan to the
eligible retirement plan.
§5-10E-15. Rollovers and transfers to purchase service credit or
repay withdrawn contributions.
(a) This section applies to rollovers and transfers as
specified in this section made on or after the first day of
January, two thousand eight. Notwithstanding any provision of this article to the contrary that would otherwise prohibit or limit
rollovers and plan transfers to this system, the plan shall accept
the following rollovers and plan transfers on behalf of a member
solely for the purpose of purchasing permissive service credit, in
whole or in part, as otherwise provided in this article or for the
repayment of withdrawn or refunded contributions, in whole and in
part, with respect to a previous forfeiture of service credit as
otherwise provided in this article: (A) One or more rollovers
within the meaning of Section 408(d)(3) of the Internal Revenue
Code from an individual retirement account described in Section
408(a) of the Internal Revenue Code or from an individual
retirement annuity described in Section 408(b) of the Internal
Revenue Code; (B) one or more rollovers described in Section 402(c)
of the Internal Revenue Code from a retirement plan that is
qualified under Section 401(a) of the Internal Revenue Code or from
a plan described in Section 403(b) of the Internal Revenue Code;
(C) one or more rollovers described in Section 457(e)(16) of the
Internal Revenue Code from a governmental plan described in Section
457 of the Internal Revenue Code; or (D) direct trustee-to-trustee
transfers or rollovers from a plan that is qualified under Section
401(a) of the Internal Revenue Code, from a plan described in
Section 403(b) of the Internal Revenue Code or from a governmental
plan described in Section 457 of the Internal Revenue Code:
Provided, That any rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset
permitted by the board and only in accordance with such policies,
practices and procedures established by the board from time to
time. For purposes of this section, the following definitions
apply:
(1) "Permissive service credit" means service credit which is
permitted to be purchased under the terms of the retirement system
by voluntary contributions in an amount which does not exceed the
amount necessary to fund the benefit attributable to the period of
service for which the service credit is being purchased, all as
defined in Section 415(n)(3)(A) of the Internal Revenue Code.
(2) "Repayment of withdrawn or refunded contributions" means
the payment into the retirement system of the funds required
pursuant to this article for the reinstatement of service credit
previously forfeited on account of any refund or withdrawal of
contributions permitted in this article, as set forth in Section
415(k)(3) of the Internal Revenue Code.
(b) Nothing in this section may be construed as permitting
rollovers or transfers into this system or any other system
administered by the retirement board other than as specified in
this section and no rollover or transfer shall be accepted into the
system in an amount greater than the amount required for the
purchase of permissive service credit or repayment of withdrawn or
refunded contributions.
(c) Nothing in this section shall be construed as permitting
the purchase of service credit or repayment of withdrawn or
refunded contributions except as otherwise permitted in this
article.
§5-10E-16. Retirement credited service through member's use, as
option, of accrued annual or sick leave days.
Any member accruing annual leave or sick leave days may, after
the effective date of this section, elect to use the days at the
time of retirement to acquire additional credited service in this
retirement system: Provided, That the accrued annual or sick leave
may not be used to purchase health insurance under the Public
Employees Insurance Agency until the member reaches the age of
fifty-five. The days shall be applied on the basis of two
workdays' credit granted for each one day of accrued annual or sick
leave days, with each month of retirement service credit to equal
twenty workdays and with any remainder of ten workdays or more to
constitute a full month of additional credit and any remainder of
less than ten workdays to be dropped and not used, notwithstanding
any provisions of the code to the contrary. The credited service
shall be allowed and not considered to controvert the requirement
of no more than twelve months' credited service in any year's
period.
§5-10E-17. Retirement benefits.
This section provides for the adjustment of a member's accrued benefit to reflect the difference in age, in years and months,
between the member's annuity starting date and the date the member
attains normal retirement age. This age adjustment shall be made
based upon the normal form of benefit and shall be the actuarial
equivalent of the accrued benefit at the member's normal retirement
age. The member shall receive the age adjusted retirement income
in the normal form or in an actuarial equivalent amount in an
optional form as provided under this chapter. The first day of the
calendar month following the month of birth shall be used in lieu
of any birth date that does not fall on the first day of a calendar
month.
(a) Normal retirement. -- A member whose annuity starting date
is the date the member attains normal retirement age, is entitled
to his or her accrued benefit without adjustment for age at
commencement. To the extent that a member's starting date is later
than his or her normal retirement age, the amount of that member's
retirement income benefit shall be adjusted as provided in
subsection (c) of this section.
(b) Early retirement. -- A member who ceases covered
employment and has attained early retirement age while in covered
employment may elect in writing by completion of an application for
retirement required by and submitted to the board to receive
retirement income payments commencing on the first day of the month
coincident with or following the date the member ceases covered employment and submits the proper application to the board.
"Normal retirement age" for such a member is the first day of the
calendar month coincident with or next following the month in which
the member attains the age of fifty years. If the member's annuity
starting date is prior to the date the member attains normal
retirement age, his or her accrued benefit is reduced to the
actuarial equivalent benefit amount based on the years and months
by which his or her annuity starting date precedes the date he or
she attains normal retirement age. If the member's annuity
starting date is later than the date the member attains the age of
fifty years, the accrued benefit is adjusted as provided in
subsection (c) of this section.
(c) Late retirement. -- A member whose annuity starting date
is later than the date the member attains normal retirement age
shall receive retirement income payments in the normal form which
is the benefit to which he or she is entitled according to his or
her accrued benefit based on his or her final average salary and
credited service at the time of his or her actual retirement and
following the completion of an application for retirement as
required by the board.
(d) Retirement benefits shall be paid monthly in an amount
equal to one twelfth of the retirement income payments elected and
at those times established by the board. Notwithstanding any other
provision of the plan, a member who is married on the annuity starting date will receive his or her retirement income payments in
the form of a sixty-six and two-thirds percent joint and survivor
annuity with his or her spouse unless prior to the annuity starting
date the spouse waives the form of benefit.
§5-10E-18. Annuity options.
Prior to the effective date of retirement, but not after that
date, a member may elect to receive retirement income payments in
the normal form, or the actuarial equivalent of the normal form
from the following options:
(a) Option A -- Contingent joint and survivor annuity. -- A
life annuity payable during the joint lifetime of the member and
his or her beneficiary who must be a natural person with an
insurable interest in the member's life. Upon the death of the
member, the benefit shall continue as a life annuity to the
beneficiary in an amount equal to fifty percent, sixty-six and
two-thirds percent, seventy-five percent or one hundred percent of
the amount paid while both were living as selected by the member.
If the beneficiary dies first, the monthly amount of benefits may
not be reduced, but shall be paid at the amount that was in effect
before the death of the beneficiary. If the retiring member is
married, the spouse shall sign a waiver of benefit rights if the
beneficiary is to be other than the spouse.
(b) Option B -- Ten years certain and life annuity. -- A life
annuity payable during the member's lifetime but in any event for a minimum of ten years. If the member dies before the expiration
of ten years, the remaining payments shall be made to a designated
beneficiary, if any, or otherwise to the member's estate.
§5-10E-19. Refunds to certain members upon discharge or
resignation; deferred retirement; forfeitures.
(a) Any member who terminates covered employment and is not
eligible to receive disability benefits under this article is, by
written request filed with the board, entitled to receive from the
fund the member's accumulated contributions. Except as provided in
subsection (b) of this section, upon withdrawal the member shall
forfeit his or her accrued benefit and cease to be a member.
(b) Any member who withdraws accumulated contributions from
either this plan or the Public Employees Retirement System and
thereafter becomes reemployed in covered employment may not receive
any credited service for the prior covered employment unless
following his or her return to covered employment, the member re-
deposits in the fund the amount of the accumulated contributions
withdrawn from previous covered employment, together with interest
on the accumulated contributions at the rate determined by the
board from the date of withdrawal to the date of redeposit. Upon
repayment he or she shall receive the same credit on account of his
or her former covered employment as if no refund had been made.
The repayment shall be made in a lump sum within sixty months of
the correction officer's reemployment or if later, within sixty months of the effective date of this article.
(c) Every member who completes sixty months of covered
employment is eligible, upon cessation of covered employment, to
either withdraw his or her accumulated contributions in accordance
with this section, or to choose not to withdraw his or her
accumulated contribution and to receive retirement income payments
upon attaining early or normal retirement age.
(d) Notwithstanding any other provision of this article,
forfeitures under the plan may not be applied to increase the
benefits any member would otherwise receive under the plan.
§5-10E-20. Awards and benefits for disability -- Duty related.
(a) Any member who after the effective date of this article
and during covered employment: (1) Has been or becomes totally
disabled by injury, illness or disease; and (2) the disability is
a result of an occupational risk or hazard inherent in or peculiar
to the services required of members; and (3) the disability was
incurred while performing correction officer functions during
either scheduled work hours or at any other time; and (4) in the
opinion of two physicians after medical examination, one of whom
shall be named by the board, the member is by reason of the
disability unable to perform adequately the duties required of a
correction officer, is entitled to receive and shall be paid from
the fund in monthly installments during the lifetime of the member,
or if sooner until the member attains normal retirement age or until the disability sooner terminates, the compensation under this
section.
(b) If the member is totally disabled, the member shall
receive ninety percent of his or her average monthly compensation
for the twelve-month period preceding the member's disability, or
the shorter period if the member has not worked twelve months.
(c) If the member remains totally disabled until attaining
sixty-five years of age, the member shall then receive the
retirement benefit provided in sections seventeen and eighteen of
this article.
§5-10E-21. Same -- Due to other causes.
(a) Any member who after the effective date of this article
and during covered employment: (1) Has been or becomes totally
disabled from any cause other than those set forth in section
twenty of this article and not due to vicious habits, intemperance
or willful misconduct on his or her part; and (2) in the opinion of
two physicians after medical examination, one of whom shall be
named by the board, he or she is by reason of the disability unable
to perform adequately the duties required of an correction officer,
is entitled to receive and shall be paid from the fund in monthly
installments during the lifetime of the member, or if sooner until
the member attains normal retirement age or until the disability
sooner terminates the compensation set forth in, either subsection
(b) or (c) of this section.
(b) If the member is totally disabled, he or she shall
receive sixty-six and two-thirds percent of his or her average
monthly compensation for the twelve-month period preceding the
disability, or the shorter period, if the member has not worked
twelve months.
(c) If the member remains totally disabled until attaining
sixty years of age, then the member shall receive the retirement
benefit provided in sections seventeen and eighteen of this
article.
(d) The board shall propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code concerning member disability
payments so as to ensure that the payments do not exceed one
hundred percent of the average current salary for the position last
held by the member.
§5-10E-22. Same -- Physical examinations; termination of
disability.
The board may require any member who has applied for or is
receiving disability benefits under this article to submit to a
physical examination, mental examination or both, by a physician or
physicians selected or approved by the board and may cause all
costs incident to the examination and approved by the board to be
paid from the fund. The costs may include hospital, laboratory, X-
ray, medical and physicians' fees. A report of the findings of any physician shall be submitted in writing to the board for its
consideration. If, from the report, independent information, or
from the report and any hearing on the report, the board is of the
opinion and finds that: (1) The member has become reemployed as a
correction officer; (2) a physician who has examined the member has
found that considering the opportunities for correction officer
services in West Virginia, the member could be so employed as a
correction officer; or (3) other facts exist to demonstrate that
the member is no longer totally disabled, then the disability
benefits shall cease. Benefits shall cease once the member has
been found to be no longer totally disabled: Provided, That the
board shall require annual recertification.
§5-10E-23. Prior disability.
Any correction officer who became totally disabled as a
result of illness or injury incurred in the line of duty prior to
the effective date of this article may be a member of the plan at
his or her election and is entitled to disability, death and
retirement benefits under this article in lieu of any other
disability, death or retirement benefits provided solely in
conjunction with a retirement system of this state or his or her
county of employment: Provided, That the correction officer would
have been eligible for disability under section twenty of this
article had that section been in effect at the time of the
disability. The amounts of the benefits shall be determined as if the disability first commenced after the effective date of this
article with monthly compensation equal to that average monthly
compensation which the member was receiving in the plan year prior
to the initial disability. For the purposes of this section,
benefits paid pursuant to chapter twenty-three of this code are not
death or retirement benefits provided solely in conjunction with a
retirement system of this state.
§5-10E-24. Awards and benefits to surviving spouse -- When member
dies in performance of duty, etc.
(a) The surviving spouse of any member who, after the
effective date of this article while in covered employment, has
died or dies by reason of injury, illness or disease resulting from
an occupational risk or hazard inherent in or peculiar to the
service required of members, while the member was or is engaged in
the performance of his or her duties as a correction officer, or
the survivor spouse of a member who dies from any cause while
receiving benefits pursuant to section twenty of this article, is
entitled to receive and shall be paid from the fund benefits as
determined in subsection (b) of this section: To the surviving
spouse annually, in equal monthly installments during his or her
lifetime an amount equal to the greater of: (1) Two thirds of the
annual compensation received in the preceding twelve-month period
by the deceased member; or (2) if the member dies after his or her
early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or
her death, elected a one hundred percent joint and survivor annuity
with the spouse as the joint annuitant, and then died.
(b) Benefits for a surviving spouse received under this
section, section twenty-six and twenty seven of this article are in
lieu of receipt of any other benefits under this article for the
spouse or any other person or under the provisions of any other
state retirement system based upon the member's covered employment.
§5-10E-25. Same -- When member dies from nonservice-connected
causes.
(a) If a member who has been a member for at least ten years,
while in covered employment after the effective date of this
article, has died or dies from any cause other than those specified
in section twenty-four of this article and not due to vicious
habits, intemperance or willful misconduct on his or her part, the
fund shall pay annually in equal monthly installments to the
surviving spouse during his or her lifetime, a sum equal to the
greater of: (1) One half of the annual compensation received in
the preceding twelve-month employment period by the deceased
member; or (2) if the member dies after his or her early or normal
retirement age, the monthly amount which the spouse would have
received had the member retired the day before his or her death,
elected a one hundred percent joint and survivor annuity with the
spouse as the joint annuitant, and then died. Where the member is receiving disability benefits under this article at the time of his
or her death, the most recent monthly compensation determined under
section twenty-three of this article shall be substituted for the
annual compensation in subdivision (1) of this subsection.
(b) Benefits for a surviving spouse received under this
section, or other sections of this article are in lieu of receipt
of any other benefits under this article for the spouse or any
other person or under the provisions of any other state retirement
system based upon the member's covered employment.
§5-10E-26. Additional death benefits and scholarships -- Dependent
children.
(a) In addition to the spouse death benefits in this article,
the surviving spouse is entitled to receive and there shall be paid
to the spouse one hundred dollars monthly for each dependent child.
(b) If the surviving spouse dies or if there is no surviving
spouse, the fund shall pay monthly to each dependent child a sum
equal to one hundred percent of the spouse's entitlement under this
article divided by the number of dependant children. If there is
neither a surviving spouse nor a dependent child, the fund shall
pay in equal monthly installments 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 only 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.
(c) Any person qualifying as a dependent child under this, in
addition to any other benefits due under this or other sections of
this article, is entitled to receive a scholarship to be applied to
the career development education of that person. This sum, up to
but not exceeding six thousand dollars per year, shall be paid from
the fund to any university or college in this state or to any trade
or vocational school or other entity in this state approved by the
board, to offset the expenses of tuition, room and board, books,
fees or other costs incurred in a course of study at any of these
institutions so long as the recipient makes application to the
board on an approved form and under such rules as the board may
provide, and maintains scholastic eligibility as defined by the
institution or the board. The board may propose legislative rules
for promulgation in accordance with article three, chapter
twenty-nine-a of this code which define age requirements, physical
and mental requirements, scholastic eligibility, disbursement
methods, institutional qualifications and other requirements as
necessary and not inconsistent with this section.
§5-10E-27. Burial benefit.
Any member who dies as a result of any service related
illness or injury after the effective date is entitled to a lump
sum burial benefit of five thousand dollars. If the member is married, the burial benefit shall be paid to the member's spouse.
If the member is not married, the burial benefit shall be paid to
the member's estate for the purposes of paying burial expenses,
settling the member's final affairs, or both.
§5-10E-28. Double death benefits prohibited.
A surviving spouse is not entitled to receive simultaneous
death benefits under this article as a result of the death of two
or more members to whom the spouse was married. Any spouse who
becomes eligible for a subsequent death benefit under this article
while receiving a death benefit under this article shall receive
the higher benefit, but not both.
§5-10E-29. Right to benefits not subject to execution, etc.;
assignments prohibited; deductions for group
insurance; setoffs for fraud; exception for certain
domestic relations orders; benefits exempt from
taxes.
The right of a person to any benefit provided for in this
article shall not be subject to execution, attachment, garnishment,
the operation of bankruptcy or insolvency laws, or other process
whatsoever, nor shall any assignment thereof be enforceable in any
court except that the benefits or contributions under this system
shall be subject to "qualified domestic relations orders" as that
term is defined in Section 414(p) of the Internal Revenue Code as
applicable to governmental plans: Provided, That should a member be covered by a group insurance or prepayment plan participated in
by a participating public employer, and should he or she be
permitted to, and elect to, continue such coverage as a retirant,
he or she may authorize the board of trustees to have deducted from
his or her annuity the payments required of him or her to continue
coverage under such group insurance or prepayment plan: Provided,
however, That a participating public employer shall have the right
of setoff for any claim arising from embezzlement by, or fraud of,
a member, retirant or beneficiary. The assets of the retirement
system are hereby exempt from state, county and municipal taxes.
§5-10E-30. Fraud; penalties; and repayment.
Any person who knowingly makes any false statement or who
falsifies or permits to be falsified any record of the retirement
system in any attempt to defraud that system is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine not to exceed one thousand dollars, by confinement in jail not
to exceed one year, or by both fine and confinement. Any increased
benefit received by any person as a result of the falsification or
fraud shall be returned to the fund upon demand by the board.
§5-10E-31. Credit toward retirement for member's prior military
service; credit toward retirement when member has
joined Armed Forces in time of armed conflict;
qualified military service.
(a) Any member who has previously served on active military duty is entitled to receive additional years of service for the
purpose of determining his or her years of credited service 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; and
(3) That he or she is receiving no benefits from any other
retirement system for his or her active military duty.
(b) In addition, any member who while in covered employment
was commissioned, enlisted or inducted into the Armed Forces of the
United States or, being a member of the reserve officers' corps,
was called to active duty in the Armed Forces between the first day
of September, one thousand nine hundred forty, and the close of
hostilities in World War II, or between the twenty-seventh day of
June, one thousand nine hundred fifty, and the close of the armed
conflict in Korea on the twenty-seventh day of July, one thousand
nine hundred fifty-three, between the first day of August, one
thousand nine hundred sixty-four, and the close of the armed
conflict in Vietnam, or during any other period of armed conflict
by the United States whether sanctioned by a declaration of war by
Congress or by executive or other order of the President, is
entitled to and shall receive credited service, for a period equal to the full time that he or she has or, pursuant to that
commission, enlistment, induction or call, shall have served with
the Armed Forces subject to the following:
(1) That he or she has been honorably discharged from the
Armed Forces;
(2) That within ninety days after honorable discharge from
the Armed Forces, he or she presented himself or herself to his or
her employer and offered to resume service as an correction
officer; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the Armed Forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(c) The total amount of service allowable under subsections
(a) and (b) of this section may not exceed five years.
(d) Any service credit allowed under this section may be
credited one time only for each correction officer, regardless of
any changes in job title or responsibilities.
(e) Notwithstanding any provision of this section to the
contrary, 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 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.
§§5-10E-32. Effective date; report to Joint Committee on Government
and Finance; special starting date for benefits.
(a) The provisions of this article become effective the first
day of January, two thousand nine: Provided, That no payout of any
benefits may be made to any person prior to the first day of
January, two thousand twelve: Provided, however, That members who
retired due to a disability may begin receiving the benefits at the
rate and in the amount specified in this article, from this fund
after the thirtieth day of June, two thousand nine: Provided
further, That until the thirtieth day of June, two thousand nine
those members who retired due to a disability may draw benefits
from this fund at the rate and in the amount set forth in section
twenty-five, article ten, chapter five of this code.
(b) During the eighteen-month period before the payout of
benefits begins, the Joint Committee on Government and Finance
shall cause an interim study or studies to be conducted on potential effects of the implementation of this retirement system,
including, but not limited to, potential funding mechanisms to
provide health insurance coverage for retirees in the fifty to
fifty-five age group: Provided, That after the effective date of
this provision, the Director of the Public Employees Insurance
Agency shall propose a rule for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code governing the funding of health insurance coverage for
retirees under the plan provided in this article who are in the
fifty to fifty-five year age group, which rule may be filed as an
emergency rule: Provided, however, That any rule filed as an
emergency rule pursuant to this subsection shall be refiled at the
earliest opportunity as a legislative rule for review and
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code.
§5-10E-33. Benefits not forfeited if system terminates.
If the retirement system is terminated or contributions are
completely discontinued, the rights of all members to benefits
accrued or contributions made to the date of the termination or
discontinuance, to the extent then funded, are not forfeited.
NOTE: The purpose of this bill is to establish the Division
of Corrections Retirement System to be administered by the
Consolidated Public Retirement Board. The bill provides
definitions; effective dates; federal qualification requirements;
membership standards; required contributions from members and
employers; the creation of the West Virginia Division of Corrections Retirement Fund; transfer from Public Employees
Retirement System; time limits; notice requirement; commencement of
benefits; providing for retirement credited through member's use of
accrued annual or sick leave; providing retirement benefits;
annuity options; providing for refunds in certain circumstances;
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 awards and
benefits to surviving spouse and additional death benefits and
scholarships for dependent children; providing for burial benefit;
establishing exemption from taxation, garnishment and other
process; authorizing certain deductions; establishing the effect of
qualified domestic relation orders; prohibiting fraud and
establishing 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;
and providing for no forfeiture of benefits if the system
terminates.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.