Senate Bill No. 505
(By Senators Foster and Unger)
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[Introduced February 8, 2007; referred to the Committee on
Pensions; and then to the Committee on Finance.]
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A BILL to amend and reenact §15-2-25a, §15-2-25b, §15-2-26,
§15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31,
§15-2-31a, §15-2-31b, §15-2-32, §15-2-33, §15-2-34, §15-2-35,
§15-2-37, §15-2-38, §15-2-39 and §15-2-44 of the Code of West
Virginia, 1931, as amended, all relating to the West Virginia
State Police Death, Disability and Retirement Fund; meaning of
terms; definitions; continuation of Death, Disability and
Retirement Fund; designating the Consolidated Public
Retirement Board as administrator of fund; retirement; awards
and benefits; leased employees; retirement annual annuity
adjustments; credit toward retirement for member's prior
military service; credit toward retirement when employee has
joined armed forces in time of armed conflict; qualified
military service; awards and benefits for disability incurred
in performance of duty; awards and benefits for disability due to other causes; disability physical examinations;
termination; application for disability benefit;
determinations; annual report on disability retirement
experience; retirant not to exercise police authority;
retention of group insurance; awards and benefits to
dependents of member when the member dies in performance of
duty; dependents of a duty disability retirant; dependent
child scholarship and amount; awards and benefits to
dependents of employee when the employee dies from
nonservice-connected causes; awards and benefits to dependents
of retirant or after employee serves twenty years; refunds to
certain employees upon discharge or resignation; deferred
retirement; refunds to dependents upon death of member not
eligible for benefits; dependent child or children; and
federal law maximum benefit limitations.
Be it enacted by the Legislature of West Virginia:
That §15-2-25a, §15-2-25b, §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-31a, §15-2-31b,
§15-2-32, §15-2-33, §15-2-34, §15-2-35, §15-2-37, §15-2-38,
§15-2-39 and §15-2-44 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25a. Meaning of terms.
Any term used in this article relating to the Death, Disability and Retirement Fund
shall have has the same meaning as
when used in a comparable context of the laws of the United States,
unless a different meaning
as is clearly required. Any reference
in this article to the Internal Revenue Code means the Internal
Revenue Code, as it has been amended.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(b) "Department" means the West Virginia State Police.
(c) "Fund," "plan," or "system" means the West Virginia Death,
Disability and Retirement Fund.
(d) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the Board
to be purely administrative in nature.
(e) "Member" means an employee of the West Virginia State Police who is an active participant in the fund.
(f) "Partially disabled" means a member's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the member from engaging in
other types of nonlaw-enforcement employment.
(g) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(h) "Totally disabled" means a member's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subsection, a member is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as a
member of the department but also cannot, considering his or her
age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (1) The work exists in the immediate area in which the member lives; (2) a specific job vacancy exists; or (3) the member
would be hired if he or she applied for work.
(a) "Agency" means the West Virginia State Police.
(b) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity
or other benefit payable by the fund.
(c) "Board" means the West Virginia Consolidated Public
Retirement Board created pursuant to article ten-d, chapter five of
this code.
(d) "Dependent child" means any unmarried child or children
born to or adopted by a member of the fund who is:
(1) Under the age of eighteen;
(2) After reaching eighteen years of age, continues as a
full-time student in an accredited high school, college,
university, business or trade school, until the child or children
reaches the age of twenty-three years; or
(3) Is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory
to the board.
(e) "Dependent parent" means the member's parent or
step-parent claimed as a dependent by the member for federal income
tax purposes at the time of the member's death.
(f) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer before the twelfth day of March, one thousand nine hundred nine-four, and who
is eligible to participate in the fund.
(g) "Fund", "plan" or "system" means the West Virginia State
Police Death, Disability and Retirement Fund.
(h) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the board
to be purely administrative in nature.
(i) "Member" means any person who has contributions standing
to his or her credit in the fund and who has not yet entered into
retirement status.
(j) "Partially disabled" means an employee's inability, on a
probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the employee from engaging in
other types of nonlaw-enforcement employment.
(k) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(l) "Retirant" or "retiree" means any former member who is
receiving an annuity payable by the fund;
(m) "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.
(n) "Totally disabled" means an employee's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months.
For purposes of this subsection, an employee is totally disabled
only if his or her physical or mental impairments are so severe
that he or she is not only unable to perform his or her previous
work as an employee of the agency but also cannot, considering his
or her age, education and work experience, engage in any other kind
of substantial gainful employment which exists in the state
regardless of whether: (1) The work exists in the immediate area
in which the employee lives; (2) a specific job vacancy exists; or
(3) the employee would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund; designating the Consolidated Public Retirement Board
as administrator of fund.
(a) There is continued the Death, Disability and Retirement
Fund created for the benefit of members,
retirants of the
department and any
dependent dependents of
a retired or deceased
member retirants or deceased members of the
department fund.
(b) There shall be deducted from the monthly payroll of each
member employee of the department and paid into the fund six
percent of the amount of his or her salary:
Provided, That
beginning on the first day of July, one thousand nine hundred
ninety-four, there shall be deducted from the monthly payroll of
each
member employee and paid into the fund seven and one-half
percent of the amount of his or her salary:
Provided, however,
That on and after the first day of July, one thousand nine hundred
ninety-five, there shall be deducted from the monthly payroll of
each
member employee and paid into the fund nine percent of the
amount of his or her salary. An additional twelve percent of the
monthly salary of each
member employee of the department shall be
paid by the State of West Virginia monthly into the fund out of the
annual appropriation for the
department agency: Provided further,
That beginning on the first day of July, one thousand nine hundred
ninety-five, the
state agency shall pay thirteen percent of the
monthly salary of each
member employee into the fund:
And provided
further, That beginning on the first day of July, one thousand nine hundred ninety-six, the
state agency shall pay fourteen percent of
the monthly salary of each
member employee into the fund:
And
provided further, That on and after the first day of July, one
thousand nine hundred ninety-seven, the
state agency shall pay
fifteen percent of the monthly salary of each
member employee into
the
retirement fund. There shall also be paid into the fund
amounts that have previously been collected by the superintendent
of the
department agency on account of payments to
member employees
for court attendance and mileage, rewards for apprehending wanted
persons, fees for traffic accident reports and photographs, fees
for criminal investigation reports and photographs, fees for
criminal history record checks, fees for criminal history record
reviews and challenges or from any other sources designated by the
superintendent. All moneys payable into the fund shall be
deposited in the State Treasury and the
Treasurer and Auditor board
shall keep a separate account thereof.
their respective books
(c) Notwithstanding any other provisions of this article,
forfeitures under the fund shall not be applied to increase the
benefits any member would otherwise receive under the fund.
(d) The moneys in this fund, and the right of a member to a
retirement allowance, to the return of contributions, or to any
benefit under the provisions of this article, are exempt from any
state or municipal tax;
shall are not
be subject to execution,
garnishment, attachment or any other process whatsoever, with the exception that the benefits or contributions under the fund
shall
are be subject to "qualified domestic relations orders" as that
term is defined in Section 414(p) of the Internal Revenue Code with
respect to governmental plans; and
shall be are unassignable except
as is provided in this article. The
Death, Disability and
Retirement fund shall be administered by the
Consolidated Public
Retirement board created pursuant to article ten-d, chapter five of
this code.
(e) All moneys paid into and accumulated in the
Death,
Disability and Retirement fund, except amounts designated or set
aside by the awards, shall be invested by the
State Board of
Investments West Virginia Investment Management Board as provided
by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a)
The retirement board shall retire any member of the
department when the member has both attained the age of fifty-five
years and completed twenty-five years of service as a member of the
department, including military service credit granted under the
provisions of section twenty-eight of this article.
(b) The
retirement board shall retire any member of the
department fund who has
lodged filed with the
Executive Director of
the Consolidated Public Retirement board his or her voluntary
petition in writing for retirement and:
(1) Has or shall have completed twenty-five years of service as a member of the
department fund (including military service
credit granted under the provisions of section twenty-eight of this
article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
department fund (excluding military service credit granted under
section twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have
completed twenty years of service as a member of the
department
fund (excluding military service credit granted under section
twenty-eight of this article).
(c) (b) When the
retirement board retires any member under any
of the provisions of this section,
the board shall, by order in
writing, make an award directing that the member is entitled to
receive annually and
that there shall be paid to the member shall
be paid from the
Death, Disability and Retirement fund in equal
monthly installments during
the his or her lifetime
of the member
while in status of retirement, one or the other of two amounts,
whichever is the greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the
member employee during the whole
period of service as
a member an employee of the
department agency;
or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer
but less than twenty-five years as a member of the
department fund
and is retired under any of the provisions of this section before
he or she has attained the age of fifty years, payment of monthly
installments of the amount of retirement award to the member shall
commence on the
day following the date he or she attains the age of
fifty years.
Beginning on the fifteenth day of July, one thousand
nine hundred ninety-four, in no event may the provisions of section
thirteen, article sixteen, chapter five
of this code be applied in
determining eligibility to retire with either immediate or deferred
commencement of benefit.
(c) A member meeting the age and service requirements of this
section who terminates employment at two thousand four hundred
hours may begin to receive retirement annuity payments immediately
upon termination of employment. Any member meeting the age and
service requirements of this section who terminates employment at
a time of day other than two thousand four hundred hours shall
receive a pro rata share of a full day's amount for that day. Upon
receipt of properly executed forms from the agency and the member,
the board shall process the member's retirement petition and
commence annuity payments as soon as administratively feasible.
(d) Any individual who is a leased employee is not eligible to
participate in the fund. For purposes of this fund, a "leased
employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee
leasing organization or other similar organization. If a question
arises regarding the status of an individual as a leased employee,
the board has final power to decide the question.
§15-2-27a. Retirement annual annuity adjustments.
(a) Every member retirant of the department fund who is
fifty-five years of age or older and who is retired by the
retirement board under the provisions of section twenty-seven of
this article; every member retirant of the department fund who is
retired by the retirement board under the provisions of section
twenty-nine or thirty of this article; and every surviving spouse
or other beneficiary receiving a benefit pursuant to section
thirty-three or thirty-four of this article is eligible to receive
an annual retirement annuity adjustment equal to three and
seventy-five hundredths percent of his or her retirement award or
surviving spouse beneficiary award. Provided, That for any person
retiring on and after the fifteenth day of September, one thousand
nine hundred ninety-four, the annual retirement annuity adjustment
shall be equal to two percent of his or her retirement award or
award paid to a surviving spouse or other beneficiary The
adjustments may not be retroactive. Yearly adjustments shall begin
upon the first day of July of each year. The annuity adjustments
shall be awarded and paid to the members retirants or beneficiaries
from the Death, Disability and Retirement fund in equal monthly installments while the member is in status of retirement or payment
of beneficiary award. The annuity adjustments shall supplement the
retirement awards and benefits as provided in this article.
(b) Any member retirant or beneficiary who receives a benefit
pursuant to the provisions of section twenty-nine, thirty,
thirty-three or thirty-four of this article shall begin to receive
the annual annuity adjustment one year after the commencement of
the benefit on the next July first: Provided, That if the member
retirant has been retired for less than one year or if the
beneficiary has been in receipt of beneficiary payments for less
than one year when the first annuity adjustment is given on that
July first, that first annuity adjustment will shall be a pro rata
share of the full year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military
service; credit toward retirement when employee has
joined armed forces in time of armed conflict;
qualified military service.
(a) For purposes of this section, the term "active military
duty" means full-time active duty with the armed forces of the
United States, namely the United States Air Force, Army, Coast
Guard, Marines or Navy; and service with the National Guard or
reserve military forces of any of such the armed forces when the
member employee has been called to active full-time duty and has
received no compensation during the period of such the duty from any person other than the armed forces.
(b) Any member of the department fund who has previously
served on active military duty is entitled to and shall receive
credit on the minimum period of service required by law for
retirement pay from the service of the West Virginia State Police
under the provisions of this article for a period equal to the
active military duty not to exceed five years, subject to the
following:
(1) That he or she has been honorably discharged from the
armed forces;
(2) That he or she substantiates by appropriate documentation
or evidence his or her period of active military duty;
(3) That he or she is not receiving no benefits credit from
any other retirement system administered by the board for his or
her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under section thirty of this article, he or she has
actually served with the department fund for twenty years exclusive
of his or her active military duty.
(c) The amount of retirement pay to which any member is
entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the department agency equal to the average
monthly salary which he or she actually received from the department agency for his or her total service with the department
agency exclusive of the active military duty. The superintendent
shall transfer and pay into the Death, Disability and Retirement
fund from moneys appropriated for the department agency, a sum
equal to eighteen percent of the aggregate of the salaries on which
the retirement pay of all members has been calculated and
determined for their periods of active military duty. In addition,
any person who, while a member an employee of the department agency
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
the Congress or by executive or other order of the President, is
entitled to and shall receive credit on the minimum period of
service required by law for retirement pay from the service of the
West Virginia State Police for a period equal to the full time he
or she has or shall, pursuant to the commission, enlistment, induction or call, 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 has presented himself or herself to the
superintendent and offered to resume service as an active member
employee of the department agency; and
(3) That he or she has made no voluntary act, whether by
reenlistment, waiver of discharge, acceptance of commission or
otherwise, to extend or participate in extension of the period of
service with the armed forces beyond the period of service for
which he or she was originally commissioned, enlisted, inducted or
called.
(d) That amount of retirement pay to which any member employee
is entitled shall be calculated and determined as if the member
employee has continued in the active service of the department
agency at the rank or grade to him or her appertaining at the time
of the commission, induction, enlistment or call, during a period
coextensive with the time the member employee served with the armed
forces pursuant to the commission, induction, enlistment or call.
The superintendent of the department agency shall transfer and pay
each month into the Death, Disability and Retirement fund from
moneys appropriated for the department agency a sum equal to eighteen percent of the aggregate of salary which all members
employees would have been entitled to receive had they continued in
the active service of the department agency during a period
coextensive with the time the member employee served with the armed
forces pursuant to the commission, induction, enlistment or call:
Provided, That the total amount of military service credit
allowable under this section shall not exceed five years.
(e) Notwithstanding any of the preceding provisions of this
section, contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The retirement board
may determine all questions and make all decisions relating to this
section and, pursuant to the authority granted to the retirement
board in section one, article ten-d, chapter five of this code, may
promulgate rules relating to contributions, benefits and service
credit to comply with Section 414(u) of the Internal Revenue Code.
§15-2-29. Awards and benefits for disability incurred in
performance of duty.
(a) Any member of the department fund who has not yet entered
retirement status on the basis of age and service and who becomes
partially disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services required of members employees of the department agency and or
incurred pursuant to or while the member employee was engaged in
the performance of his or her duties as a member an employee of the
department agency shall, if, in the opinion of the retirement
board, he or she is by reason of that cause probably permanently
unable to perform adequately the duties required of him or her as
a member an employee of the department agency, but is able to
engage in any other gainful employment in a field other than law
enforcement, be retired from active service by the retirement
board. The member thereafter is entitled to receive annually and
there shall be paid to the member from the Death, Disability and
Retirement fund in equal monthly installments during the his or her
lifetime; of the member; or until the member attains the age of
fifty or until the disability eligibility sooner terminates, one or
the other of two amounts, whichever is greater:
(1) An amount equal to two thirds of the salary received in
the preceding twelve-month employment period: Provided, That if
the member had not been employed with the department for twelve
months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit five and
one-half percent of the total salary which would have been earned
during twenty-five years, or during actual service if more than
twenty-five years in the fund, based on the average earnings of the
retirant while employed as an employee of the agency; or
(2) The sum of six thousand dollars.
(b) Upon attaining age fifty, the member shall receive the
benefit provided in subsection (c), section twenty-seven of this
article as it would apply to his or her aggregate career earnings
from the department through the day immediately preceding his or
her disability. The recalculation of benefit upon a member
attaining age fifty shall be considered to be a retirement under
the provisions of section twenty-seven of this article, for
purposes of determining the amount of annual annuity adjustment and
for all other purposes of this article: Provided, That a member A
retirant who is partially disabled under this article may not,
while in receipt of benefits for partial disability, be employed as
a law-enforcement officer: Provided, however, That a member
retirant retired on partial disability under this article may serve
as an elected sheriff or appointed chief of police in the state
without a loss of disability retirement benefits so long as the
elected or appointed position is shown, to the satisfaction of the
board, to require the performance of administrative duties and
functions only, as opposed to the full range of duties of a
law-enforcement officer.
(c) If any member not yet in retirement status on the basis of
age and service is found by the board to be permanently and totally
disabled as the result of a physical or mental impairment resulting
from any occupational risk or hazard inherent in or peculiar to the services required of members employees of the department agency and
or incurred pursuant to or while the member was engaged in the
performance of his or her duties as a member an employee of the
department agency, the member is entitled to receive annually and
there shall be paid to the member from the Death, Disability and
Retirement fund in equal monthly installments during the his or her
lifetime of the member or until the disability eligibility sooner
terminates, an amount equal to the amount of the salary received by
the member in the preceding twelve-month employment period eight
and one-half percent of the total salary which would have been
earned by the employee during twenty-five years, or during actual
service if more than twenty-five years of service in the fund,
based on the average earnings of the retirant while employed as an
employee of the agency: Provided, That in no event may the amount
be less than fifteen thousand dollars per annum, unless otherwise
required by section forty of this article. Provided, however, That
if the member had not been employed with the department for twelve
months prior to the disability, the amount of monthly salary shall
be annualized for the purpose of determining the benefit
(d) The superintendent may expend moneys from funds
appropriated for the department agency in payment of medical,
surgical, laboratory, X ray, hospital, ambulance and dental
expenses and fees and reasonable costs and expenses incurred in the
purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member or disability retirant
of the department who has or becomes temporarily, permanently or
totally disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the service
required of members employees of the department agency and or
incurred pursuant to or while such the member was or shall be
engaged in the performance of duties as a member an employee of the
department agency. Whenever the superintendent determines that any
disabled member or retirant is ineligible to receive any of the
aforesaid benefits at public expense, the superintendent shall, at
the request of the disabled member or retirant, refer the matter to
the Consolidated Public Retirement board for hearing and final
decision. In no case will the compensation rendered to health care
providers for medical and hospital services exceed the then current
rate schedule in use by the Workers' Compensation Commission
approved by the West Virginia Insurance Commission.
(e) Any member awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and
receipt of properly executed forms from the agency and the member,
the board shall process the member's disability retirement benefit
and commence annuity payments as soon as administratively feasible.
(f) For the purposes of this section, the term "salary" does not include any compensation paid for overtime service.
§15-2-30. Awards and benefits for disability due to other causes.
(a) If any member while in employee who has served less than
twenty years and who remains in the active service of the
department agency has, in the opinion of the retirement board,
become permanently partially or totally disabled to the extent that
the member employee cannot adequately perform the duties required
of a member an employee of the department agency from any cause
other than those set forth in the preceding section and not due to
vicious habits, intemperance or willful misconduct on his or her
part, the member employee shall be retired by the retirement board.
The member employee is entitled to receive annually and there shall
be paid to the member while in status of retirement shall be paid
from the Death, Disability and Retirement fund in equal monthly
installments during the lifetime of such member a period equal to
one-half the time he or she served as an employee of the agency or
until the disability eligibility sooner terminates, a sum equal to
one-half the salary received in the preceding twelve-month period:
Provided, That if the member had not been employed with the
department for twelve months prior to the disability, the amount of
monthly salary shall be annualized for the purpose of determining
the benefit five and one-half percent of the total salary which
would have been earned during twenty-five years of service. At the
end of the one-half time period of service, the benefit payable for the remainder of the retirant's life is an annual sum paid in
monthly installments equal to one-half the base salary received by
the retirant from the agency in the preceding twelve-month period
immediately prior to the disability award: Provided, That if the
retirant was not employed with the agency for twelve months
immediately prior to the disability award, the amount of monthly
salary shall be annualized for the purpose of determining the
benefit.
(b) If the member employee, at the time of retirement under
the terms of this section, has served twenty years or longer as a
member an employee of the department agency, the member employee is
entitled to receive annually and there shall be paid to the member
from the Death, Disability and Retirement fund in equal monthly
installments, commencing on the date the member employee is retired
and continuing during the his or her lifetime of the member, until
the member attains the age of fifty, while in status of retirement,
an amount equal to one-half the salary received by the member in
the preceding twelve-month period: Provided, however, That if the
member had not been employed with the department for twelve months
prior to the disability, the amount of monthly salary shall be
annualized for the purpose of determining the benefit while in
status of retirement or until the disability eligibility sooner
terminates, a sum equal to five and one-half percent of the
aggregate of salary paid to the retirant through the day immediately preceding his or her disability award, to be determined
in the manner provided by subsection (c), section twenty-seven of
this article.
(c) An employee awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and
receipt of properly executed forms from the agency and the
employee, the board shall process the disability retirement benefit
and commence annuity payments as soon as administratively feasible.
(d) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
Upon attaining age fifty, the member shall receive the benefit
provided in subsection (c), section twenty-seven of this article as
it would apply to his or her aggregate career earnings from the
department through the day immediately preceding his or her
disability. The recalculation of benefit upon a member attaining
age fifty shall be considered to be a retirement under the
provisions of section twenty-seven of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article.
§15-2-31. Disability physical examinations; termination.
The Consolidated Public Retirement board may require any
member retirant who has been retired with compensation on account of disability to submit to a physical and/or mental examination by
a physician or physicians selected or approved by the board and
cause all costs incident to the examination including hospital,
laboratory, X ray, medical and physicians' fees to be paid out of
funds appropriated to defray the current expense of the department
agency and a report of the findings of the physician or physicians
shall be submitted in writing to the Consolidated Public Retirement
board for its consideration. If, from the report or from the
report and hearing on the report, the retirement board is of the
opinion and finds that the disabled member retirant has recovered
from the disability to the extent that he or she is able to perform
adequately the duties of a law-enforcement officer, the board shall
order that all payments from the Death, Disability and Retirement
fund to that disabled retirant be terminated. If, from the report
or the report and hearing on the report, the board is of the
opinion and finds that the disabled member retirant has recovered
from his or her previously determined probable permanent disability
to the extent that he or she is able to engage in gainful
employment but remains unable to adequately perform the duties of
a law-enforcement officer, the board shall order the payment, in
monthly installments of an amount equal to two thirds of the
salary, in the case of a member retirant retired under the
provisions of section twenty-nine of this article or equal to one
half of the salary, in the case of a member retirant retired under the provisions of section thirty of this article, excluding any
compensation paid for overtime service, for the twelve-month
employment period immediately preceding the disability award:
Provided, That if the member retirant had not been employed with
the department fund for twelve months immediately prior to the
disability award, the amount of monthly salary shall be annualized
for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member under the provisions of section twenty-nine of this article,
by an employee under the provisions of section thirty of this
article or, if the member or employee is under an incapacity, by a
person acting with legal authority on the member's or the
employee's behalf. After receiving an application for a disability
benefit, from a member or a person acting with legal authority on
behalf of the member the board shall notify the superintendent of
the department agency that an application has been filed:
Provided, That when, in the judgment of the superintendent, a
member an employee is no longer physically or mentally fit for
continued duty as a member an employee of the West Virginia State
Police and the member employee has failed or refused to make
application for disability benefits under this article, the
superintendent may petition the board to retire the member employee
on the basis of disability pursuant to rules which may be established by the board. Within thirty days of the
superintendent's receipt of the notice from the board or the filing
of the superintendent's petition with the board, the superintendent
shall forward to the board a statement certifying the duties of the
member's employee's employment, information relating to the
superintendent's position on the work relatedness of the member's
employee's alleged disability, complete copies of the member's
employee's medical file and any other information requested by the
board in its processing of the application, if this information is
requested timely.
(b) The board shall propose legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code relating to the processing of applications and petitions for
disability retirement under this article.
(c) The board shall notify the member and the superintendent
of its final action on the disability application or petition
within ten days of the board's final action. The notice shall be
sent by certified mail, return receipt requested. If either the
member or the superintendent is aggrieved by the decision of the
board and intends to pursue judicial review of the board's decision
as provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the board within
twenty days of the member's or superintendent's receipt of the
board's notice that they intend to pursue judicial review of the board's decision.
(d) (1) The board shall require each disability benefit
recipient to file an annual certified statement of earnings, to
include the amount and source of earnings and any other information
required in legislative rules which may be proposed by the board.
The board may waive or modify the requirement that a recipient of
total disability benefits file the annual statement of earnings if
the board's physician certifies that the recipient's disability is
ongoing. The board shall annually examine the information
submitted by each recipient. If a disability retirant refuses to
file a statement and other information required by the board, the
disability benefit shall be suspended, after notice and opportunity
to be heard, until the statement and information are filed.
(2) The board shall annually examine any information available
from the State Tax Commissioner on all recipients of disability
benefits pursuant to article ten, chapter eleven of this code.
(e) (1) A nonblind recipient earning annual income exceeding
the equivalent of eight hundred sixty dollars per month in the year
two thousand six, after impairment-related work expenses are
substracted subtracted from earnings, has engaged in substantial
gainful activity. A statutorily blind recipient has engaged in
substantial gainful activity in the year two thousand six if the
recipient has earned annual income exceeding the equivalent of one
thousand four hundred fifty dollars per month after impairment-related work expenses are substracted subtracted from
earnings.
(2) The substantial gainful activity dollar limit shall be
automatically adjusted annually to correspond to the dollar limit
as established and published by the United States Social Security
Administration for each year in accordance with methods published
in the Federal Register (FR6582905 December 29, 2000) and similar
methods used by the Social Security Administration applying the
average annual wage index.
(3) If after review of a disability retirant's annual
statement of earnings, tax records or other financial information,
as required or otherwise obtained by the board, the board
determines that earnings of the recipient of total disability
benefits in the preceding year are sufficient to show that the
recipient engaged in substantial gainful activity, the disability
retirant's disability annuity shall be terminated by the board,
upon recommendation of the board's disability review committee and
after notice and opportunity to be heard, on the first day of the
month following the board's action.
(4) If the board obtains information that a recipient of
partial disability benefits is employed as a law-enforcement
officer, upon recommendation of the board's disability review
committee and after notice and an opportunity to be heard, the
board shall terminate the recipient's disability benefits on the first day of the month following the board's action.
(f) Any person who wishes to reapply for disability retirement
and whose disability retirement has been terminated by the board
pursuant to this section may do so within ninety days of the
effective date of termination: Provided, That any person
reapplying for disability benefits shall undergo an examination at
the applicant's expense by an appropriate medical professional
selected by the board as part of the reapplication process.
(g) Notwithstanding other provisions in this section, any
person whose disability retirement has been terminated by the board
pursuant to this section may apply for regular retirement benefits
upon meeting the eligibility requirements of age and years of service.
§15-2-31b. Annual report on disability retirement experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the board shall prepare a
report for the preceding fiscal year of the disability retirement
experience of the West Virginia State Police Death, Disability and
Retirement Fund. The report shall specify the total number of
disability applications submitted, the status of each application
as of the last day of the fiscal year, total applications granted
or denied, and the percentage of disability benefit recipients to
the total number of West Virginia State Police employees who are
members of the fund. The report shall be submitted to the Governor
and the chairpersons of the standing committees of the Senate and House of Delegates with primary responsibility for retirement
legislation.
§15-2-32. Retirant not to exercise police authority; retention of
group insurance.
A member who is retired retirant may not while in retirement
status, exercise any of the powers conferred upon active members
employees by section twelve of this article; but is entitled to
receive free of cost to the member retirant and retain as his or
her separate property one complete standard uniform prescribed by
section nine ten of this article: Provided, That the uniform may
be worn by a member in retirement status only retirant on occasions
prescribed by the superintendent. The superintendent shall
maintain at public expense for the benefit of all members in
retirement status retirants that group life insurance mentioned in
section ten of this article. The superintendent, when he or she is
of opinion that the public safety shall require, may recall to
active duty during any period determined by the superintendent, any
member retiree who is retired under the provisions of section
twenty-seven of this article, provided the consent of the member
retiree to reassume duties of active membership shall first be had
and obtained. When any member in retirement Any retirant who
resumes status of active membership the member, during the period
the member remains in active status, is not entitled to receive
retirement pay or benefits, but in lieu thereof, is entitled to receive that rate of salary and allowance pertinent to the rank or
grade previously held by the member when retired retirant. When
the member former retirant is released from active duty, he or she
shall reassume the status of retirement and shall thereupon be
entitled to receive appropriate benefits as provided by this
article: Provided, That the amount of the benefits shall in no
event be less than the amount determined by the order of the
retirement board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member when the
member dies in performance of duty; to dependents of
a duty disability retirant; dependent child
scholarship and amount.
(a) The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or loses his
or her life by reason of injury, illness or disease resulting from
an occupational risk or hazard inherent in or peculiar to the
service required of members employees while the member was or is
engaged in the performance of his or her duties as a member an
employee of the department agency, or if the member a retirant dies
from any cause after having been retired pursuant to the provisions
of section twenty-nine of this article, the surviving spouse or
other dependent is entitled to receive and shall be paid from the
Death, Disability and Retirement fund benefits as follows: To the
surviving spouse annually, in equal monthly installments during his or her lifetime the greater of one or the other of two amounts:
which shall become immediately available and which shall be the
greater of
(1) An amount equal to seven tenths of the salary received in
the preceding twelve-month employment period by the deceased
member: Provided, That if the member had not been employed with
the department for twelve months prior to the disability, the
amount of monthly salary shall be annualized for the purpose of
determining the benefit five and one-half percent of the total
salary which was or would have been earned by the deceased member
or duty disability retirant during twenty-five years of service
based on the average earnings of the member or duty disability
retirant while employed by the agency; or
(2) The sum of six thousand dollars.
(b) In addition, thereto the surviving spouse is entitled to
receive and there shall be paid to the surviving spouse one hundred
dollars monthly for each dependent child or children. If the
surviving spouse dies or if there is no surviving spouse, there
shall be paid monthly to each dependent child or children from the
Death, Disability and Retirement fund a sum equal to twenty-five
percent of the surviving spouse's entitlement. If there is no
surviving spouse and no dependent child or children, there shall be
paid annually in equal monthly installments from the Death,
Disability and Retirement fund to the dependent parents of the deceased member or retirant during their joint lifetimes a sum
equal to the amount which a surviving spouse, without children,
would have received: Provided, That when there is but one
dependent parent surviving, that parent is entitled to receive
during his or her lifetime one-half the amount which both parents,
if living, would have been entitled to receive.
(c) Any person qualified as a surviving dependent child under
this section, 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 seven thousand five
hundred dollars shall be paid from the Death, Disability and
Retirement fund to any university or college in this state or to
any trade or vocational school or other entity in this state
approved by the board, to offset the expenses of tuition, room and
board, books, fees or other costs incurred in a course of study at
any of those institutions so long as the recipient makes
application to the board on an approved form and under rules as
provided by the board and maintains scholastic eligibility as
defined by the institution or the board. The board may by
appropriate rules define age requirements, physical and mental
requirements, scholastic eligibility, disbursement methods,
institutional qualifications and other requirements as necessary
and not inconsistent with this section.
(d) Awards and benefits for a member's surviving spouse or
dependents received under any section or any of the provisions of
this retirement system shall be in lieu of receipt of any benefits
for those persons under the provisions of any other state
retirement system. Receipt of benefits under any other state
retirement system shall be in lieu of any right to receive any
benefits under this retirement system, so that only a single
receipt of retirement benefits occurs A surviving spouse or
dependent of an employee meeting the requirements of this section
is entitled to receive beneficiary payments on the first day
following the date the deceased employee is removed from payroll by
the agency. A surviving spouse or dependent of a member who is not
currently an employee meeting the requirements of this section is
entitled to receive beneficiary payments on the first day following
the date of the deceased member's death. A surviving spouse or
dependent of a retirant meeting the requirements of this section is
entitled to receive beneficiary payments on the first day of the
month following the date of the deceased retirant's death. Upon
receipt of properly executed forms from the agency and the
surviving spouse or dependent, the board shall process the
surviving spouse or dependent benefit as soon as administratively
feasible.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-34. Awards and benefits to dependents of employee when the
employee dies from nonservice-connected causes.
(a) In any case where a member while in active service If an
employee of the department agency, before having completed twenty
years of service as a member an employee of the department agency,
dies from any cause other than those specified in this article and
not due to vicious habits, intemperance or willful misconduct on
his or her part, there shall be paid annually in equal monthly
installments from the Death, Disability and Retirement fund to the
surviving spouse of the member employee during his or her lifetime,
or until such time as the surviving spouse remarries, a sum equal
to one half of the salary received in the preceding twelve-month
employment period by the deceased member: Provided, That if the
member had not been employed with the department for twelve months
prior to his or her death, the amount of monthly salary shall be
annualized for the purpose of determining the benefit. The benefit
shall become immediately available upon the death of the member two
and three-quarters percent of the total salary which would have
been earned by the employee during twenty-five years of service
with the agency based on his or her average earnings while employed
with the agency. If there is no surviving spouse, or the surviving
spouse dies or remarries, there shall be paid monthly to each
dependent child or children from the Death, Disability and
Retirement fund, a sum equal to twenty-five percent of the surviving spouse's entitlement. If there is no surviving spouse
and no dependent child or children, there shall be paid annually in
equal monthly installments from the fund to the dependent parents
of the deceased member employee during their joint lifetimes, a sum
equal to the amount which a surviving spouse would have been
entitled to receive: Provided, That when there is but 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.
(b) A surviving spouse or dependent meeting the requirements
of this section is entitled to receive beneficiary payments on the
first day following the date the deceased employee is removed from
payroll by the agency. Upon receipt of properly executed forms
from the agency and the surviving spouse or dependent, the board
shall process the surviving spouse or dependent benefit as soon as
administratively feasible.
(b)(c) For the purposes of this section, the term "salary"
does not include compensation paid for overtime service.
§15-2-35. Awards and benefits to dependents of retirant or after
an employee serves twenty years.
(a) When any member employee of said department the agency has
heretofore completed or hereafter shall complete twenty years of
service or longer as a member an employee of said department the
agency and has died or shall die dies from any cause or causes other than those specified in this article before having been
retired by the retirement board, and when a member retirant in
retirement status has died or shall die dies after having been
retired by the retirement board under the provisions of this
article, there shall be paid annually in equal monthly installments
from said the fund to the surviving spouse of said member the
employee or retirant commencing on the date of the death of said
member and continuing during the lifetime or until remarriage of
said the surviving spouse, an amount equal to three-fourths the
retirement benefits said the deceased member retirant was receiving
or would have been entitled to receive while in status of
retirement, or would have been entitled to receive to the same
effect as if such member the employee had been retired under the
provisions of this article immediately prior to the time of his or
her death and in no event to be less than five thousand dollars,
unless otherwise required under section forty of this article, and
in addition thereto said the surviving spouse shall be entitled to
receive and there shall be paid to such surviving spouse from said
from the fund the sum of one hundred dollars monthly for each
dependent child or children. If such the surviving spouse die dies
or remarry remarries or if there be is no surviving spouse, there
shall be paid monthly from said the fund to each dependent child or
children of said the deceased member employee or retirant a sum
equal to twenty-five percent of the surviving spouse's entitlement. If there be is no surviving spouse or no surviving spouse eligible
to receive benefits and no dependent child or children, there shall
be paid annually in equal monthly installments from said the fund
to the dependent parents of said the deceased member employee or
retirant during their joint lifetimes a sum equal to the amount
which a surviving spouse without children would have been entitled
to receive: Provided, That when there shall be but is only one
dependent parent surviving, such the parent shall be entitled to
receive during his or her lifetime one-half the amount which both
parents, if living, would have been entitled to receive.
(b) A surviving spouse or dependent of an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day following the date the deceased employee
is removed from payroll by the agency. A surviving spouse or
dependent of a retirant meeting the requirements of this section is
entitled to receive beneficiary payments on the first day of the
month following the date of the deceased retirant's death. Upon
receipt of properly executed forms from the agency and the
surviving spouse or dependent, the board shall process the
surviving spouse or dependent benefit as soon as administratively
feasible.
§15-2-37. Refunds to certain employees upon discharge or
resignation; deferred retirement.
(a) Any member employee who is discharged by order of the superintendent or otherwise terminates employment with the
department agency, at the written request of the member to the
retirement board, is entitled to receive from the retirement fund
a sum equal to the aggregate of the principal amount of moneys
deducted from his or her salary and paid into the State Police
Death, Disability and Retirement fund plus four percent interest
compounded thereon calculated annually as provided and required by
this article.
(b) Any member withdrawing contributions who may thereafter be
reenlisted as a member of the department reemployed by the agency
shall not receive any prior service credit in the fund on account
of former service. unless following reenlistment the member The
employee may redeposits redeposit in the fund established in
article two-a of this chapter the amount of the refund, together
with interest thereon at the rate of seven and one-half percent per
annum from the date of withdrawal to the date of redeposit, in
which case he or she shall receive the same credit on account of
his or her former service as if no refund had been made. He or she
shall become a member of the retirement system established in
article two-a of this chapter.
(c) Every member employee who completes ten years of service
with the department agency is eligible, upon separation of
employment, with the department either to withdraw his or her
contributions in accordance with subsection (a) of this section or to choose not to withdraw his or her accumulated contributions with
interest. Upon attainment of age sixty-two, a member who chooses
not to withdraw his or her contributions is eligible to receive a
retirement annuity. Any member choosing to receive the deferred
annuity under this subsection is not eligible to receive the annual
annuity adjustment provided in section twenty-seven-a of this
article. When the retirement board retires any member under any of
the provisions of this section, the board shall, by order in
writing, make an award directing that the member is entitled to
receive annually and that there shall be paid to the member from
the State Police Death, Disability and Retirement shall be paid
from the fund in equal monthly installments during the lifetime of
the member while in status of retirement one or the other of two
amounts, whichever is greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member employee during the whole
period of service as a member an employee of the department agency;
or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring
(d) A member may choose, in lieu of a life annuity available
under the provisions of subsection (c) of this section, an annuity
in a reduced amount payable during the member's lifetime, with one half of the reduced monthly amount paid to his or her surviving
spouse if any, for the spouse's remaining lifetime after the death
of the member retirant. Reduction of this monthly benefit amount
shall be calculated to be of equal actuarial value to the life
annuity the member could otherwise have chosen.
(e) A member retiring under the provisions of this section may
receive retirement annuity payments on the day following his or her
attaining age sixty-two. Upon receipt of properly executed forms
from the agency and the member, the board shall process the
member's retirement benefit and commence annuity payments as soon
as administratively feasible.
§15-2-38. Refund to dependents upon death of member not eligible
for benefits.
If any member while in active status shall die dies
after
having
served two full years or longer
as a member
of said
department and the retirement board shall be
thereon that the dependent or dependents of said the
member are ineligible under the provisions of this article to
receive any of the benefits provided herein, the superintendent
board shall refund to the spouse, if surviving, but if not
surviving, to the children of such the member, and if there be is
no surviving spouse or children, to the dependent parents, a sum
equal to the aggregate of the principal amount of all moneys
deducted from the salary of such the member and paid into such the fund. as aforesaid, and If there is no surviving spouse or
children or dependent parent or parents, then the same shall remain
in the fund a sum equal to the aggregate of the principal amount of
all moneys deducted from the salary of the member and paid into the
fund will be paid to the member's estate. Whenever any such a
refund shall be is made to the surviving spouse or other dependents
of such the deceased member, the surviving spouse or other
dependents shall not be entitled to any other rights or benefits on
account of said from the fund. under the provisions of this
article
§15-2-39. Dependent child or children.
In any case where under the terms of this article benefits are
provided for "dependent child or children," such phrase shall mean
any child or children born to or adopted by a member of the
department under the age of eighteen or where such child or
children after reaching eighteen years of age continues as a
full-time student in an accredited high school, college,
university, business or trade school, until such child reaches the
age of twenty-three years or where such child or children is an
invalid as long as such child or children remains an invalid, such
benefits provided for shall be paid. Benefits provided under the
terms of this article for "dependent child or children" shall
dependent child or children, the benefits shall be paid for so long
as they continue to meet the foregoing qualifications and no longer provided under the provisions of this article.
§15-2-44. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the fund 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 fund shall exceed those limitations. The extent to
which any annuity or other benefit payable under this fund 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 shall
maximize the aggregate benefits payable to the member. If the
reduction is under this fund, the board shall advise affected
members or retirants of any additional limitation on the annuities
required by this section.
______
(NOTE: The purpose of this bill is to add definitions of
"agency", "beneficiary", "board", "dependent child", "dependent
parent", "employee", "retirant" and "surviving spouse" to the West
Virginia State Police Death, Disability and Retirement fund; to
amend the definition of "member;" to clarify the Consolidated
Public Retirement Board's role in the administration of the fund;
to delete statutory provisions determined unconstitutional by the
West Virginia State Supreme Court of Appeals (Booth v. Sims, 456
S.E.2d 167 (W.Va. 1994)); to clarify that members may receive
service credit for active duty in the Armed Forces under one retirement system administered by the board; to clarify that an
employee's disability must have resulted from any occupational risk
or hazard inherent in or peculiar to services required of employees
of the fund or incurred while the employee was engaged in the
performance of his or her duties; to clarify the start date for
payment of retirement and beneficiary benefits; to correct code
references; and to delete obsolete provisions from the article.
Obsolete provisions contained in §15-2-26 remain for
historical reference only.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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