Senate Bill No. 501
(By Senators Jenkins, Edgell and McCabe)
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[Originating in the Committee on Pensions;
reported February 10, 2004.]
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A BILL to amend and reenact
§5-10A-2 and §5-10A-3 of the code of
West Virginia, 1931, as amended; and to amend said code by
adding thereto a new section, designated §5-10A-11, all
relating to the disqualification of members for benefits for
less than honorable service; adding the West Virginia state
police retirement system, the
teachers' defined contribution
retirement system and the deputy sheriff retirement system to
the definition of "retirement plan"; increasing time to issue
notice to terminate benefits; and requiring prosecuting
attorneys to notify retirement board of convictions or other
disqualifying event.
Be it enacted by the Legislature of West Virginia:
That
§5-10A-2 and §5-10A-3 of the code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §5-10A-11, all to read
as follows:
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
(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 death, disability and retirement
fund of the department of public safety, 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; 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 service as an officer or
employee of this state or of any political subdivision, agency or
instrumentality thereof, whenever such 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; or
(2) Conviction of a participant of a felony for conduct
related to his office or employment, which he committed while
holding such office or during such employment; or
(3) Conduct of a participant which constitutes all of the
elements of a crime described in either of the foregoing
subdivision (1) or (2) but for which the participant was not
convicted because:
(i) Having been indicted for such crime, he or she made a plea
bargaining agreement pursuant to which he pleaded guilty to or nolo contendere to a lesser crime; or
(ii) Having been indicted for such crime, he or she was
granted immunity from prosecution for the same; or
(iii) Having been named as an unindicted coconspirator in an
indictment of another person for such a crime, which indictment
resulted in the conviction of such other person, he or she was not
prosecuted for such crime or conspiracy therefor.
(f) "Participant" means any person eligible for or receiving
any benefit under a retirement plan on account of his 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 board of trustees
of the West Virginia public employees retirement system; the board
of trustees of any municipal retirement fund; the board of trustees
of any policemen's or firemen's retirement plan; the retirement
board of the department of public safety; the state treasurer,
state auditor and one other member of the board of public works so
designated by the governor to sit on the supervisory board of the
judges' retirement plan (who shall for the purpose of this article
constitute the board); the designated members of the state teachers
retirement system established pursuant to section five, article
seven-a, chapter eighteen of this code; 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.
§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.
Whenever a supervisory board, upon receipt of a verified
complaint or otherwise, has reasonable cause to believe that a
participant rendered less than honorable service as defined in
section two of this article, it shall notify the affected
participant or beneficiary that it believes that the participant
rendered less than honorable service and that the participant or
beneficiary is thereby ineligible to receive benefits. No
supervisory board shall may issue such notice:
(1) If more than one year has two years have elapsed since the
judgment of conviction upon which such notice is based became
final; or
(2) In the cases described in subdivision (3), subsection (e),
section two of this article, if more than one year has two years
have elapsed since, as the case may be, the plea bargaining
agreement, the grant of immunity or, in the event the participant
was named as an unindicted co-conspirator for a crime, the
conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the effective date of this article.
The notice shall contain a concise statement of the reasons
why the board believes that the participant rendered less than
honorable service and shall be made either by personal service or
by certified mail, return receipt requested, to the address which
the participant or beneficiary maintains for purposes of
corresponding with the board. If notice is made by certified mail,
service shall be deemed complete upon mailing and a completed
receipt shall constitute proof of the receipt thereof. The notice
shall inform the participant or beneficiary that he has the right
to demand that the board seek a determination in circuit court of
his eligibility for benefits and membership in the retirement plan
by notifying the board of such demand within forty days. The notice
shall also inform the participant or beneficiary that the board
will terminate the benefits in accordance with section four of this
article and refund the participant's contributions with interest
less benefits previously paid as provided in section six of this
article if the participant or beneficiary either waives the right
to demand that the board take the matter before the circuit court
or fails to respond to the board's notice within forty days after
service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorney of each county of this state shall
within sixty days of a conviction or plea agreement in his or her county meeting the definition of less than honorable service report
the same to the executive director of the consolidated public
retirement board, including with the report the indictment, plea
agreement or any order finding the defendant guilty.
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(NOTE: The purpose of this bill is to add the West Virginia
state police retirement system, the teachers' defined contribution
retirement system and the deputy sheriff retirement system to the
definition of "retirement plan" relating to disqualifying members
for benefits for less than honorable service. The bill would
increase time to issue notice to terminate benefits from one year
to two years and add a new section requiring prosecuting attorneys
to notify the retirement board upon conviction, plea agreement or
other disqualifying event.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5-10A-11 is new; therefore strike-throughs and underlining
have been omitted.)