ENROLLED
H. B. 2984
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Passed April 9, 2005; in effect from passage]
AN ACT
to amend and reenact §5-5-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §5-10-2, §5-10-15, §5-
10-17, §5-10-21, §5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-
10-31 and §5-10-44 of said code; to amend said code by adding
thereto a new section, designated §5-10-22h; to amend and
reenact §5-10A-2 and §5-10A-3 of said code; to amend said code
by adding thereto a new section, designated §5-10A-11; to
amend and reenact §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23
of said code; to amend and reenact §12-8-2, §12-8-3, §12-8-4,
§12-8-5, §12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code;
to amend said code by adding thereto a new section designated
§12-8-15; to amend and reenact §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33,
§15-2-34 and §15-2-37 of said code; to amend said code by
adding thereto four new sections, designated §15-2-25b, §15-2-
31a, §15-2-31b and §15-2-39a; to amend and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10,
§15-2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of
said code; to amend said code by adding thereto four new
sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and
§15-2A-22; to amend and reenact §18-7A-3, §18-7A-14, §18-7A-
17,
§18-7A-18, §18-7A-18a,
§18-7A-23a, §18-7A-25, §18-7A-26
and §18-7A-34 of said code; to amend said code by adding
thereto three new sections, designated §18-7A-28e, §18-7A-39
and §18-7A-40; to amend and reenact §18-7B-2, §18-7B-7, §18-
7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of said code; to
amend and reenact said code by adding thereto two new
sections, designated §18-7B-7a and §18-7B-20; to amend said
code by adding thereto a new article, designated §18-7C-1,
§18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7,
§18-7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13
and §18-7C-14; and to amend said code by adding thereto a new
section, designated §51-9-6c, all relating to state pensions
and retirement generally; providing comprehensive changes to
certain plans administered by the Consolidated Public
Retirement Board; enacting the Governor's Pension Reform Act
of 2005; rights of members' unused, accrued leave in final
average salary in the Public Employees Retirement System;
limitations on benefit increases; bond pledges and covenants
regarding unfunded liabilities; limiting time for
amortization; amending and adding definitions in the Public
Employees Retirement System; clarifying use of restricted qualified military service credit to one retirement system;
vesting of retirement benefits for those members of the armed
forces accumulating nine or more years of credited service who
are called from participating employment to compulsory
military service or armed conflict and who die during, or as
a result of, compulsory active service and prior to resumption
of participating employment; setting time limit on
application; restricting certain rights of members to select
a plan beneficiary; establishing a cap on the amount certain
persons may receive from the Public Employees Retirement
System where that person is also receiving a pension from
another pension or retirement system administered by the
Consolidated Public Retirement Board; authorizing annual
physician review and requiring an annual statement of earnings
from certain persons receiving disability retirement payments;
providing for suspension of benefits upon failure of
disability retiree to furnish certain information; providing
that interest is to be included in the calculation of terminal
benefits payable as the result of death of retired
participants; addressing the correction of employer errors;
clarifying use of members' unused, accrued leave in final
average salary; making technical corrections to the Public
Employees Retirement System; amending the definitions of less
than honorable service and retirement plan; increasing the
time to issue notice to terminate benefits; requiring
prosecuting attorneys to notify retirement board of any convictions or pleas to less than honorable service; declaring
policy and making legislative findings regarding pension
liability redemption; setting forth definitions; providing for
issuance of bonds; method of bond issuance and sale of bonds;
use of bond proceeds; continuation of Pension Liability
Redemption Fund and disbursements therefrom; setting forth
state pledges and covenants; operation of article; relating to
the Deputy Sheriff Retirement System; concurrent contributions
by members and employers; credit for nondeputy sheriff service
in the Public Employees Retirement System prior to transfer;
treatment of withdrawals not repaid prior to transfer;
providing that any person becoming a member of the Deputy
Sheriff Retirement System after the first day of July, two
thousand five, may not borrow from that plan; relating to the
West Virginia State Police Death, Disability and Retirement
Fund generally; adding general definitions to the West
Virginia State Police Death, Disability and Retirement Fund;
adding definitions of "law-enforcement officer", "partially
disabled", "totally disabled" and "physical or mental
impairment" to the West Virginia State Police Death,
Disability and Retirement Fund; making technical changes in to
the West Virginia State Police Death, Disability and
Retirement Fund; providing for probable permanent disability
status; specifying that total disability now is inability to
perform any substantial gainful employment and that partial
disability is inability to perform law enforcement duties; specifying limitation on compensation rendered to health care
providers; providing that member receiving annuity for partial
disability incurred in performance of duty may be employed as
an elected sheriff or appointed chief of police if it is shown
to the Board that such employment is not inconsistent with the
partial disability; allowing application for disability to be
made by person acting on member's behalf; allowing
Superintendent to petition Board for member's disability when
he or she deems the member disabled; authorizing rules;
judicial review; allowing Board to withhold payment pending
judicial review; requiring disability recipient to file annual
statement of earnings and setting forth penalty for refusal or
failure to do so; annual report of employer's disability
retirement experience in to the West Virginia State Police
Death, Disability and Retirement Fund; limitation on benefit
increases; relating to amending definitions in the West
Virginia State Police Retirement System; determination of
contributions; acquiring retirement credited service through
member's use of accrued annual or sick leave days in the West
Virginia State Police Retirement System; establishing starting
date for payment of annuity in the West Virginia State Police
Retirement System; clarifying disability provisions and
technical corrections in the West Virginia State Police
Retirement System; annual report of employer's disability
retirement experience in to the West Virginia State Police
Retirement System; limitation on benefit increases; amending provisions relating to the State Teachers Retirement System;
amending, adding and alphabetizing the definitions; providing
for the use of qualified military service in the State
Teachers Retirement System; providing that in the case of
deceased retired participants that interest is to be included
in the calculation of terminal benefits payable and making
other technical modifications in the State Teachers Retirement
System; clarifying provisions for loan repayment in the State
Teachers Retirement System; replacing earnable compensation
with gross salary in the State Teachers Retirement System;
clarifying maximum loan amount and making technical
corrections in the State Teachers Retirement System; making
technical corrections to the Teachers Retirement System;
creating the Teachers Employers Contribution Collection
Account; monies to be deposited and transfer of monies in
account; continuing the Teachers Retirement System Fund;
monies to be deposited and use of monies in fund;
discontinuing the loan program participation of teachers and
nonteachers who become members of the Teachers Retirement
System on or after the first day of July, two thousand five;
limitation on benefits; creating Employee Pension and Health
Care Benefits Fund; moneys to be deposited; use of moneys in
fund; amending certain definitions in the Teachers' Defined
Contribution System; clarifying participation requirement in
the Teachers' Defined Contribution System; providing employer
deadlines for deposit of contributions in the Teachers Defined Contribution System; establishing when payments are to be made
into and out of the suspension account in the Teachers Defined
Contribution System; adding the Internal Revenue Service
provisions concerning incidental death benefits in the
Teachers Defined Contribution System; clarifying that all
years of employee service will be counted for vesting purposes
in the Teachers Defined Contribution System; prohibiting
involuntary cash-outs effective the thirtieth day of June, two
thousand five; making technical corrections in the Teachers
Defined Contribution System; requiring River Valley Child
Development Services to offer pension plan for employees;
allowing employees to withdraw from PERS; requiring notice;
relating to the merger and consolidation of the Teachers
Defined Contribution Retirement System and the State Teachers
Retirement System generally; closing the Teachers Defined
Contribution Retirement System to newly hired personnel;
providing legislative findings and purpose; providing
definitions; providing for merger and consolidation of the
Teachers Defined Contribution Retirement System and the State
Teachers Retirement System upon election; providing
responsibilities of the Consolidated Public Retirement Board;
setting forth dates and time periods for transition and
election; requiring that increase of or new benefits to the
Teachers Retirement System be amortized over a ten-year time
period; providing for education about election and merger for
members; requiring legal notice to members; providing for transfer of assets from the Teachers Defined Contribution
Retirement System to the State Teachers Retirement System upon
favorable vote for consolidation and merger; providing that
the Teachers Defined Contribution Retirement System shall not
exist upon favorable vote for consolidation and merger;
setting forth terms of merger and consolidation of the
Teachers Defined Contribution Retirement System and the State
Teachers Retirement System; providing for service credit in
the State Teachers Retirement; requiring members of Teachers
Defined Contribution Plan to pay additional amount to receive
credit upon merger; providing options and loans for members
moving to the remaining plan; providing service credit for
transferring member; addressing withdrawals and cash outs;
providing for election on the question of merger and
consolidation of the Teachers Defined Contribution Retirement
System and the State Teachers Retirement System; setting forth
requirements of election; allowing Consolidated Public
Retirement Board to contract directly for professional
services for purposes of performing its responsibilities
related to the merger and consolidation and conducting the
election; permitting only one election; addressing qualified
domestic relations orders; providing for vesting of members
and minimum guarantees of benefits for them; providing for due
process and right to appeal; providing for nonseverability of
the new article; and limitation on benefit increases in
Judges' Retirement System.
Be it enacted by the Legislature of West Virginia:
That §5-5-3 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §5-10-2, §5-10-15, §5-10-17, §5-10-21,
§5-10-22, §5-10-23, §5-10-26, §5-10-27, §5-10-31 and §5-10-44 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §5-10-22h; that §5-10A-2
and §5-10A-3 of said code be amended and reenacted; that said code
be amended by adding thereto a new section, designated §5-10A-11;
that §7-14D-5, §7-14D-7, §7-14D-13 and §7-14D-23 of said code be
amended and reenacted; that §12-8-2, §12-8-3, §12-8-4, §12-8-5,
§12-8-6, §12-8-7, §12-8-8 and §12-8-10 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §12-8-15; that §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-32, §15-2-33, §15-2-
34 and §15-2-37 of said code be amended and reenacted; that said
code be amended by adding thereto four new sections, designated
§15-2-25b, §15-2-31a, §15-2-31b and §15-2-39a; that §15-2A-2, §15-
2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11,
§15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of said code be
amended and reenacted; that said code be amended by adding thereto
four new sections, designated §15-2A-11a, §15-2A-11b, §15-2A-21 and
§15-2A-22; that §18-7A-3, §18-7A-14, §18-7A-17, §18-7a-18, §18-7a-
18a, §18-7A-23a, §18-7A-25, §18-7A-26 and §18-7A-34 of said code be
amended and reenacted; that said code be amended by adding thereto
three new sections, designated §18-7A-28e, §18-7A-39 and §18-7A-40;
that §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of code be amended and reenacted; that said code be further
amended and reenacted by adding thereto two new sections,
designated §18-7B-7a and §18-7B-20; that said code be amended by
adding thereto a new article, designated §18-7C-1, §18-7C-2, §18-
7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7, §18-7C-8, §18-7C-9,
§18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14; and that
said code be amended by adding thereto a new section, designated
§51-9-6c, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-3. Optional payment to employee in lump sum amount for
accrued and unused leave at termination of employment;
no withholding of any employee contribution deduction;
exception.
Every eligible employee, as defined in section one of this
article, at the time his or her active employment ends due to
resignation, death, retirement or otherwise, may be paid in a lump
sum amount, at his or her option, for accrued and unused annual
leave at the employee's usual rate of pay at the time. The lump
sum payment shall be made by the time of what would have been the
employee's next regular payday had his or her employment continued.
In determining the amount of leave entitlement, weekends, holidays
or other periods of normal, noncountable time shall be excluded, and no deductions may be made for contributions toward retirement
from lump sum payments for unused, accrued leave of any kind or
character, since no period of service credit is granted in relation
thereto; however, lump sum payment for unused, accrued leave of any
kind or character may not be a part of final average salary
computation; and where any deduction of employee contribution may
have been made previously, a refund of the amount deducted shall be
granted the former employee and made by the head of the respective
former employer spending unit: Provided, That the Superintendent
of the West Virginia State Police shall make deductions for
retirement contributions of members of the State Police Death,
Disability and Retirement Fund created and continued in section
twenty-six, article two, chapter fifteen of this code since
retirement benefits are based on cumulative earnings rather than
period of service.
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the
context, the following words and phrases as used in this article,
have the following meanings:
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, rounding to the upper cent for
any fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the Board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "Board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent credited him or her as provided by this article;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform
services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the House in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen, article ten, chapter five of
this code, and: Provided further, That members of the legislative
body of any political subdivision and judges of the State Court of Claims are employees receiving one year of service credit for each
one year term served and pro rated service credit for any partial
term served, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(12) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code or of
the West Virginia Code of State Regulations or the relevant
provisions of both the West Virginia Code and of the West Virginia
Code of State Regulations by the participating public employer that
has resulted in an underpayment or overpayment of contributions
required. A deliberate act contrary to the provisions of this
section by a participating public employer does not constitute
employer error.
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member, (including a member of the Legislature who participates
in the retirement system in the year one thousand nine hundred
seventy-one or thereafter), during any period of three consecutive
years of credited service contained within the member's ten years
of credited service immediately preceding the date his or her
employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited
service, the average of the annual rate of compensation received by
the member during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A)
or (B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one, or
in any year thereafter, his or her actual legislative compensation,
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code), in the year
one thousand nine hundred seventy-one, or in any year thereafter,
plus any other compensation he or she receives in any year from any
other participating public employer including the State of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one, who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating public employer including the State of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the
employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the Public Employees Retirement System before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the Public Employees Retirement System
to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the Regional
Community Policing Institute which participated in the Public
Employees Retirement System before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after the
first day of July, two thousand;
(20) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(22) "Required beginning date" means the first day of April of
the calendar year following the later of: (A) The calendar year in
which the member attains age seventy and one-half years of age; or
(B) the calendar year in which a member who has attained the age
seventy and one-half years of age and who ceases providing service
covered under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity
payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between the
first day of July, one thousand nine hundred sixty-one, and the
date an employer decides to become a participating member of the
Public Employees Retirement System; (2) service prior to the first
day of July, one thousand nine hundred sixty-one, for which the
employee is not entitled to prior service at no cost in accordance
with 162 CSR 5.13; and (3) service of any member of a legislative
body or employees of the State Legislature whose term of employment
is otherwise classified as temporary for which the employee is
eligible, but for which the employee did not elect to participate
at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this
state who have served in the Armed Forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active duty in the Armed Forces of the United
States when the duty was during any period of compulsory military service or during a period of armed conflict, as defined in this
section.
(2) In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or
enters the active service of the Armed Forces of the United States
during any period of compulsory military service or during a period
of armed conflict shall receive credited service for the time spent
in the Armed Forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the Armed Forces; and
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry into military service
during any period of compulsory military service or during periods
of armed conflict.
(3) Any member of the retirement system who enters the active
service of the Armed Forces of the United States during any period
of compulsory military service or during a period of armed conflict
shall receive the credit provided by this section regardless of
whether he or she was a public employee at the time of entering the
military service.
(4) If a member of the Public Employees Retirement System
enters the active service of the United States and serves during
any period of compulsory military service or during any period of
armed conflict, during the period of the armed service and until
the member's return to the employ of a participating public
employer, the member's contributions to the retirement system is suspended and any credit balance remaining in the member's deposit
fund shall be accumulated at regular interest: Provided, That
notwithstanding any provision in this article to the contrary, if
an employee of a participating political subdivision serving in the
military service during any period of compulsory military service
or armed conflict has accumulated credited service prior to the
last entry into military service, in an amount that, added to the
time in active military service while an employee equals nine or
more years, and the member is unable to resume employment with a
participating employer upon completion of duty due to death during
or as a result of active service, all time spent in active military
service, up to and including a total of five years, is considered
to be credited service and death benefits are vested in the member:
Provided, however, That the active service during the time the
member is an employee must be as a result of an order or call to
duty, and not as a result of volunteering for assignment or
volunteering to extend the time in service beyond the time required
by order or call.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of
armed conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the board
of trustees have final power to determine the period.
(7) The Board may consider a petition by any member whose tour
of duty, in a territory that would reasonably be considered hostile and dangerous, was extended beyond the period in which an armed
conflict was officially recognized, if that tour of duty commenced
during a period of armed conflict, and the member was assigned to
duty stations within the hostile territory throughout the period
for which service credit is being sought. The Board has the
authority to evaluate the facts and circumstances peculiar to the
petition, and rule on whether granting service credit for the
extended tour of duty is consistent with the objectives of this
article. In that determination, the Board may grant full credit
for the period under petition subject to the limitations otherwise
applicable, or to grant credit for any part of the period as the
board considers appropriate, or to deny credit altogether.
(8) The Board of Trustees may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of
this section.
(b) For purposes of this section, the following definitions
apply:
(1) "Period of armed conflict" means the Spanish-American War,
the Mexican border period, World War I, World War II, the Korean
conflict, the Vietnam era, the Persian Gulf War and any other
period of armed conflict by the United States, including, but not
limited to, those periods sanctioned by a declaration of war by the
United States Congress or by executive or other order of the
President.
(2) "Spanish-American War" means the period beginning on the twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, and includes the Philippine Insurrection, the Boxer Rebellion,
and in the case of a veteran who served with the United States
military forces engaged in hostilities in the Moro Province, means
the period beginning on the twenty-first day of April, one thousand
eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending
on the fifth day of April, one thousand nine hundred seventeen, in
the case of a veteran who during the period served in Mexico, on
its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day
of April, one thousand nine hundred seventeen, and ending on the
eleventh day of November, one thousand nine hundred eighteen, and
in the case of a veteran who served with the United States military
forces in Russia, means the period beginning on the sixth day of
April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on
the thirty-first day of December, one thousand nine hundred forty-
six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the
twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding 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. No military service
credit may be used in more than one retirement system administered
by the Consolidated Public Retirement Board and once used in any
system, may not be used again in any other system. The t 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 of this chapter, may
promulgate rules relating to contributions, benefits and service
credit to comply with Section 414(u) of the Internal Revenue Code.
§5-10-17. Retirement system membership.
The membership of the retirement system consists of the
following persons:
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who
continue in the employ of the participating public employer on and
after that date shall become members of the retirement system; and
all persons who become employees of a participating public employer
on or after that date shall thereupon become members of the system;
except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System
shall not include any person who is an active contributing member
of, or who has been retired by, any of the State Teachers
retirement systems, the Judges Retirement System, any Retirement
System of the West Virginia State Police, the Deputy Sheriff
Retirement System or any municipal retirement system for either, or
both, police or firefighter; and the Bureau of Employment Programs,
by the Commissioner of the Bureau, may elect whether its employees
will accept coverage under this article or be covered under the
authorization of a separate enactment: Provided, That the
exclusions of membership do not apply to any member of the State
Legislature, the Clerk of the House of Delegates, the Clerk of the
State Senate or to any member of the legislative body of any
political subdivision provided he or she once becomes a
contributing member of the retirement system: Provided, however, That any retired member of the State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System,
the Deputy Sheriff Retirement System and any retired member of any
municipal retirement system for either, or both, police or
firefighter may on and after the effective date of this section
become a member of the retirement system as provided in this
article, without receiving credit for prior service as a municipal
police officer or firefighter or as a member of the State Police
Death, Disability and Retirement Fund, the West Virginia State
Police Retirement System or the Deputy Sheriff Retirement System:
Provided further, That any retired member of the State Police
Death, Disability and Retirement Fund, the West Virginia State
Police Retirement System, the Deputy Sheriff Retirement System and
any retired member of any municipal retirement system for either,
or both, police or firefighters, who begins participation in the
retirement system established in this article on or after the first
day of July, two thousand five, may not receive a combined
retirement benefit in excess of one hundred five percent of the
member's highest annual salary earned while either a member of the
retirement system established in this article or while a member of
the other retirement system or systems from which he or she
previously retired when adding the retirement benefit from the
retirement system created in this article to the retirement benefit
received by that member from the other retirement system or systems
set forth herein from which he or she previously retired: And
provided further, That the membership of the retirement system does not include any person who becomes employed by the Prestera Center
for Mental Health Services, Valley Comprehensive Mental Health
Center, Westbrook Health Services or Eastern Panhandle Mental
Health Center on or after the first day of July, one thousand nine
hundred ninety-seven: And provided further, That membership of the
retirement system does not include any person who becomes a member
of the federal railroad retirement act on or after the first day of
July, two thousand.
(c) Any member of the State Legislature, the Clerk of the
House of Delegates, the Clerk of the State Senate and any employee
of the State Legislature whose employment is otherwise classified
as temporary and who is employed to perform services required by
the Legislature for its regular sessions or during the interim
between regular sessions and who has been or is employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the Clerk of the House
in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he or she notifies the retirement system
in writing of his or her intention to be a member of the system and
files a membership enrollment form as prescribed by the Board of
Trustees, and each person, upon filing his or her written notice to
participate in the retirement system, shall by that act authorize
the Clerk of the House of Delegates or the Clerk of the State
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct the member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after the deductions have been
made from the member's compensation, the deductions shall be
forwarded to the retirement system.
(d) If question arises regarding the membership status of any
employee, the Board of Trustees has the final power to decide the
question.
(e) Any individual who is a leased employee is not eligible to
participate in the system. For the purposes of this article, the
term "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 authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service
in force, of which at least three years are contributing service,
and who leaves the employ of a participating public employer prior
to his or her attaining age sixty years for any reason except his
or her disability retirement or death, is entitled to an annuity
computed according to section twenty-two of this article, as that
section was in force as of the date of his or her separation from
the employ of a participating public employer: Provided, That he or
she does not withdraw his or her accumulated contributions from the
members' deposit fund: Provided, however, That on and after the
first day of July, two thousand two, any person who becomes a new member of this retirement system shall, in qualifying for
retirement under this section, have five or more years of service,
all of which years shall be actual, contributory ones. His or her
annuity shall begin the first day of the calendar month next
following the month in which his or her application for same is
filed with the Board of Trustees on or after his or her attaining
age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has ten or
more years of credited service in force and who has attained age
fifty-five as of the date of his or her separation, may, prior to
the effective date of his or her retirement, but not thereafter,
elect to receive the actuarial equivalent of his or her deferred
retirement annuity as a reduced annuity commencing on the first day
of any calendar month between his or her date of separation and his
or her attainment of age sixty-two years and payable throughout his
or her life.
(c) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has twenty or
more years of credited service in force may elect to receive the
actuarial equivalent of his or her deferred retirement annuity as
a reduced annuity commencing on the first day of any calendar month
between his or her fifty-fifth birthday and his or her attainment
of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and twenty-seven-b of this article, and pursuant to rules promulgated
by the Board, any member who has thirty or more years of credited
service in force, at least three of which are contributing service,
and who elects to take early retirement, which for the purposes of
this subsection means retirement prior to age sixty, whether an
active employee or a separated employee at the time of application,
is entitled to the full computation of annuity according to section
twenty-two of this article, as that section was in force as of the
date of retirement application, but with the reduced actuarial
equivalent of the annuity the member would have received if his or
her benefit had commenced at age sixty when he or she would have
been entitled to full computation of benefit without any reduction.
(e) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, any member of the retirement system
may retire with full pension rights, without reduction of benefits,
if he or she is at least fifty-five years of age and the sum of his
or her age plus years of contributing service and limited credited
service, as defined in section two of this article, equals or
exceeds eighty. The member's annuity shall begin the first day of
the calendar month immediately following the calendar month in
which his or her application for the annuity is filed with the
Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article,
he or she shall receive a straight life annuity equal to one and five-tenths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her
credited service in force at the time of his or her retirement:
Provided, That the final average salary used in this calculation
does not include any lump sum payment for unused, accrued leave of
any kind or character. The credited service used for this
calculation may not include any period of limited credited service:
Provided, however, That after March one, one thousand nine hundred
seventy, all members retired and all members retiring shall receive
a straight life annuity equal to two percent of his or her final
average salary multiplied by the number of years, and fraction of
a year, of his or her credited service, exclusive of limited
credited service in force at the time of his or her retirement. In
either event, upon his or her retirement he or she has the right to
elect an option provided r in section twenty-four of this article.
All annuity payments shall commence effective the first day of the
month following the month in which a member retires or a member
dies leaving a beneficiary entitled to benefits and shall continue
to the end of the month in which the retirant or beneficiary dies,
and the annuity payments may not be prorated for any portion of a
month in which a member retires or retirant or beneficiary dies.
Any member receiving an annuity based in part upon limited credited
service is not eligible for the supplements provided in sections
twenty-two-a through twenty-two-d, inclusive, of this article.
(b) The annuity of any member of the Legislature who
participates in the retirement system as a member of the Legislature and who retires under this article or of any former
member of the Legislature who has retired under this article
(including any former member of the Legislature who has retired
under this article and whose annuity was readjusted as of the first
day of March, one thousand nine hundred seventy, under the former
provisions of this section) shall be increased from time to time
during the period of his or her retirement when and if the
legislative compensation paid under section two, article two-a,
chapter four of this code, to a member of the Legislature shall be
increased to the point where a higher annuity would be payable to
the retirant if he or she were retiring as of the effective date of
the latest increase in legislative compensation, but on the basis
of his or her years of credited service to the date of his or her
actual retirement.
§5-10-22h. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in the system as calculated in
the annual actuarial valuation for the plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system shall be fully amortized over no more than the six
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the six year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
(c) The state will not increase any existing benefits or
create any new benefits for active members due to retirement, death
or disability of the system unless the actuarial accrued liability
of the plan is at least eighty-five percent funded as of the last
day of the prior fiscal year as determined in the actuarial
valuation for the plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year
as of the date the improvement is adopted by the Legislature. Any
additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized
over not more than ten years following the date the increase in benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the ten year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
§5-10-23. Terminal payment following retirement.
(a) This section provides for the payment of the balance in
a retired member's account in the event that all claims to benefits
payable to, or on behalf of, a member expire before his or her
member account has been fully exhausted. The expiration of the
rights to benefits would be on the occasion of either the death of
the retired member drawing benefits under a straight life annuity,
or the death of a survivor annuitant drawing benefits under any
optional form of benefit selected by the retired member, whichever
occurs later.
(b) In the event that all claims to benefits payable to, or on
behalf of, a retired member expire, and the accumulated
contributions exceed the accumulated net benefit payments paid to
or on behalf of the retired member, the balance in the retired
member's account shall be paid to the person or persons as the
retired member has nominated by written designation duly executed
and filed with the board of trustees. If there is no designated
person or persons surviving the retired member following the
expiration of claims, the excess of the accumulated contributions over the accumulated net benefit, if any, shall be paid to the
retired member's estate.
§5-10-26. Reexamination of disability retirants; reemployment;
adjustment of annuity for earnings.
(a) At least once each year during the first five years
following the retirement of a member on account of disability, as
provided in section twenty-five of this article, and at least once
in each three-year period thereafter, the Board may require a
disability retirant, who has not attained age sixty years, to
undergo a medical examination to be made by or under the direction
of a physician designated by the board, or to submit a statement
signed by the disability retirant's physician certifying continued
disability, or both, and a copy of the disability retirants's
annual statement of earnings. If the retirant refuses to submit to
the medical examination or provide the certification or statement
in any period, his or her disability annuity may be discontinued by
the Board until the retirant complies. If the refusal continues for
one year, all the retirant's rights in and to the annuity may be
revoked by the board. If, upon medical examination of a disability
retirant, the physician reports to the board that the retirant is
physically able and capable of resuming employment with a
participating public employer, the retirant shall be returned to
the employ of the participating public employer from whose
employment he or she retired and his or her disability annuity
shall terminate: Provided, That the Board concurs in the
physician's report.
(b) A disability retirant who is returned to the employ of a
participating public employer shall again become a member of the
retirement system and the retirant's credited service in force at
the time of his or her retirement shall be restored.
(c) If a review of the disability retirant's annual statement
of earnings or other financial information as required by the Board
determines that the disability retirant's earned income for the
preceding year exceeds the substantial gainful activity amount as
defined by the United States Social Security Administration, the
disability retirant's annuity shall be terminated by the Board,
upon recommendation of the Board's disability review committee, on
the first day of the month following the Board's action. Any
person who wishes to reapply for disability retirement and whose
disability retirement annuity has been terminated by the Board may
do so within ninety days of the effective date of termination by
requesting an examination at the applicant's expense by an
appropriate medical professional chosen by the Board.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving a surviving spouse; but (2) leaves surviving him or her a
child who is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory
to the Board; and (3) has named the disabled child as sole beneficiary, the disabled child shall immediately receive an
annuity computed in the same manner in all respects as if the
member had: (1) Retired the day preceding the date of his or her
death, notwithstanding that he or she might not have attained age
sixty or sixty-two years, as the case may be; (2) elected option A
provided for in section twenty-four of this article; and (3)
nominated his or her disabled child as beneficiary. A member or
former member with ten or more years of credited service, who does
not leave surviving him or her a spouse or a disabled child, may
elect to have the preretirement death benefit paid as a return of
accumulated contributions in a lump sum amount to any beneficiary
or beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of
credited service, or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies; and (2)
leaves a surviving spouse, the surviving spouse shall immediately
receive an annuity computed in the same manner in all respects as
if the the member had: (1) Retired the day preceding the date of
his or her death, notwithstanding that he or she might not have
attained age sixty or sixty-two years, as the case may be; (2)
elected option A provided in section twenty-four of this article;
and (3) nominated his or her surviving spouse as beneficiary.
However, the surviving spouse shall have the right to waive the
annuity provided in this section: Provided, That he or she
executes a valid and notarized waiver on a form provided by the Board and that the member or former member attests to the waiver.
If the waiver is presented to and accepted by the Board, the member
or former member, may nominate a beneficiary who has an insurable
interest in the member's or former member's life. As an
alternative to annuity option A, the member or former member may
elect to have the preretirement death benefit paid as a return of
accumulated contributions in a lump sum amount to any beneficiary
or beneficiaries he or she chooses in the event a waiver, as
provided in this section, has been presented to and accepted by the
Board.
(c) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving surviving him or her a spouse; but (2) leaves surviving him
or her an infant child or children; and (3) does not have a
beneficiary nominated as provided in subsection (a) of this
section, the infant child or children are entitled to an annuity to
be calculated as follows: The annuity reserve shall be calculated
as though the member had retired as of the date of his or her
decease and elected a straight life annuity and the amount of the
annuity reserve shall be paid in equal monthly installments to the
member's infant child or children until the child or children
attain age twenty-one or sooner marry or become emancipated;
however, in no event shall any child or children receive more than
two hundred fifty dollars per month each. The annuity payments shall be computed as of the date of the death of the member and the
amount of the annuity shall remain constant during the period of
payment. The annual amount of the annuities payable by this
section shall not exceed sixty percent of the deceased member's
final average salary.
(d) In the event any member or former member does not have ten
or more years of credited service, no preretirement death annuity
may be authorized, owed or awarded under this section.
§5-10-31. Employers accumulation fund; employers contributions.
(a) The employers accumulation fund is hereby continued. It
shall be the fund in which shall be accumulated the contributions
made by the participating public employers to the retirement
system, and from which transfers shall be made as provided in this
section.
(b) Based upon the provisions of section thirteen of this
article, the participating public employers' contributions to the
retirement system, as determined by the Consolidated Public
Retirement Board by legislative rule promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, shall be a percent of the members' total annual compensation
related to benefits under this retirement system. In determining
the amount, the Board shall give consideration to setting the
amount at a sum equal to an amount which, if paid annually by the
participating public employers, will be sufficient to provide for
the total normal cost of the benefits expected to become payable to
all members and to amortize any unfunded liability found by application of the actuarial funding method chosen for that purpose
by the Consolidated Public Retirement Board, over a period of years
determined actuarially appropriate. When proposing a rule for
promulgation which relates to the amount of employer contribution,
the Board may promulgate emergency rules pursuant to the provisions
of article three, chapter twenty-nine-a of this code, if the
inability of the board to increase employer contributions will
detrimentally affect the actuarial soundness of the retirement
system. A signed statement from the state actuary shall accompany
the statement of facts and circumstances constituting an emergency
which shall be filed in the State Register. For purposes of this
section, subdivision (2), subsection (b), section fifteen-a,
article three, chapter twenty-nine-a of this code is not applicable
to the Secretary of State's determination of whether an emergency
rule should be approved.
§5-10-44. Correction of errors.
If any change or employer error in the records of any
participating public employer or the retirement system results in
any person receiving from the system more or less than he or she
would have been entitled to receive had the records been correct,
the Board shall correct the error, and as far as is practicable
shall adjust the payment of the benefit in a manner that the
actuarial equivalent of the benefit to which the person was
correctly entitled shall be paid. Any employer error resulting in
an underpayment to the retirement system may be corrected by the
employee remitting the required employee contribution and the participating public employer remitting the required employer
contribution. Interest shall accumulate in accordance with the
Legislative Rule 162 CSR 7 concerning retirement board refund,
reinstatement and loan interest factors, and any accumulating
interest owed on the employee and employer contributions resulting
from the employer error shall be the responsibility of the
participating public employer. The participating public employer
may remit total payment and the employee reimburse the
participating public employer through payroll deduction over a
period equivalent to the time period during which the employer
error occurred.
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;
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
§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.
(a) 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 may issue a notice:
(1) If more than two years have elapsed since the judgment of
conviction upon which the notice is based became final; or
(2) In cases described in paragraph (3), subsection (e),
section two of this article, if more than two years have elapsed
since, as the case may be: the plea bargaining agreement or the
grant of immunity; or
(3) With respect to conduct which occurred prior to the
effective date of this article.
(b) 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 considered complete upon mailing and a completed
receipt constitute proofs of the receipt of the notice. The notice
shall inform the participant or beneficiary that he or she has the
right to demand that the Board seek a determination in circuit
court of his or her eligibility for benefits and membership in the
retirement plan by notifying the Board of the 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 thereof 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 attorneys of the counties of this state shall,
within sixty days of a conviction or a plea agreement meeting the
definition of less than honorable service, report the conviction or
plea agreement to the executive director of the Board, including
with the report the indictment, plea agreement and any order
finding the defendant guilty.
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-5. Members.
(a) Any deputy sheriff first employed by a county in covered employment after the effective date of this article shall be a
member of this retirement system and 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 deputy sheriff employed in covered employment on the
effective date of this article shall within six months of that
effective date notify in writing both the county commission in the
county in which he or she is employed and the Board, of his or her
desire to become a member of the plan: Provided, That this time
period is extended to the thirtieth day of January, one thousand
nine hundred ninety-nine, in accordance with the decision of the
Supreme Court of Appeals in West Virginia Deputy Sheriffs'
Association, et al v. James L. Sims, et al, No. 25212: Provided,
however, That any deputy sheriff employed in covered employment on
the effective date of this article has an additional time period
consisting of the ten-day period following the day after which the
amended provisions of this section become law to notify in writing
both the county commission in the county in which he or she is
employed and the Board of his or her desire to become a member of
the plan. Any deputy sheriff 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 deputy
sheriff remains employed in covered employment in this plan:
Provided further, That any deputy sheriff who elects during the time period from the first day of July, one thousand nine hundred
ninety-eight, to the thirtieth day of January, one thousand nine
hundred ninety-nine, or who so elects during the ten-day time
period occurring immediately following the day after the day the
amendments made during the one thousand nine hundred ninety-nine
legislative session become law, to transfer from the Public
Employees Retirement System to the plan created in this article
shall contribute to the plan created in this article at the rate
set forth in section seven of this article retroactive to the first
day of July, one thousand nine hundred ninety-eight. Any deputy
sheriff 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 county employees but is
ineligible for this plan regardless of any subsequent termination
of employment and rehire.
(c) Any deputy sheriff employed in covered employment on the
effective date of this article who has timely elected to transfer
into this plan as provided in subsection (b) of this section shall
be given credited service at the time of transfer for all credited
service then standing to the deputy sheriff's service credit in 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 deputy sheriff.
All the credited service standing to the transferring deputy
sheriff's credit in the Public Employees Retirement Fund System at
the time of transfer into this plan shall be transferred into the plan created by this article, and the transferring deputy sheriff
shall be given the same credit for the purposes of this article for
all service transferred from the Public Employees Retirement System
as that transferring deputy sheriff would have received from the
Public Employees Retirement System as if the transfer had not
occurred. In connection with each transferring deputy sheriff
receiving credit for prior employment as provided in this
subsection, a transfer from the Public Employees Retirement System
to this plan shall be made pursuant to the procedures described in
section eight of this article: Provided, That a member of this
plan who has elected to transfer from the Public Employees
Retirement System into this plan pursuant to subsection (b) of this
section may not, after having transferred into and become an active
member of this plan, reinstate to his or her credit in this plan
any service credit relating to periods of nondeputy sheriff service
which were withdrawn from the Public Employees Retirement System
prior to his or her elective transfer into this plan.
(d) Any deputy sheriff who was employed as a deputy sheriff
prior to the effective date of this article, but was not employed
as a deputy sheriff on the effective date of this article, shall
become a member upon rehire as a deputy sheriff. For purposes of
this subsection, the member's years of service and credited service
in the Public Employees Retirement System prior to the effective
date of this article shall not be counted for any purposes under
this plan unless: (1) The deputy sheriff has not received the
return of his or her accumulated contributions in the Public Employees Retirement 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 section thirteen of
this article. If the conditions of subdivision (1) or (2) of this
subsection are met, all years of the deputy sheriff's covered
employment shall be counted as years of service for the purposes of
this article.
(e) Once made, the election provided for in this section is
irrevocable. All deputy sheriffs first employed after the
effective date and deputy sheriffs electing to become members as
described in this section shall be members as a condition of
employment and shall make the contributions required by section
seven of this article.
(f) 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.
§7-14D-7. Members' contributions; employer contributions.
(a) 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. An additional amount shall be paid to the Fund by the county commission of the county in which
the member is employed in covered employment in an amount
determined by the Board: Provided, That in no year may the total
of the contributions provided in this section, to be paid by the
county commission, exceed ten and one-half percent of the total
payroll for the members in the employ of the county commission for
the preceding fiscal year. If the Board finds that the benefits
provided by this article can be actually funded with a lesser
contribution, then the Board shall reduce the required member or
employer contributions or both. The sums withheld each calendar
month shall be paid to the Fund no later than fifteen days
following the end of the calendar month.
(b) Any active member who has concurrent employment in an
additional job or jobs and the additional employment requires the
deputy sheriff 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 make an
additional contribution to the Fund of eight and one-half percent
of his or her monthly salary earned from any additional employment
which requires the deputy sheriff to be a member of another
retirement which is administered by the Consolidated Public
Retirement Board pursuant to article ten-d, chapter five of this
code. An additional amount shall be paid to the Fund by the
concurrent employer for which the member is employed in an amount
determined by the Board: Provided, That in no year may the total
of the contributions provided in this section, to be paid by the concurrent employer, exceed ten and one-half percent of the monthly
salary of the employee. If the Board finds that the benefits
provided by this article can be funded with a lesser contribution,
then the Board shall reduce the required member or employer
contributions or both. The sums withheld each calendar month shall
be paid to the Fund no later than fifteen days following the end of
the calendar month.
§7-14D-13. 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 of this plan who ceases employment in covered
employment and active participation in this plan, and who
thereafter becomes reemployed in covered employment may not receive
any credited service for any prior withdrawn accumulated
contributions from either this plan or the Public Employees
Retirement System relating to the prior covered employment unless
following his or her return to covered employment and active
participation in this plan, the member redeposits in this plan the
amount of the withdrawn accumulated contributions submitted on
salary earned while a deputy sheriff, 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 service in covered employment as if no refund had been made.
The repayment authorized by this subsection shall be made in a lump
sum within sixty months of the deputy sheriff's reemployment in
covered employment or if later, within sixty months of the
effective date of this article.
(c) A member of this plan who has elected to transfer from the
Public Employees Retirement System into this plan pursuant to
subsection (b) of section five of this article may not, after
having transferred into and become an active member of this plan,
reinstate to his or her credit in this plan any service credit
relating to periods of nondeputy sheriff service which were
withdrawn from the Public Employees Retirement System plan
prior to
his or her elective transfer into this plan.
(d) 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 subsection (a) of this section, or to choose not to withdraw
his or her accumulated contribution and to receive retirement
income payments upon attaining normal retirement age.
(e) Notwithstanding any other provision of this article,
forfeitures under the plan shall not be applied to increase the
benefits any member would otherwise receive under the plan.
§7-14D-23. Loans to members.
(a) A member who is not yet receiving disability or retirement income benefits from the plan may borrow from the plan no more than
one time in any year an amount up to one half of his or her
accumulated contributions, but not less than five hundred dollars
nor more than eight thousand dollars: Provided, That the maximum
amount of any loan shall not exceed the lesser of the following:
(1) Eight thousand dollars; or (2) fifty percent of his or her
accumulated contributions. No member is eligible for more than one
outstanding loan at any time. No loan may be made from the plan if
the Board determines that the loans constitute more than fifteen
percent of the amortized cost value of the assets of the plan as of
the last day of the preceding plan year. The Board may discontinue
the loans any time it determines that cash flow problems might
develop as a result of the loans. Each loan shall be repaid
through monthly installments over periods of six through sixty
months and carry interest on the unpaid balance and an annual
effective interest rate that is two hundred basis points higher
than the most recent rate of interest used by the Board for
determining actuarial contributions levels: Provided, however,
That interest charged shall be commercially reasonable in
accordance with the provisions of Section 72(p)(2) of the Internal
Revenue Code and federal regulations issued thereunder. Monthly
loan payments shall be calculated to be as nearly equal as possible
with all but the final payment being an equal amount. An eligible
member may make additional loan payments or pay off the entire loan
balance at any time without incurring any interest penalty. At the
member's option, the monthly loan payment may include a level premium sufficient to provide declining term insurance with the
plan as beneficiary to repay the loan in full upon the member's
death. If a member declines the insurance and dies before the loan
is repaid, the unpaid balance of the loan shall be deducted from
the lump sum insurance benefits payable under section twenty-one of
this article.
(b) A member with an unpaid loan balance who wishes to retire
may have the loan repaid in full by accepting retirement income
payments reduced by deducting from the actuarial reserve for the
accrued benefit the amount of the unpaid balance and then
converting the remaining of the reserve to a monthly pension
payable in the form of the annuity desired by the member.
(c) The entire unpaid balance of any loan, and interest due
thereon, shall at the option of the Board become due and payable
without further notice or demand upon the occurrence with respect
to the borrowing member of any of the following events of default:
(1) Any payment of principal and accrued interest on a loan remains
unpaid after they become due and payable under the terms of the
loan or after the grace period established in the discretion of the
Retirement Board; (2) the borrowing member attempts to make an
assignment for the benefit of creditors of his or her benefit under
the retirement system; or (3) any other event of default set forth
in rules promulgated by the Board pursuant to the authority granted
in section one, article ten-d, chapter five of this code:
Provided, That any offset of an unpaid loan balance shall be made
only at such time as the member is entitled to receive a distribution under the plan.
(d) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Board may determine.
(e) Notwithstanding anything in this section to the contrary,
the loan program authorized by this section shall comply with the
provisions of Section 72(p)(2) and Section 401 of the Internal
Revenue Code and the federal regulations issued thereunder. The
Board may: (a) Apply and construe the provisions of this section
and administer the plan loan program in such a manner as to comply
with the provisions of Sections 72(p)(2) and Section 401 of the
Internal Revenue Code; (b) adopt plan loan policies or procedures
consistent with these federal law provisions; and (c) take any
actions it considers necessary or appropriate to administer the
plan loan program created under this section in accordance with
these federal law provisions. The Board is further authorized in
connection with the plan loan program to take any actions that may
at any time be required by the Internal Revenue Service regarding
compliance with the requirements of Section 72(p)(2) or Section 401
of the Internal Revenue Code, notwithstanding any provision in this
article to the contrary.
(f) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any deputy sheriff who becomes a member of the Deputy Sheriff
Retirement System on or after the first day of July, two thousand
five.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 8. PENSION LIABILITY REDEMPTION.
§12-8-2. Declaration of policy; legislative findings; legislative
intent.
The Legislature finds and declares that:
(a) The Legislature has established a number of pension
systems, including the death, disability and retirement fund of the
West Virginia State Police established in article two, chapter
fifteen of this code; the Judges' Retirement System established in
article nine, chapter fifty-one of this code; and the Teachers
Retirement System established in article seven-a, chapter eighteen
of this code, each of which is a trust for the benefit of the
participating public employees.
(b)This article provides for the redemption of the unfunded
actuarial accrued liability of each pension system through the
issuance of bonds for the purpose of: (i) Providing for the safety
and soundness of the pension systems; and (ii) realizing savings
over the remaining term of the amortization schedules of the
unfunded actuarial accrued liabilities and thereby achieve
budgetary savings.
§12-8-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Bonds" means bonds, notes, refunding notes and bonds, or
other obligations of the state issued by the Governor pursuant to
this article.
(2) "Consolidated Public Retirement Board" means the Board
created to administer all public retirement plans in this state
under article ten-d, chapter five of this code and any board or
agency that succeeds to the powers and duties of the Consolidated
Public Retirement Board.
(3) "Costs" include, but are not limited to, amounts necessary
to fund any capitalized interest funds and any reserve funds, any
costs relating to the issuance and determination of the validity of
the bonds, fees for obtaining bond insurance, credit enhancements
or liquidity facilities, administrative costs, fees incurred
pursuant to subsection (f), section five of this article and costs
attributable to the agreements described in section six of this
article.
(4) "Death, Disability and Retirement Fund" means the Death,
Disability and Retirement Fund of the West Virginia State Police
created by article two, chapter fifteen of this code.
(5) "Department of administration" means the Department
established pursuant to article one, chapter five-a of this code
and any board or agency that succeeds to the powers and duties of
the Department of Administration.
(6) "Executive order" means an executive order issued by the
Governor to authorize the issuance of bonds as provided in this
article.
(7) "Investment management board" means the Board established
under article six, chapter twelve of this code, and any board or
agency that succeeds to the powers and duties of the Investment Management Board.
(8) "Judges' Retirement System" means the Judicial Retirement
System created under article nine, chapter fifty-one of this code.
(9) "Obligation holders" means any holder or owner of any
bond, any trustee or other fiduciary for any holder, or any
provider of a letter of credit, policy of bond insurance, surety,
or other credit enhancement or liquidity facility or swap relating
to any bond.
(10) "Pension Liability Redemption Fund" means the special
account in the State Treasury created pursuant to subsection (a),
section eight of this article.
(11) "Pension Liability Redemption Payments" means: (a) The
principal of, premium, if any, and interest on any outstanding
bonds issued pursuant to this article; and (b) any other amounts
required to be paid pursuant to the terms of any outstanding bonds,
any indenture authorized pursuant to this article and any other
agreement entered into between the Governor and any obligation
holder.
(12) "Pension systems" means the Judges' Retirement System,
the Death, Disability and Retirement Fund and the Teachers
Retirement System.
(13) "Refund" or "refunding" means the issuance and sale of
bonds the proceeds of which are used or are to be used for the
payment, defeasance or redemption of outstanding bonds upon or
prior to maturity.
(14) "Refunding bonds" means bonds issued for the payment, defeasance or redemption of outstanding bonds upon or prior to
maturity.
(15)"Teachers Retirement System" means the retirement system
established in article seven-a, chapter eighteen of this code.
(16) "Normal cost" means the value of benefits accruing for
the current valuation year under the actuarial cost method.
(17) "Actuarial cost method" means a mathematical process in
which the cost of benefits projected to be paid after a period of
active employment has ended is allocated over the period of active
employment during which the benefits are earned.
(18) "Unfunded actuarial accrued liability" means the
aggregate of the unfunded actuarial accrued liabilities of the
pension systems, with the unfunded actuarial accrued liability of
each pension system being calculated in an actuarial valuation
report provided by the Consolidated Public Retirement Board to the
Department of Administration pursuant to section four of this
article.
(19) "West Virginia State Police Retirement System" means the
retirement system established in article two-a, chapter fifteen of
this code.
(20) "West Virginia Public Employees Retirement System" means
the retirement system established in article ten, chapter five of
this code.
(21) "West Virginia State Sponsored Pension Systems" means the
pension systems as defined in subdivision twelve of this
subsection, the West Virginia Public Employees Retirement System and the West Virginia State Police Retirement System.
§12-8-4. Issuance of bonds; determination of unfunded actuarial
accrued liability.
(a) The Governor may, as provided by this article, issue the
bonds authorized in this section at a time or times as provided by
a resolution adopted by the Legislature to fund all or a portion of
the unfunded actuarial accrued liability, the bonds to be payable
from and secured by moneys deposited in the Pension Liability
Redemption Fund. Any bonds issued pursuant to this article, other
than refunding bonds, shall be issued no later than five years
after the date of adoption of the resolution of the Legislature
authorizing the issuance of the bonds referred to in this section.
(b) The aggregate principal amount of bonds issued pursuant to
the provisions of this article is limited to no more than the
lesser of the following: (1) The principal amount necessary, after
deduction of costs, underwriter's discount and original issue
discount, if any, to fund not in excess of one hundred percent of
the unfunded actuarial accrued liability of the Death, Disability
and Retirement Fund of the West Virginia State Police established
in article two, chapter fifteen of this code, one hundred percent
of the unfunded actuarial accrued liability of the Judges'
Retirement System established in article nine, chapter fifty-one of
this code, and ninety-five percent of the unfunded actuarial
accrued liability of the Teachers Retirement System established in
article seven-a, chapter eighteen of this code, as certified by the
Consolidated Public Retirement Board to the Department of Administration pursuant to subsection (e) of this section; or (2)
five billion five hundred million dollars; but in no event shall
the aggregate principal amount of bonds issued exceed the principal
amount necessary, after deduction of costs, underwriter's discount
and original issue discount, if any, to fund not in excess of the
total unfunded actuarial accrued liability, as certified by the
Consolidated Public Retirement Board to the Department of
Administration pursuant to subsection (e) of this section.
(c) The costs of issuance, excluding fees for ratings, bond
insurance, credit enhancements and liquidity facilities, plus
underwriter's discount and any other costs associated with the
issuance shall not exceed, in the aggregate, the sum of one percent
of the aggregate principal amount of bonds issued.
(d) The limitation on the aggregate principal amount of bonds
provided in this section shall not preclude the issuance of bonds
from time to time or in one or more series.
(e) No later than ten days after receipt of a request from the
Department of Administration, the Consolidated Public Retirement
Board shall provide the Department of Administration with a
certified statement of the amount of each pension system's unfunded
actuarial accrued liability calculated in an actuarial valuation
report that establishes the amount of the unfunded actuarial
accrued liability as of a date specified by the Department of
Administration, based upon each pension system's most recent
actuarial valuation as completed by the Consolidated Public
Retirement Board.
(f) No later than fifteen days after receipt of a request from
the Governor, the Department of Administration shall provide the
Governor with a certification of the maximum aggregate principal
amount of bonds that may be issued at that time pursuant to
subsection (b) of this section.
§12-8-5. Method of bond issuance; manner of sale of bonds;
authority of department of administration.
(a) Upon the adoption of a resolution by the Legislature
authorizing the issuance of the bonds in the amount and upon the
terms specified in the resolution, the bonds shall be authorized by
an executive order issued by the Governor. The executive order
shall be received by the Secretary of State and filed in the State
Register pursuant to section three, article two, chapter
twenty-nine-a of this code. The Governor, either in the executive
order authorizing the issuance of the bonds or by the execution and
delivery by the Governor of a trust indenture or agreement
authorized in the executive order, shall stipulate the form of the
bonds, whether the bonds are to be issued in one or more series,
the date or dates of issue, the time or times of maturity, the rate
or rates of interest payable on the bonds, which may be at fixed
rates or variable rates and which interest may be current interest
or may accrue, the denomination or denominations in which the bonds
are issued, the conversion or registration privileges applicable to
some or all of the bonds, the sources and medium of payment and
place or places of payment, the terms of redemption, any privileges of exchangeability or interchangeability applicable to the bonds,
and the entitlement of obligation holders to priorities of payment
or security in the amounts deposited in the pension liability
redemption fund. Bonds shall be signed by the Governor and
attested by the Secretary of State, by either manual or facsimile
signatures.
(b) The bonds may be sold at public or private sale at a price
or prices determined by the Governor. The Governor may enter into
any agreements necessary or desirable to effectuate the purposes of
this section, including agreements to sell bonds to any person and
to comply with the laws of any jurisdiction relating thereto.
(c) The Governor, in the executive order authorizing the
issuance of bonds or by the execution and delivery by the Governor
of a trust indenture or agreement authorized in the executive
order, may covenant as to the use and disposition of or pledge of
funds made available for pension liability redemption payments or
any reserve funds established pursuant to the executive order or
established pursuant to any indenture authorized by the executive
order. All costs may be paid by or upon the order of the Governor
from amounts received from the proceeds of the bonds and from
amounts received pursuant to section eight of this article.
(d) Bonds may be issued by the Governor upon resolution
adopted by the Legislature authorizing the same.
(e) Neither the Governor, the Secretary of State, nor any
other person executing or attesting the bonds or any agreement
authorized in this article are personally liable with respect to payment of any pension liability redemption payments.
(f) Notwithstanding any other provision of this code, the
Department of Administration, in the Department's discretion: (i)
Shall select, employ and compensate one or more persons or firms to
serve as bond counsel or cobond counsel who shall be responsible
for the issuance of a final approving opinion regarding the
legality of the bonds issued pursuant to this article; (ii) may
select, employ and compensate one or more persons or firms to serve
as underwriter or counderwriter for any issuance of bonds pursuant
to this article; and (iii) may select, employ and compensate one or
more fiduciaries, financial advisors and experts, other legal
counsel, placement agents, appraisers, actuaries and any other
advisors, consultants and agents necessary to effectuate the
purposes of this article. Notwithstanding the provisions of
article three, chapter five of this code, bond counsel may
represent the state in court, render advice and provide other legal
services as may be requested by the Governor or the Department of
Administration regarding any bond issuance pursuant to this article
and all other matters relating to the bonds.
§12-8-6. Contracts with obligation holders; provisions of bonds
and trust indentures and other agreements.
(a) The Governor may enter into contracts with obligation
holders and the Governor shall comply fully with the terms and
provisions of any contracts made with obligation holders.
(b) In addition and not in limitation to the other provisions
of this section, in connection with any bonds issued pursuant to this article, the Governor may enter into: (i) commitments to
purchase or sell bonds and bond purchase or sale agreements; (ii)
agreements providing for credit enhancement or liquidity, including
revolving credit agreements, agreements establishing lines of
credit or letters of credit, insurance contracts, surety bonds and
reimbursement agreements; (iii) agreements to manage interest rate
exposure and the return on investments, including interest rate
exchange agreements, interest rate cap, collar, corridor, ceiling
and floor agreements, option, rate spread or similar exposure
agreements, float agreements and forward agreements; (iv) stock
exchange listing agreements; and (v) any other commitments,
contracts or agreements approved by the Governor.
(c) The Governor may covenant as to the bonds to be issued and
as to the issuance of the bonds, in escrow or otherwise, provide
for the replacement of lost, destroyed or mutilated bonds, covenant
against extending the time for the payment of bonds or interest on
the bonds and covenant for the redemption of bonds and provide the
terms and conditions of the redemption.
(d) Except as otherwise provided in any executive order or in
this article, the terms of the executive order and of this article
in effect on the date the bonds are issued constitute a contract
between the state and obligation holders. Any representation,
warranty or covenant made by the Governor in the executive order,
any indenture of trust or trust agreement authorized by the
executive order, any bond or any other contract entered into
pursuant to this article with any obligation holder shall be a representation, warranty or covenant made by the state.
(e) The Governor may vest in the obligation holders, or any
portion of them, the right to enforce the payment of the bonds or
agreements authorized in this article or any covenants securing or
relating to the bonds or the agreements. The Governor may
prescribe the procedure, if any, by which the terms of any contract
with obligation holders may be supplemented, amended or abrogated,
prescribe which supplements or amendments will require the consent
of obligation holders and the portion of obligation holders
required to effect the consent and prescribe the manner in which
the consent may be given.
§12-8-7. Proceeds from the sale of bonds.
(a) The proceeds from the sale of bonds, other than refunding
bonds, issued pursuant to this article, after payment of any costs
payable at time of issuance of the bonds, shall be paid to the
Consolidated Public Retirement Board to fund the amount of the
unfunded actuarial accrued liability for the pension systems
provided for by the bonds.
(b) Prior to the time of issuance, when requested by the
Department of Administration, the Investment Management Board shall
prepare and submit to the Governor, the Speaker of the House of
Delegates, the President of the Senate and the Department of
Administration the short-term and long-term investment strategies
that the Investment Management Board intends to follow for
investment of the plan assets of the pension systems, as adjusted
by the deposit of the proceeds of bonds issued pursuant to this article, which bond proceeds shall be invested pursuant to section
six of article ten of the Constitution of West Virginia and
otherwise as provided by law.
§12-8-8. Continuation of Pension Liability Redemption Fund;
disbursements to pay pension liability redemption
payments.
(a) There is hereby continued a special account in the State
Treasury to be administered by the State Treasurer, which is
designated and known as the "Pension Liability Redemption Fund,"
into which shall be deposited any and all amounts appropriated by
the Legislature or funds from any other source whatsoever which are
made available by law for the purpose of making pension liability
redemption payments. All funds deposited to the credit of the
Pension Liability Redemption Fund shall be held in a separate
account and all money belonging to the Fund shall be deposited in
the State Treasury to the credit of the Pension Liability
Redemption Fund.
(b) On or before the first day of November of each year, the
Department of Administration shall certify to the Governor and the
State Treasurer and deliver to the Speaker of the House of
Delegates and the President of the Senate a certification as to the
amount of pension liability redemption payments to be appropriated
for the next fiscal year in order to pay in full when due all
pension liability redemption payments that will become due during
the next fiscal year. The certification shall include the amount and due date of each pension liability redemption payment. All
moneys appropriated by the Legislature in accordance with a
certification made pursuant to this subsection shall be deposited
into the Pension Liability Redemption Fund.
(c) The State Treasurer shall pay to the trustee under the
trust indenture or agreement executed by the Governor all pension
liability redemption payments as and when due. The payments shall
be transferred by electronic funds transfer, unless some other
manner of funds transfer is specified by the Governor. No payments
shall be required for bonds that are defeased or bonds for which a
deposit sufficient to provide for all payments on the bonds has
been made.
§12-8-10. State pledges and covenants.
(a) The state of West Virginia covenants and agrees with the
obligation holders, and the indenture shall so state, that the
bonds issued pursuant to this article are a direct and general
obligation of the state of West Virginia; that the pension
liability redemption payments will be included in each budget along
with all other amounts for payment and discharge of the principal
of and interest on state debt; that the full faith and credit of
the state is hereby pledged to secure the payment of the principal
of and interest on the bonds; and that annual state taxes shall be
collected in an amount sufficient to pay the pension liability
redemption payments as they become due and payable from the Pension
Liability Redemption Fund.
(b) The state hereby pledges and covenants with the obligation holders, and the indenture shall so state, that the state will not
limit or alter the rights, powers or duties vested in any state
official, or that state official's successors or assigns, and the
obligation holders in a way that will inhibit any state official,
or that state official's successors or assigns, from carrying out
the state official's rights, powers or duties under this article,
nor limit or alter the rights, powers or duties of any state
official, or that state official's successors or assigns, in any
manner which would jeopardize the interest of any obligation
holder, or inhibit or prevent performance or fulfillment by any
state official, or that state official's successors or assigns,
with respect to the terms of any agreement made with any obligation
holder pursuant to section six of this article.
(c) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, any changes in unfunded actuarial accrued
liability in any of the West Virginia state sponsored pension
systems resulting from the actual experience for that system
occurring during any fiscal year due to net differences between the
expected and actual experience for that year will be fully
amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net actuarial gain or loss to the Governor. The
certification shall be made on or before the thirty-first day of
January of each year. The net actuarial gain or loss for the
fiscal year shall be determined from the actuarial valuation authorized by the Consolidated Public Retirement Board for each
plan completed at as of the first day of the following fiscal year.
Following the receipt of the certification of net actuarial gain or
loss, the Governor shall submit the amount of the amortization
payment or credit each year for the pension systems as part of the
annual budget submission or in an executive message to the
Legislature. The Consolidated Public Retirement Board shall
include the ten year amortization in the determination of the
adequacy of the employer contribution percentage for the West
Virginia Public Employees Retirement System and West Virginia State
Police Retirement System.
(d) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, if the unfunded actuarial accrued liability
of any of the West Virginia state sponsored pension systems
increases or decreases due to changes in actuarial assumptions
adopted by the Consolidated Public Retirement Board for completion
of the annual actuarial valuation for any plan, the change shall be
fully amortized over no more than the ten consecutive fiscal years
following the date the Consolidated Public Retirement Board
certifies the net change due to changes in assumptions to the
Governor. The certification shall be made on or before the thirty-
first day of January of each year. Following the receipt of the
certification of change due to changes in actuarial assumptions,
the Governor shall submit the amount of the amortization payment
each year for the pension systems as part of the annual budget submission or in an executive message to the Legislature. The
Consolidated Public Retirement Board shall include the ten year
amortization in the determination of the adequacy of the employer
contribution percentage for the Public Employees Retirement System
and West Virginia State Police Retirement System.
(e) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding (1) the state will not increase any existing
benefits or create any new benefits for any retirees or
beneficiaries currently receiving monthly benefit payments from any
of the West Virginia state sponsored pension systems, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for each plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature; and (2) if any increase
of existing benefits or creation of new benefits for any retirees
or beneficiaries currently receiving monthly benefit payments under
any of the West Virginia state sponsored pension systems, other
than an increase in benefits or new benefits effected by operation
of law in effect on the effective date of this article, causes any
additional unfunded actuarial accrued liability in any of the West
Virginia state sponsored pension systems as calculated in the annual actuarial valuation for each plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system will be fully amortized over no more than the six
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the
certification of additional actuarial accrued liability, the
Governor shall submit the amount of the amortization payment each
year for the pension systems as part of the annual budget
submission or in an executive message to the Legislature. The
Consolidated Public Retirement Board shall include the six year
amortization in the determination of the adequacy of the employer
contribution percentage for the West Virginia Public Employees
Retirement System and West Virginia State Police Retirement System.
(f) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding that the computation of annuities or benefits
for active members due to retirement, death or disability as
provided for in the pension systems shall not be amended in any
manner that increases any existing benefits or provides for new
benefits.
(g) The state hereby pledges and covenants with the obligation
holders, and the indenture shall state, that, while any of the
bonds are outstanding, the state will not increase any existing
benefits or create any new benefits for active members due to
retirement, death or disability of the West Virginia Public Employees Retirement System or the West Virginia State Police
Retirement System unless the actuarial accrued liability of the
plan is at least eighty-five percent funded as of the last day of
the prior fiscal year as determined in the actuarial valuation for
the plan completed for the Consolidated Public Retirement Board as
of the first day of the following fiscal year as of the date the
improvement is adopted by the Legislature. Any additional unfunded
actuarial accrued liability due to any improvement in active
members benefits shall be fully amortized over not more than ten
years following the date the increase in benefits or new benefits
become effective as certified by the Consolidated Public Retirement
Board. The Consolidated Public Retirement Board shall include the
ten year amortization in the determination of the adequacy of the
employer contribution percentage for the West Virginia Public
Employees Retirement System and West Virginia State Police
Retirement System.
§12-8-15. Operation of article.
Notwithstanding the effective date of this act of the
Legislature, this article shall not become operational and shall
have no force and effect until the day the people ratify an
amendment to the constitution of this state authorizing pension
obligation bonds.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§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.
§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 of the Department and any
dependent of a retired or deceased member of the Department.
(b) There shall be deducted from the monthly payroll of each
member 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 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 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 of the Department shall be
paid by the State of West Virginia monthly into the fund out of the
annual appropriation for the Department: Provided further, That
beginning on the first day of July, one thousand nine hundred
ninety-five, the State shall pay thirteen percent of the monthly
salary of each member into the Fund: And provided further, That
beginning on the first day of July, one thousand nine hundred
ninety-six, the State shall pay fourteen percent of the monthly
salary of each member into the Fund: And provided further, That on
and after the first day of July, one thousand nine hundred
ninety-seven, the State shall pay fifteen percent of the monthly
salary of each member into the Retirement Fund. There shall also
be paid into the Fund amounts that have previously been collected
by the Superintendent of the Department on account of payments to
members 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 shall
keep a separate account thereof on 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 not be subject to execution,
garnishment, attachment or any other process whatsoever, with the
exception that the benefits or contributions under the Fund shall
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 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 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 who has lodged 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 (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 (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
(excluding military service credit granted under section twenty-
eight of this article.)
(c) 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 Death, Disability and Retirement 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 the
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the member during the whole period of
service as a member of the Department; 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 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 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.
(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 of the Department 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 of the Department 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 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 from the
Death, Disability and Retirement Fund in equal monthly installments
while the member is in status of retirement. The annuity
adjustments shall supplement the retirement awards and benefits as
provided in this article.
(b) Any member 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 has been
retired for less than one year when the first annuity adjustment is
given on that July first, that first annuity adjustment will 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 member 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 Armed Forces when the member
has been called to active full-time duty and has received no
compensation during the period of such duty from any person other
than the Armed Forces.
(b) Any member of the Department 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 receiving no benefits from any other
retirement system 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 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 equal to the average monthly
salary which he or she actually received from the Department for
his or her total service with the Department 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, 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
of the Department 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 of
the Department; 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 is
entitled shall be calculated and determined as if the member has
continued in the active service of the Department 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 served with the Armed Forces pursuant to the
commission, induction, enlistment or call. The Superintendent of the Department shall transfer and pay each month into the Death,
Disability and Retirement Fund from moneys appropriated for the
Department a sum equal to eighteen percent of the aggregate of
salary which all members would have been entitled to receive had
they continued in the active service of the Department during a
period coextensive with the time the members 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 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 of the Department and incurred pursuant to or
while the member was engaged in the performance of his or her
duties as a member of the Department 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 of the Department, 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 lifetime of the member; or
until the member attains the age of fifty; or until the disability
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; 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
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 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 of the Department and incurred
pursuant to or while the member was engaged in the performance of
his or her duties as a member of the Department, 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 lifetime of the member or until the
disability sooner terminates, an amount equal to the amount of the
salary received by the member in the preceding twelve-month
employment period: Provided, That in no event may the amount be
less than fifteen thousand dollars per annum, unless 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 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 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 of the
Department and incurred pursuant to or while such member was or
shall be engaged in the performance of duties as a member of the
Department. Whenever the Superintendent determines that any
disabled member is ineligible to receive any of the aforesaid
benefits at public expense, the Superintendent shall, at the
request of the disabled member, 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.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-30. Same -- Due to other causes.
If any member while in active service of the Department has,
in the opinion of the Retirement Board, become permanently
partially or totally disabled to the extent that the member cannot
adequately perform the duties required of a member of the
Department 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 shall be retired
by the Retirement Board. The member is entitled to receive
annually and there shall be paid to the member while in status of
retirement, from the Death, Disability and Retirement Fund in equal
monthly installments during the lifetime of such member or until
the disability 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. If
the member, at the time of retirement under the terms of this
section, has served twenty years or longer as a member of the
Department, 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, commencing on the
date the member is retired and continuing during the 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.
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. Same - Physical examinations; termination.
The Consolidated Public Retirement Board may require any
member 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,
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 opinion and finds that the disabled member 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 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 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 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 retired under the provisions of
section thirty of this article, excluding any compensation paid for
overtime service, for the twelve-month employment period preceding
the disability: 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.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member'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 that an
application has been filed: Provided, That when, in the judgment
of the Superintendent, a member is no longer physically or mentally
fit for continued duty as a member of the West Virginia State
Police and the member has failed or refused to make application for
disability benefits under this article, the Superintendent may
petition the Board to retire the member 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 employment, information
relating to the Superintendent's position on the work relatedness
of the member's alleged disability, complete copies of the member'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 a 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) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information
required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient 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 the recipient. If a
disability retirant refuses to file a statement and information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2-31b. Annual report on each employer's 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 State Police. 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 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. Retired member not to exercise police authority;
retention of group insurance
.
A member who is retired may not, while in retirement status,
exercise any of the powers conferred upon active members by section
twelve of this article; but is entitled to receive free of cost to
the member and retain as his or her separate property one complete
standard uniform prescribed by section nine of this article:
Provided, That the uniform may be worn by a member in retirement
status only on occasions prescribed by the Superintendent. The
Superintendent shall maintain at public expense for the benefit of
all members in retirement status 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 who is retired under the provisions of
section twenty-seven of this article, provided the consent of the
member to reassume duties of active membership shall first be had
and obtained. When any member in retirement 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 held by the member when retired. When the member 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
member dies in performance of duty, etc.; 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 while the member was or is engaged in
the performance of his or her duties as a member of the Department,
or if the member 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 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; 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 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.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-34. Same -- When member dies from nonservice-connected
causes.
(a) In any case where a member while in active service of the
Department, before having completed twenty years of service as a member of the Department, 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 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. 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 during their joint
lifetimes, a sum equal to the amount which a surviving spouse would
have been entitled to receive: Provided, however, 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.
(b) For the purposes of this section, the term "salary" does not include compensation paid for overtime service.
§15-2-37. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who is discharged by order of the
Superintendent or otherwise terminates employment with the
Department, 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 Death, Disability and
Retirement Fund plus four percent interest compounded thereon
calculated annually as provided and required by this article.
(b) Any member who has ten or more years of service with the
Department and who withdraws his or her contributions may
thereafter be reenlisted as a member of the Department, but may not
receive any prior service credit on account of former service,
unless following reenlistment the member redeposits 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 who completes ten years of service with the
Department 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 Death,
Disability and Retirement 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 during the whole period of
service as a member of the Department; or
(2) The sum of six thousand dollars.
The annuity shall be payable during the lifetime of the
member. The retiring member may choose, in lieu of a life annuity,
an annuity in 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. 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.
§15-2-39a. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in any of the West Virginia
state sponsored pension systems as calculated in the annual
actuarial valuation for the plan during any fiscal year, the
additional unfunded actuarial accrued liability of the system shall
be fully amortized over no more than the six consecutive fiscal
years following the date the increase in benefits or new benefits
become effective as certified by the consolidated public retirement
board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount of the amortization payment each year for the system as part of the
annual budget submission or in an executive message to the
Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for
active members due to retirement, death or disability as provided
for in the system shall not be amended in such a manner as to
increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the
first day of July, two thousand twenty-five: Provided, That if
bonds are issued pursuant to article eight, chapter twelve of this
code, the provisions of this section shall not terminate while any
of the bonds are outstanding.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "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 the Armed
Forces when the member has been called to active full-time duty and
has received no compensation during the period of duty from any
person other than the Armed Forces.
(2) "Base salary" means compensation paid to a member without
regard to any overtime pay.
(3) "Board" means the Consolidated Public Retirement Board
created pursuant to article ten-d, chapter five of this code.
(4) "Department" means the West Virginia State Police.
(5) "Final average salary" means the average of the highest
annual compensation received for employment with the Department,
including compensation paid for overtime service, received by the
member during any five calendar years within the member's last ten
years of service.
(6) "Fund" means the West Virginia State Police Retirement
Fund created pursuant to section four of this article.
(7) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
(8) "Law-enforcement officer" means individuals 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 purely administrative
in nature.
(9) "Member" or "employee" means a person regularly employed
in the service of the Department as a law-enforcement officer after
the effective date of this article.
(10) "Month of service" means each month for which a member is paid or entitled to payment for at least one hour of service for
which contributions were remitted to the Fund. These months shall
be credited to the member for the calendar year in which the duties
are performed.
(11) "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.
(12) "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.
(13) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(14) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one half years; or (b) the
calendar year in which he or she retires or otherwise separates
from service with the Department after having attained the age of
seventy and one half years.
(15) "Retirement system," "plan" or "system" means the West
Virginia State Police Retirement System created and established by this article.
(16) "Salary" means the compensation of a member, excluding
any overtime payments.
(17) "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 subdivision, 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: (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.
(18) "Years of service" means the months of service acquired
by a member while in active employment with the Department divided
by twelve. Years of service shall be calculated in years and
fraction of a year from the date of active employment of the member
with the Department through the date of termination of employment
or retirement from the Department. If a member returns to active
employment with the Department following a previous termination of
employment with the Department, and the member has not received a
refund of contributions plus interest for the previous employment under section eight of this article, service shall be calculated
separately for each period of continuous employment, and years of
service shall be the total service for all periods of employment.
Years of service shall exclude any periods of employment with the
Department for which a refund of contributions plus interest has
been paid to the member, unless the member repays the previous
withdrawal, as provided in section eight of this article, to
reinstate the years of service.
§15-2A-5. Members' contributions; employer contributions;
forfeitures.
(a) There shall be deducted from the monthly payroll of each
member and paid into the Fund created pursuant to section four of
this article, twelve percent of the amount of his or her salary.
(b) The state of West Virginia's contributions to the
retirement system, as determined by the Consolidated Public
Retirement Board by legislative rule promulgated in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, shall be a percent of the members' total annual compensation
related to benefits under this retirement system. In determining
the amount, the Board shall give consideration to setting the
amount at a sum equal to an amount which, if paid annually by the
state, will be sufficient to provide for the total normal cost of
the benefits expected to become payable to all members and to
amortize any unfunded liability found by application of the
actuarial funding method chosen for that purpose by the
Consolidated Public Retirement Board, over a period of years determined actuarially appropriate. When proposing a rule for
promulgation which relates to the amount of employer contribution,
the board may promulgate emergency rules pursuant to the provisions
of article three, chapter twenty-nine-a of this code, if the
inability of the Board to increase state contributions will
detrimentally affect the actuarial soundness of the retirement
system. A signed statement from the state actuary shall accompany
the statement of facts and circumstances constituting an emergency
which shall be filed in the State Register. For purposes of this
section, subdivision (2), subsection (b), section fifteen-a,
article three, chapter twenty-nine-a of this code is not applicable
to the Secretary of State's determination of whether an emergency
rule should be approved. The state's contributions shall be paid
monthly into the fund created pursuant to section four of this
article out of the annual appropriation for the Department.
(c) Notwithstanding any other provisions of this article,
forfeitures under the system shall not be applied to increase the
benefits any member would otherwise receive under the system.
§15-2A-6. Retirement; commencement of benefits.
(a) A member may retire with full benefits upon attaining the
age of fifty-five and completing twenty or more years of service,
by lodging with the Consolidated Public Retirement Board his or her
voluntary petition in writing for retirement. A member who is less
than age fifty-five may retire upon completing twenty years or more
of service: Provided, That he or she will receive a reduced
benefit that is of equal actuarial value to the benefit the member would have received if the member deferred commencement of his or
her accrued retirement benefit to the age of fifty-five.
(b) When the Retirement Board retires a member with full
benefits under the provisions of this section, the Board, by order
in writing, shall make a determination that the member is entitled
to receive an annuity equal to two and three-fourths percent of his
or her final average salary multiplied by the number of years, and
fraction of a year, of his or her service in the Department at the
time of retirement. The member's annuity shall begin the first day
of the calendar month following the month in which the member's
application for the annuity is filed with the Board on or after his
or her attaining age and service requirements, and termination of
employment.
(c) In no event may the provisions of section thirteen,
article sixteen, chapter five be applied in determining eligibility
to retire with either a deferred or immediate commencement of
benefit.
§15-2A-7. Annual annuity adjustment.
(a) Every member of the Department who is sixty-three years of
age or older and who is retired by the Retirement Board under the
provisions of section six of this article; every member who is
retired under the provisions of section nine or ten of this
article; and every surviving spouse receiving a benefit pursuant to
section twelve, thirteen or fourteen of this article is eligible to
receive an annual retirement annuity adjustment equal to one
percent of his or her retirement award or surviving spouse award. 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 a member from the Fund in
equal monthly installments while the member is in status of
retirement. The annuity adjustments shall supplement the
retirement awards and benefits provided in this article.
(b) Any member or beneficiary who receives a benefit pursuant
to the provisions of section nine, ten, twelve, thirteen or
fourteen 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 has been retired for
less than one year when the first annuity adjustment is given on
that July first, that first annuity adjustment will be a pro rata
share of the full year's annuity adjustment.
§15-2A-8. Refunds to certain members upon discharge or
resignation; deferred retirement.
(a) Any member who is discharged by order of the
Superintendent or otherwise terminates employment with the
Department is, at the written request of the member to the
Retirement Board, entitled to receive from the Retirement Fund a
sum equal to the aggregate of the principal amount of moneys
deducted from the salary of the member and paid into the 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 shall not receive any prior service credit on account of the former service, unless
following his or her reenlistment the member redeposits in the Fund
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.
(c) Every member who completes ten years of service with the
Department is eligible, upon separation of employment with the
Department, to either 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. The annuity shall be payable during the lifetime of the
member, and shall be in the amount of his or her accrued retirement
benefit as determined under section six of this article. The
retiring member may choose, in lieu of a life annuity, an annuity
in 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. Reduction of the monthly benefit amount shall be
calculated to be of equal actuarial value to the life annuity the
member could otherwise have chosen. Any member choosing to receive
the deferred annuity under this subsection is not eligible to
receive the annual annuity adjustment provided in section seven of this article.
§15-2A-9. Awards and benefits for disability -- Incurred in
performance of duty.
(a) Except as otherwise provided in this section, a member of
the Department 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
of the Department and incurred pursuant to or while the member was
engaged in the performance of his or her duties as a member of the
Department shall, if, in the opinion of the Retirement Board, he or
she is, by reason of such cause, unable to perform adequately the
duties required of him or her as a member of the Department, but is
able to engage in other gainful employment in a field other than
law enforcement, be retired from active service by the Board. The
member thereafter is entitled to receive annually and there shall
be paid to the member from the Fund in equal monthly installments
during the lifetime of the member, or until the member attains the
age of fifty-five or until the disability sooner terminates, one or
the other of two amounts, whichever is greater:
(1) An amount equal to six tenths of the base 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; or
(2) The sum of six thousand dollars.
Upon attaining age fifty-five, the member shall receive the
benefit provided in section six of this article as it would apply
to his or her final average salary based on earnings from the
Department through the day immediately preceding his or her
disability. The recalculation of benefit upon a member attaining
age fifty-five shall be considered to be a retirement under the
provisions of section six 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 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 retired on a 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.
(b) Any member who has not yet entered retirement status on
the basis of age and service and who becomes physically or mentally
disabled by injury, illness or disease on a probable permanent
basis resulting from any occupational risk or hazard inherent in or
peculiar to the services required of members of the Department and
incurred pursuant to or while the member was or is engaged in the
performance of his or her duties as a member of the Department to
the extent that the member is incapacitated ever to engage in any gainful employment, the member is entitled to receive annually, and
there shall be paid to the member from the Fund in equal monthly
installments during the lifetime of the member or until the
disability sooner terminates, an amount equal to the amount of the
base salary received by the member in the preceding twelve-month
employment period.
(c) The Superintendent of the Department may expend moneys
from funds appropriated for the Department 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 of the Department
who is 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 of the
Department and incurred pursuant to or while the member was or
shall be engaged in the performance of duties as a member of the
Department. Whenever the Superintendent determines that any
disabled member is ineligible to receive any of the aforesaid
benefits at public expense, the Superintendent shall, at the
request of the disabled member, refer the matter to the 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 Bureau of
Employment Programs, Workers' Compensation Division.
§15-2A-10. Same -- Due to other causes.
(a) If any member while in active service of the State Police
becomes partially or totally disabled on a probable permanent basis
to the extent that the member cannot adequately perform the duties
required of a member of the Department 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 shall be retired by the Board. There shall be paid annually
to the member from the Fund in equal monthly installments,
commencing on the date the member is retired and continuing during
the lifetime of the member; or until the member attains the age of
fifty-five; while in status of retirement an amount equal to one
half the base salary received by the member 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.
(b) Upon attaining age fifty-five, the member shall receive
the benefit provided in section six of this article as it would
apply to his or her final average salary based on earnings from the
Department through the day immediately preceding his or her
disability. The recalculation of benefit upon a member attaining
age fifty-five shall be considered to be a retirement under the
provisions of section six of this article, for purposes of
determining the amount of annual annuity adjustment and for all
other purposes of this article.
§15-2A-11. Same -- Physical examinations; termination.
The Board may require any member retired with compensation on
account of disability to submit to a physical or mental examination
or both a physical and 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 expenses of the Department, and a report of
the findings of the physician or physicians shall be submitted in
writing to the Board for its consideration. If from the report or
from the report and hearing on the report, the Board is of opinion
and finds that the disabled member 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 Fund be terminated. If from the
report or the report and hearing on the report, the Board is of the
opinion and find that the disabled member has recovered from his or
her previously determined probable permanent disability to the
extent that he or she is able to engage in any gainful employment
but unable to adequately perform the duties of a law-enforcement
officer, the Board shall order, in the case of a member retired
under the provisions of section nine of this article, that the
disabled member be paid annually from the Fund an amount equal to
six tenths of the base salary paid to the member in the last
twelve-month employment period. The Board shall order, in the case
of a member retired under the provisions of section ten of this
article, that the disabled member be paid from the Fund an amount equal to one fourth of the base salary paid to the member in the
last 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.
§15-2A-11a. Physical examinations of prospective members;
application for disability benefit;
determinations.
(a) Not later than thirty days after an employee becomes a
member of the Fund, the employer shall forward to the Board a copy
of the physician's report of a physical examination which
incorporates the standards or procedures described in section
seven, article two, chapter fifteen of this code. A copy of the
physicians's report shall be placed in the employee's retirement
system file maintained by the Board.
(b) Application for a disability benefit may be made by a
member or, if the member is under an incapacity, by a person acting
with legal authority on the member's behalf. After receiving an
application for a disability benefit, the Board shall notify the
Superintendent of the Department that an application has been
filed: Provided, That when, in the judgment of the Superintendent,
a member is no longer physically or mentally fit for continued duty
as a member of the West Virginia State Police and the member has
failed or refused to make application for disability benefits under
this article, the Superintendent may petition the Board to retire
the member on the basis of disability pursuant to legislative rules proposed in accordance with article three, chapter twenty-nine-a of
this code. 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 employment,
information relating to the Superintendent's position on the work
relatedness of the member's alleged disability, complete copies of
the member's medical file and any other information requested by
the Board in its processing of the application.
(c) The Board shall propose legislative rules in accordance
with article three, chapter twenty-nine-a of this code relating to
the processing of applications and petitions for disability
retirement under this article.
(d) The Board shall notify a 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 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.
(e) The Board may require a disability benefit recipient to
file an annual statement of earnings and any other information required in rules which may be adopted by the Board. The Board may
waive the requirement that a disability benefit recipient 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 the recipient. If a
disability recipient refuses to file the statement or information,
the disability benefit shall be suspended until the statement and
information are filed.
§15-2A-11b. Annual report on each employer's 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 State Police. 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 the 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.
§15-2A-12. Awards and benefits to dependents of member -- When
member dies in performance of duty, etc.; dependent
child scholarship and amount.
The surviving spouse, the dependent child or children or dependent parent or parents of any member who has lost or shall
lose 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 while the member was
engaged in the performance of his or her duties as a member of the
Department, or the survivor of a member who dies from any cause
after having been retired pursuant to the provisions of section
nine of this article, is entitled to receive and shall be paid from
the Fund benefits as follows: To the surviving spouse annually, in
equal monthly installments during his or her lifetime, 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 base 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; or
(2) The sum of six thousand dollars.
In addition thereto, the surviving spouse is entitled to
receive and there shall be paid to the person 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 Fund a sum
equal to one fourth 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 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.
Any person qualifying 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 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 rules 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.
Awards and benefits for a surviving spouse or dependents of a
member received under any section or any of the provisions of this retirement system are in lieu of receipt of any benefits for these
persons under the provisions of any other state retirement system.
Receipt of benefits under any other state retirement system is in
lieu of any right to receive any benefits under this retirement
system, so that only a single receipt of state retirement benefits
occurs.
§15-2A-13. Same -- When member dies from nonservice-connected
causes.
In any case where a member while in active service of the
Department, before having completed twenty years of service as a
member of the Department, 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 Fund to the
surviving spouse of the member during his or her lifetime, or until
such time as the surviving spouse remarries, a sum equal to one
half of the base 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. 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 Fund a sum equal to one fourth 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 during their joint lifetimes a sum equal to the amount that
a surviving spouse would have been entitled to receive: Provided,
however, That when there is but one dependent parent surviving,
then 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.
§15-2A-14. Awards and benefits to dependents of member -- When
member dies after retirement or after serving twenty
years
.
(a) When any member of the Department has completed twenty
years of service or longer as a member of the Department and dies
from any cause or causes other than those specified in this article
before having been retired by the Board, and when a member in
retirement status has died after having been retired by the Board
under the provisions of this article, there shall be paid annually
in equal monthly installments from the Fund to the surviving spouse
of the member, commencing on the date of the death of the member
and continuing during the lifetime or until remarriage of the
surviving spouse, an amount equal to two thirds of the retirement
benefit which the deceased member was receiving while in status of
retirement, or would have been entitled to receive to the same
effect as if the member had been retired under the provisions of
this article immediately prior to the time of his or her death. In
no event shall the annual benefit payable be less than five
thousand dollars. In addition thereto, the surviving spouse is entitled to receive and there shall be paid to the surviving spouse
from the Fund the sum of one hundred dollars monthly for each
dependent child or children. If the surviving spouse dies or
remarries, or if there is no surviving spouse, there shall be paid
monthly from the Fund to each dependent child or children of the
deceased member a sum equal to one fourth of the surviving spouse's
entitlement. If there 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 the Fund 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 been entitled to
receive: 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.
(b) The member may choose a higher percentage of surviving
spouse benefits by taking an actuarially determined reduced initial
benefit so that the chosen spouse benefit and initial benefit would
be actuarially equivalent to the normal spouse benefit and initial
benefit. The Retirement Board shall design these benefit options
and provide them as choices for the member to select. For the
purposes of this subsection, "initial benefit" means the benefit
received by the member upon retirement.
§15-2A-19. 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 credited service for the
purpose of determining the amount of retirement award 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 receiving no benefits from any other
retirement system for his or her active military duty; and
(4) That, except with respect to disability retirement pay
awarded under this article, he or she has actually served with the
Department for twenty years exclusive of his or her active military
duty.
(b) In addition, any person who while a member of the
Department 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 credit on the
minimum period of service required by law for retirement pay from
the service of the Department, or its predecessor agency, 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 the
Superintendent and offered to resume service as an active member of
the Department; 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 military service credit allowable
under this section may not exceed five years for any member of the
Department.
(d) Notwithstanding 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
shall 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.
§15-2A-21. 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. 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.
§15-2A-22. Limitations on benefit increases.
(a) The state will not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in the system as calculated in
the annual actuarial valuation for the plan during any fiscal year,
the additional unfunded actuarial accrued liability of that pension
system will be fully amortized over no more than the six
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the six year amortization in the
determination of the adequacy of the employer contribution percentage for the system.
(c) The state will not increase any existing benefits or
create any new benefits for active members due to retirement, death
or disability of the system unless the actuarial accrued liability
of the plan shall be at least eighty-five percent funded as of the
last day of the prior fiscal year as determined in the actuarial
valuation for the plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year
as of the date the improvement is adopted by the Legislature. Any
additional unfunded actuarial accrued liability due to any
improvement in active members benefits shall be fully amortized
over not more than ten years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. The Consolidated Public
Retirement Board shall include the ten year amortization in the
determination of the adequacy of the employer contribution
percentage for the system.
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-3. Definitions.
(a) As used in this article, unless the context clearly
require a different meaning:
(1) "Accumulated contributions" means all deposits and all
deductions from the gross salary of a contributor plus regular
interest.
(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member;
(3) "Annuities" means the annual retirement payments for life
granted beneficiaries in accordance with this article.
(4) "Average final salary" means the average of the five
highest fiscal year salaries earned as a member within the last
fifteen fiscal years of total service credit, including military
service as provided in this article, or if total service is less
than fifteen years, the average annual salary for the period on
which contributions were made.
(5) "Beneficiary" means the recipient of annuity payments made
under the retirement system.
(6) "Contributor" means a member of the retirement system who
has an account in the teachers accumulation fund.
(7) "Deposit" means a voluntary payment to his or her account
by a member.
(8) "Employer" means the agency of and within the state which
has employed or employs a member.
(9) "Employment term" means employment for at least ten
months, a month being defined as twenty employment days.
(10) "Gross salary" means the fixed annual or periodic cash
wages paid by a participating public employer to a member for
performing duties for the participating public employer for which
the member was hired. Gross salary shall also include retroactive
payments made to a member to correct a clerical error, or pursuant
to a court order or final order of an administrative agency charged
with enforcing federal or state law pertaining to the member's rights to employment or wages, with all such retroactive salary
payments to be allocated to and deemed paid in the periods in which
the work was or would have been done. Gross salary shall not
include lump sum payments for bonuses, early retirement incentives,
severance pay, or any other fringe benefit of any kind including,
but not limited to, transportation allowances, automobiles or
automobile allowances, or lump sum payments for unused, accrued
leave of any type or character.
(11) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended.
(12) "Member" means a member of the retirement system.
(13) "Members of the administrative staff of the public
schools" means deans of instruction, deans of men, deans of women,
and financial and administrative secretaries.
(14) "Members of the extension staff of the public schools"
means every agricultural agent, boys' and girls' club agent and
every member of the agricultural extension staff whose work is not
primarily stenographic, clerical or secretarial.
(15) "New entrant" means a teacher who is not a present
teacher.
(16) "Nonteaching member" means any person, except a teacher
member, who is regularly employed for full-time service by: (a) Any
county board of education; (b) the State Board of Education; (c)
the West Virginia Board of Regents [abolished]; or (d) the Teachers
Retirement Board.
(17) "Pick-up service" means service that a member was entitled to, but which the employer has not withheld or paid for.
(18) "Plan year" means the twelve-month period commencing on
the first day of July and ending the following thirtieth day of
June of any designated year.
(19) "Present member" means a present teacher who is a member
of the retirement system.
(20) "Present teacher" means any person who was a teacher
within the thirty-five years beginning the first day of July, one
thousand nine hundred thirty-four, and whose membership in the
retirement system is currently active.
(21) "Prior service" means all service as a teacher completed
prior to the first day of July, one thousand nine hundred forty-
one, and all service of a present member who was employed as a
teacher, and did not contribute to a retirement account because he
or she was legally ineligible for membership during the service.
(22) "Public schools" means all publicly supported schools,
including colleges and universities in this state.
(23) "Refund beneficiary" means the estate of a deceased
contributor or a person he or she has nominated as beneficiary of
his or her contributions by written designation duly executed and
filed with the retirement board.
(24) "Refund interest" means interest compounded, according to
the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(25) "Regular interest" means interest at four percent
compounded annually, or a higher earnable rate if set forth in the formula established in legislative rules, series seven of the
Consolidated Public Retirement Board.
(26) "Regularly employed for full-time service" means
employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay.
(27) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy and one-half years; or (b) the
calendar year in which the member retires or ceases covered
employment under the system after having attained the age of
seventy and one half years.
(28) "Retirement system" means the State Teachers Retirement
System provided for in this article.
(29) "Teacher member" means the following persons, if
regularly employed for full-time service: (a) Any person employed
for instructional service in the public schools of West Virginia;
(b) principals; (c) public school librarians; (d) superintendents
of schools and assistant county superintendents of schools; (e) any
county school attendance director holding a West Virginia teacher's
certificate; (f) the Executive Secretary of the Retirement Board;
(g) members of the research, extension, administrative or library
staffs of the public schools; (h) the State Superintendent of
Schools, heads and assistant heads of the divisions under his or
her supervision, or any other employee under the State
Superintendent performing services of an educational nature; (i)
employees of the State Board of Education who are performing services of an educational nature; (j) any person employed in a
nonteaching capacity by the State Board of Education, any county
board of education, the State Department of Education or the
Teachers Retirement Board, if that person was formerly employed as
a teacher in the public schools; (k) all classroom teachers,
principals and educational administrators in schools under the
supervision of the Division of Corrections, the Division of Health
or the Division of Human Services; and (l) employees of the State
Board of School Finance, if that person was formerly employed as a
teacher in the public schools.
(30) "Total service" means all service as a teacher while a
member of the retirement system since last becoming a member and,
in addition thereto, credit for prior service, if any.
The masculine gender shall be construed so as to include the
feminine.
Age in excess of seventy years shall be considered to be
seventy years.
§18-7A-14. Contributions by members; contributions by employers.
(a) At the end of each month every member of the retirement
system shall contribute six percent of that member's monthly gross
salary to the Retirement Board: Provided, That any member employed
by the West Virginia Board of Directors of the State College System
or the Board of Trustees of the University System at an institution
of higher education under its control shall contribute on the
member's full earnable compensation, unless otherwise provided in
section fourteen-a of this article.
(b) Annually, the contributions of each member shall be
credited to the member's account in the Teachers' Retirement System
Fund. The contributions shall be deducted from the salaries of the
members as prescribed in this section, and every member shall be
considered to have given consent to the deductions. No deductions,
however, shall be made from the earnable compensation of any member
who retired because of age or service, and then resumed service
unless as provided in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable
under this article, shall equal annually the total deductions from
the gross salary of members required by this section. Beginning the
first day of July, one thousand nine hundred ninety-four, the rate
shall be seven and one-half percent; beginning on the first day of
July, one thousand nine hundred ninety-five, the rate shall be nine
percent; beginning on the first day of July, one thousand nine
hundred ninety-six, the rate shall be ten and one-half percent;
beginning on the first day of July, one thousand nine hundred
ninety-seven, the rate shall be twelve percent; beginning on the
first day of July, one thousand nine hundred ninety-eight, the rate
shall be thirteen and one-half percent; and beginning on the first
day of July, one thousand nine hundred ninety-nine and thereafter,
the rate shall be fifteen percent:
Provided, that the rate shall be
seven and one-half percent for any individual who becomes a member
of the Teachers Retirement System for the first time on or after
the first day of July, two-thousand five or any individual who
becomes a member of the Teachers Retirement System as a result of the merger contemplated in article seven-c of this chapter
.
(d) Payment by an employer to a member of the sum specified in
the employment contract minus the amount of the employee's
deductions shall be considered to be a full discharge of the
employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the Retirement Board or
with the employer to be forwarded to the Retirement Board an
enrollment form showing the contributor's date of birth and other
data needed by the Retirement Board.
§18-7A-17. Statement and computation of teachers' service;
qualified military service.
(a) Under rules adopted by the Retirement Board, each teacher
shall file a detailed statement of his or her length of service as
a teacher for which he or she claims credit. The Retirement Board
shall determine what part of a year is the equivalent of a year of
service. In computing the service, however, it shall credit no
period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of
service performed in any calendar year.
(b) For the purpose of this article, the Retirement Board
shall grant prior service credit to new entrants and other members
of the retirement system for service in any of the Armed Forces of
the United States in any period of national emergency within which
a federal Selective Service Act was in effect. For purposes of
this section, "Armed Forces" includes Women's Army Corps, women's
appointed volunteers for emergency service, Army Nurse Corps, SPARS, Women's Reserve and other similar units officially parts of
the military service of the United States. The military service is
considered equivalent to public school teaching, and the salary
equivalent for each year of that service is the actual salary of
the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military
service shall not exceed ten years for any one member, nor shall it
exceed twenty-five percent of total service at the time of
retirement. Notwithstanding the preceding provisions of this
subsection, 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 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. No military service credit may be used in more than
one retirement system administered by the Consolidated Public
Retirement Board.
(c) For service as a teacher in the employment of the federal
government, or a state or territory of the United States, or a
governmental subdivision of that state or territory, the Retirement
Board shall grant credit to the member: Provided, That the member shall pay to the system double the amount he or she contributed
during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be
determined by the Retirement Board. The interest shall be
deposited in the reserve fund and service credit granted at the
time of retirement shall not exceed the lesser of ten years or
fifty percent of the member's total service as a teacher in West
Virginia. Any transfer of out-of-state service, as provided in
this article, shall not be used to establish eligibility for a
retirement allowance and the Retirement Board shall grant credit
for the transferred service as additional service only: Provided,
however, That a transfer of out-of-state service is prohibited if
the service is used to obtain a retirement benefit from another
retirement system: Provided further, That salaries paid to members
for service prior to entrance into the retirement system shall not
be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be
denied on the basis of minimum income rules promulgated by the
teachers retirement board: Provided, That the member or retired
member shall pay to the system the amount he or she would have
contributed during the year or years of public school service for
which credit was denied as a result of the minimum income rules of
the Teachers Retirement Board.
(e) No members shall be considered absent from service while
serving as a member or employee of the Legislature of the state of West Virginia during any duly constituted session of that body or
while serving as an elected member of a county commission during
any duly constituted session of that body.
(f) No member shall be considered absent from service as a
teacher while serving as an officer with a statewide professional
teaching association, or who has served in that capacity, and no
retired teacher, who served in that capacity while a member, shall
be considered to have been absent from service as a teacher by
reason of that service: Provided, That the period of service
credit granted for that service shall not exceed ten years:
Provided, however, That a member or retired teacher who is serving
or has served as an officer of a statewide professional teaching
association shall make deposits to the Teachers Retirement Board,
for the time of any absence, in an amount double the amount which
he or she would have contributed in his or her regular assignment
for a like period of time.
(g) The Teachers Retirement Board shall grant service credit
to any former or present member of the West Virginia Public
Employees Retirement System who has been a contributing member for
more than three years, for service previously credited by the
Public Employees Retirement System and: (1) Shall require the
transfer of the member's contributions to the Teachers Retirement
System; or (2) shall require a repayment of the amount withdrawn
any time prior to the member's retirement: Provided, That there
shall be added by the member to the amounts transferred or repaid
under this subsection an amount which shall be sufficient to equal the contributions he or she would have made had the member been
under the Teachers Retirement System during the period of his or
her membership in the Public Employees Retirement System plus
interest at a rate to be determined by the Board compounded
annually from the date of withdrawal to the date of payment. The
interest paid shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary
parochial school, located within this state and fully accredited by
the West Virginia Department of Education, the Retirement Board
shall grant credit to the member: Provided, That the member shall
pay to the system double the amount contributed during the first
full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined
by the Retirement Board. The interest shall be deposited in the
reserve fund and service granted at the time of retirement shall
not exceed the lesser of ten years or fifty percent of the member's
total service as a teacher in the West Virginia public school
system. Any transfer of parochial school service, as provided in
this section, may not be used to establish eligibility for a
retirement allowance and the Board shall grant credit for the
transfer as additional service only: Provided, however, That a
transfer of parochial school service is prohibited if the service
is used to obtain a retirement benefit from another retirement
system.
(i) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service credit for time served in that capacity: Provided, That in order
to receive service credit under the provisions of this subsection
the following conditions must be met: (1) The member must have
moved from temporary employment with the participating employer to
permanent full-time employment with the participating employer
within one hundred twenty days following the termination of the
member's CETA employment; (2) the Board must receive evidence that
establishes to a reasonable degree of certainty as determined by
the Board that the member previously worked in CETA; and (3) the
member shall pay to the Board an amount equal to the employer and
employee contribution plus interest at the amount set by the Board
for the amount of service credit sought pursuant to this
subsection: Provided, however, That the maximum service credit
that may be obtained under the provisions of this subsection is two
years: Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of March, two
thousand three: And provided further, That the Board shall
exercise due diligence to notify affected employees of the
provisions of this subsection.
(j) If a member is not eligible for prior service credit or
pension as provided in this article, then his or her prior service
shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or
her former membership rights as specified in section thirteen of
this article only in case he or she has served two years since his or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l),
inclusive, of this section, the Board shall verify as soon as
practicable the statements of service submitted. The Retirement
Board shall issue prior service certificates to all persons
eligible for the certificates under the provisions of this article.
The certificates shall state the length of the prior service
credit, but in no case shall the prior service credit exceed forty
years.
(m) Notwithstanding any provision of this article to the
contrary, when a member is or has been elected to serve as a member
of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her
teaching or administrative duties, the time served in discharge of
his or her duties of the legislative office are credited as time
served for purposes of computing service credit: Provided, That
the Board may not require any additional contributions from that
member in order for the Board to credit him or her with the
contributing service credit earned while discharging official
legislative duties: Provided, however, That nothing in this
section may be construed to relieve the employer from making the
employer contribution at the member's regular salary rate or rate
of pay from that employer on the contributing service credit earned
while the member is discharging his or her official legislative
duties. These employer payments shall commence as of the first day
of June, two thousand: Provided further, That any member to which the provisions of this subsection apply may elect to pay to the
Board an amount equal to what his or her contribution would have
been for those periods of time he or she was serving in the
Legislature. The periods of time upon which the member paid his or
her contribution shall then be included for purposes of determining
his or her final average salary as well as for determining years of
service: And provided further, That a member using the provisions
of this subsection is not required to pay interest on any
contributions he or she may decide to make.
(n) The Teachers Retirement Board shall grant service credit
to any former member of the State Police Death, Disability and
Retirement System who has been a contributing member for more than
three years, for service previously credited by the State Police
Death, Disability and Retirement System; and: (1) Shall require the
transfer of the member's contributions to the Teachers Retirement
System; or (2) shall require a repayment of the amount withdrawn
any time prior to the member's retirement: Provided, That the
member shall add to the amounts transferred or repaid under this
paragraph an amount which is sufficient to equal the contributions
he or she would have made had the member been under the Teachers
Retirement System during the period of his or her membership in the
State Police Death, Disability and Retirement System plus interest
at a rate to be determined by the Board compounded annually from
the date of withdrawal to the date of payment. The interest paid
shall be deposited in the reserve fund.
§18-7A-18. Teachers Employers Contribution Collection Account; Teachers Retirement System Fund; transfers.
(a) There is hereby created in the State Treasury a special
revenue account designated the "Teachers Employers Contribution
Collection Account" to be administered by the Consolidated Public
Retirement Board. The Teachers Employers Contribution Collection
Account shall be an interest-bearing account with interest credited
to and deposited in the account and transferred in accordance with
the provisions of this section.
(b) There shall be deposited into the Teachers Employers
Contribution Collection Account the following:
(1) contributions of employers, through state appropriations,
and such amounts shall be included in the budget bill submitted
annually by the governor;
(2) Beginning on the first day of July, two-thousand five,
contributions from each county in an amount equal to fifteen
percent of all salary paid in excess of that authorized for minimum
salaries in sections two and eight-a, article four, chapter
eighteen-a of this code and any salary equity authorized in section
five of said article or any county supplement equal to the amount
distributed for salary equity among the counties for each
individual who was a member of the Teachers' Retirement System
before the first day of July, two-thousand five: Provided, That the
rate shall be seven and one-half percent for any individual who
becomes a member of the Teachers Retirement System for the first
time on or after the first day of July, two-thousand five or any
individual who becomes a member of the Teachers' Retirement System as a result of the merger contemplated in article seven-c of this
chapter;
(3) the amounts transferred pursuant to section eighteen-a of
this article; and
(4) any other moneys, available and not otherwise expended,
which may be appropriated or transferred to this account.
(c) Moneys on deposit in the Teacher Employers Contribution
Collection Account shall be transferred monthly in the following
order:
(1) to the Teachers' Retirement System Fund the amount
certified by the Consolidated Public Retirement Board as the
actuarially required contribution;
(2) to the Pension Liability Redemption Fund the amount, if
any, appropriated in accordance with section eight, article eight,
chapter twelve of this code; and
(3) the balance, if any, to the Employee Pension and Health
Care Benefits Fund established under section thirty-nine, article
seven-a of this chapter.
(d) There is hereby continued in the State Treasury a separate
irrevocable trust designated the Teachers' Retirement System Fund.
The Teachers' Retirement System Fund shall be invested as provided
in section nine-a, article six, chapter twelve of this code.
(e) There shall be deposited into the Teachers' Retirement
System Fund, the following:
(1) moneys transferred from the Teachers Employers
Contribution Collection Account;
(2) member contributions provided for in section fifteen of
this article;
(3) gifts and bequests to the fund and any accretions and
accumulations which may properly be paid into and become a part of
the fund;
(4) specific appropriations to the fund made by the
Legislature;
(5) interest on the investment of any part or parts of the
fund; and
(6) any other moneys, available and not otherwise expended,
which may be appropriated or transferred to the Teachers Retirement
System or the Fund.
(f) The Teachers Retirement System Fund shall be the fund
from which annuities shall be paid.
(g) The Consolidated Public Retirement Board has sole
authority to direct and approve the making of any and all fund
transfers as provided in this section, anything in this code to the
contrary notwithstanding.
(h) References in the code to the Teachers Accumulation Fund,
the Employers Accumulation Fund, the Benefit Fund, the Reserve Fund
and the Expense Fund mean the Teachers Retirement System Fund.
§18-7A-18a. Calculation of allocation to Teachers Employers
Contribution Collection Account.
(a)
There shall be an annual allocation from the State General Revenue Fund to the Teachers Employers Contribution Collection
Account, created by section eighteen of this article, equal to the
actuarially required contribution, reduced by any employer
contributions and other allocated amounts.
There shall be an additional allocation in each year an amount
equal to the total of all irrevocably forfeited amounts in the
suspension account established in section eleven, article seven-b
of this chapter plus earnings thereon which have been certified to
the several contributing employers as irrevocably forfeited in the
prior fiscal year and subsequently used by the contributing
employers to reduce their total aggregate contribution requirements
pursuant to section seventeen, article seven-b of this chapter.
(b) The additional allocation provided in this section
represents a funding method by which a part of a rational
amortization plan will be established to amortize the current
unfunded liability of the Teachers Retirement System created by
this article. The additional allocations are not and shall not be
construed to be moneys which are owed to, nor earned by any employee.
§18-7A-23a. Terminal benefits.
(a) This section provides for the payment of the balance in a
retired member's account to paid in the manner described in this
section in the event that all claims to benefits payable to, or on
behalf of, a member expire before his or her member account has
been fully exhausted. The expiration of the rights to benefits
would be on the later of either the death of the retired member
drawing benefits under a straight life annuity, or the death of a survivor annuitant drawing benefits under any optional form of
benefit selected by the retired member.
(b) In the event that all claims to benefits payable to, or on
behalf of, a retired member expire, and the accumulated
contributions exceed the accumulated net benefit payments paid to
or on behalf of the retired member, the balance in the retired
member's account shall be paid to the person or persons as the
retired member has nominated by written designation duly executed
and filed with the board of trustees. If there is no designated
person or persons surviving the retired member following the
expiration of the claims, the excess of the accumulated
contributions over the accumulated net benefit, if any, shall be
paid to the retired member's estate: Provided, That the
provisions of this section are retroactive to all members who
entered retirement status on or after the ninth day of June, two
thousand.
§18-7A-25. Eligibility for retirement allowance.
(a) Any member who has attained the age of sixty years or who
has had thirty-five years of total service as a teacher in West
Virginia, regardless of age, is eligible for an annuity. No new
entrant nor present member is eligible for an annuity, however, if
either has less than five years of service to his or her credit.
(b) Any member who has attained the age of fifty-five years
and who has served thirty years as a teacher in West Virginia is
eligible for an annuity.
(c) Any member who has served at least thirty but less than thirty-five years as a teacher or nonteaching member in West
Virginia and is less than fifty-five years of age is eligible for
an annuity, but the annuity shall be the reduced actuarial
equivalent of the annuity the member would have received if the
member were age fifty-five at the time such annuity was applied
for.
(d) The request for any annuity shall be made by the member in
writing to the Retirement Board, but in case of retirement for
disability, the written request may be made by either the member or
the employer.
(e) A member is eligible for annuity for disability if he or
she satisfies the conditions in either subdivision (a) or
subdivision (b) of this section and meets the conditions of
subdivision (c) of this section as follows:
(1) His or her service as a teacher or nonteaching member in
West Virginia must total at least ten years, and service as a
teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved.
) (2) His or her service as a teacher or nonteaching member in
West Virginia must total at least five years, and service as a
teacher or nonteaching member must have been terminated because of
disability, which disability must have caused absence from service
for at least six months before his or her application for
disability annuity is approved and the disability is a direct and total result of an act of student violence directed toward the
member.
(3) An examination by a physician or physicians selected by
the Retirement Board must show that the member is at the time
mentally or physically incapacitated for service as a teacher, that
for that service the disability is total and likely to be
permanent, and that he or she should be retired in consequence of
the disability.
(f) Continuance of the disability of the retired member shall
be established by medical examination, as prescribed in subdivision
three, subsection (1) of this section, annually for five years
after retirement, and thereafter at such times required by the
Retirement Board. Effective the first day of July, one thousand
nine hundred ninety-eight, a member who has retired because of a
disability may select an option of payment under the provisions of
section twenty-eight of this article: Provided, That any option
selected under the provisions of section twenty-eight of this
article shall be in all respects the actuarial equivalent of the
straight life annuity benefit the disability retiree receives or
would receive if the options under section twenty-eight of this
article were not available and that no beneficiary or beneficiaries
of the disability annuitant may receive a greater benefit, nor
receive any benefit for a greater length of time, than the
beneficiary or beneficiaries would have received had the disability
retiree not made any election of the options available under said
section twenty-eight. In determining the actuarial equivalence, the Board shall take into account the life expectancies of the
member and the beneficiary: Provided, however, That the life
expectancies may at the discretion of the Board be established by
an underwriting medical director of a competent insurance company
offering annuities. Payment of the disability annuity provided in
this article shall cease immediately if the Retirement Board finds
that the disability of the retired teacher no longer exists, or if
the retired teacher refuses to submit to medical examination as
required by this section.
§18-7A-26. Computation of annuities.
(a) Annuitants whose annuities were approved by the Retirement
Board effective before the first day of July, one thousand nine
hundred eighty, shall be paid the annuities which were approved by
the Retirement Board.
(b) Annuities approved by the Board effective after the
thirtieth day of June, one thousand nine hundred eighty, shall be
computed as provided in this section.
(c) Upon establishment of eligibility for a retirement
allowance, a member shall be granted an annuity which shall be the
sum of the following:
(1) Two percent of the member's average salary multiplied by
his or her total service credit as a teacher. In this subdivision
"average salary" means the average of the highest annual salaries
received by the member during any five years contained within his
or her last fifteen years of total service credit: Provided, That
the highest annual salary used in this calculation for certain members employed by the West Virginia Higher Education Policy
Commission under its control shall be four thousand eight hundred
dollars, as provided by section fourteen-a of this article;
(2) The actuarial equivalent of the voluntary deposits of the
member in his or her individual account up to the time of his or
her retirement, with regular interest.
(d) The disability annuities of all teachers retired for
disability shall be based upon a disability table prepared by a
competent actuary approved by the Board.
(e) Upon the death of an annuitant who qualified for an
annuity as the surviving spouse of an active member or because of
permanent disability, the estate of the deceased or beneficiary
designated for such purpose shall be paid the difference, if any,
between the member's contributions with regular interest thereon,
and the sum of the annuity payments. Upon the death of a spouse
who was named as the member's survivor, a retirant may elect an
annuity option approved by the Board in an amount adjusted on a
fair basis to be of equal actuarial value as the annuity
prospectively in effect relative to the surviving member at the
time the new option is elected.
(f) All annuities shall be paid in twelve monthly payments.
In computing the monthly payments, fractions of a cent shall be
considered a cent. The monthly payments shall cease with the
payment for the month within which the beneficiary dies, and shall
begin with the payment for the month succeeding the month within
which the annuitant became eligible under this article for the annuity granted; in no case, however, shall an annuitant receive
more than four monthly payments which are retroactive after the
Board receives his or her application for annuity. The monthly
payments shall be made on the twenty-fifth day of each month,
except the month of December, when the payment shall be made on the
eighteenth day of December. If the date of payment falls on a
holiday, Saturday or Sunday, then the payment shall be made on the
preceding workday.
(g) In case the Retirement Board receives data affecting the
approved annuity of a retired teacher, the annuity shall be changed
in accordance with the data, the change being effective with the
payment for the month within which the Board received the new data.
(h) Any person who has attained the age of sixty-five and who
has served at least twenty-five years as a teacher prior to the
first day of July, one thousand nine hundred forty-one, is eligible
for prior service credit and for prior service pensions as
prescribed in this section.
§18-7A-28e. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the retirement system,
other than an increase in benefits or new benefits effected by
operation of law in effect on the effective date of this article,
in an amount that would exceed more than one percent of the accrued
actuarial liability of the system as of the last day of the
preceding fiscal year as determined in the annual actuarial valuation for each plan completed for the Consolidated Public
Retirement Board as of the first day of the following fiscal year.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the retirement system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, causes any
additional unfunded actuarial accrued liability in any of the West
Virginia state sponsored pension systems as calculated in the
annual actuarial valuation for each plan during any fiscal year,
additional unfunded actuarial accrued liability of that pension
system shall be fully amortized over no more than the six
consecutive fiscal years following the date the increase in
benefits or new benefits become effective as certified by the
Consolidated Public Retirement Board. Following the receipt of the
certification of additional actuarial accrued liability, the
Governor shall submit the amount of the amortization payment each
year for the retirement system as part of the annual budget
submission or in an executive message to the Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for
active members due to retirement, death or disability as provided
for in the retirement system shall not be amended in such a manner
as to increase any existing benefits or to provide for new
benefits.
(d) The provisions of this section terminate effective the first day of July, two thousand thirty-four: Provided, however,
that if bonds are issued pursuant to article eight, chapter twelve
of this code, the provisions of this section shall not terminate
while any of the bonds are outstanding.
§18-7A-34. Loans to members.
(a) An actively contributing member of the retirement system
upon written application may borrow from his or her individual
account in the Teachers Accumulation Fund, subject to these
restrictions:
(1) Loans shall be made in multiples of ten dollars, the
minimal loan being one hundred dollars and the maximum being eight
thousand dollars: Provided, That the maximum amount of any loan
when added to the outstanding balance of all other loans shall not
exceed the lesser of the following: (A) Eight thousand dollars
reduced by the excess (if any) of the highest outstanding balance
of loans during the one-year period ending on the day before the
date on which the loan is made, over the outstanding balance of
loans to the member on the date on which the loan is made; or (B)
fifty percent of the member's contributions to his or her
individual account in the Teachers Accumulations Fund: Provided,
however, That if the total amount of loaned money outstanding
exceeds forty million dollars, the maximum shall not exceed three
thousand dollars until the Retirement Board determines that loans
outstanding have been reduced to an extent that additional loan
amounts are again authorized.
(2) Interest charged on the amount of the loan shall be six percent per annum, or a higher rate as set by the Board: Provided,
That interest charged shall be commercially reasonable in
accordance with the provisions of section 72(p)(2) of the Internal
Revenue Code, and the federal regulations issued thereunder. If
repayable in installments, the interest shall not exceed the annual
rate so established upon the principal amount of the loan, for the
entire period of the loan, and such charge shall be added to the
principal amount of the loan. The minimal interest charge shall be
for six months.
(3) No member is eligible for more than one outstanding loan
at any time.
(4) If a refund is payable to the borrower or his or her
beneficiary before he or she repays the loan with interest, the
balance due with interest to date shall be deducted from the
refund.
(5) From his or her monthly salary as a teacher or a
nonteacher the member shall pay the loan and interest by deductions
which will pay the loan and interest in substantially level
payments in not more than sixty nor less than six months. Upon
notice of loan granted and payment due, the employer is responsible
for making the salary deductions and reporting them to the
Retirement Board. At the option of the Board, loan deductions may
be collected as prescribed herein for the collection of members'
contribution, or may be collected through issuance of warrant by
employer. If the borrower is no longer employed as a teacher or
nonteaching member, the borrower must make monthly loan payments directly to the Consolidated Public Retirement Board and the Board
must accept the payments.
(6) The entire unpaid balance of any loan, and interest due
thereon, shall, at the option of the Board, become due and payable
without further notice or demand upon the occurrence with respect
to the borrowing member of any of the following events of default:
(A) Any payment of principal and accrued interest on a loan remains
unpaid after it becomes due and payable under the terms of the loan
or after the grace period established in the discretion of the
Board; (B) the borrowing member attempts to make an assignment for
the benefit of creditors of his or her refund or benefit under the
retirement system; or (C) any other event of default set forth in
rules promulgated by the Board in accordance with the authority
granted pursuant to section one, article ten-d, chapter five of
this code: Provided, That any refund or offset of an unpaid loan
balance shall be made only at the time the member is entitled to
receive a distribution under the retirement system.
(7) Loans shall be evidenced by such form of obligations and
shall be made upon such additional terms as to default, prepayment,
security, and otherwise as the Retirement Board may determine.
(8) Notwithstanding anything herein to the contrary, the loan
program authorized by this section shall comply with the provisions
of Section 72(p)(2) and Section 401 of the Internal Revenue Code,
and the federal regulations issued thereunder, and accordingly, the
Retirement Board is authorized to: (A) Apply and construe the
provisions of this section and administer the plan loan program in such a manner as to comply with the provisions of Section 72(p)(2)
and Section 401 of the Internal Revenue Code and the federal
regulations issued thereunder; (B) adopt plan loan policies or
procedures consistent with these federal law provisions; and (C)
take such actions as it deems necessary or appropriate to
administer the plan loan program created hereunder in accordance
with these federal law provisions. The Retirement Board is further
authorized in connection with the plan loan program to take any
actions that may at any time be required by the Internal Revenue
Service regarding compliance with the requirements of Section
72(p)(2) or Section 401 of the Internal Revenue Code, and the
federal regulations issued thereunder, notwithstanding any
provision in this article to the contrary.
(b) Notwithstanding anything in this article to the contrary,
the loan program authorized by this section shall not be available
to any teacher or nonteacher who becomes a member of the Teachers
Retirement System on or after the first day of July, two thousand
five: Provided, That a member is eligible for loan under
subsection (c), section six, article seven-c of this chapter to pay
all or part of the one and one-half percent contribution for
service in the Defined Contribution Plan.
§18-7A-39. Employee Pension and Health Care Benefits Fund.
(a) There is hereby created in the State Treasury a special
revenue account designated as the "Employee Pension and Health Care
Benefits Fund" to be administered by the Department of
Administration. Funds in this account may be invested in the manner permitted by the provisions of article six, chapter twelve
of this code, with all interest income credited to this Fund.
(b) Effective the first day of July, two thousand five, any
savings realized from the reduction in employer contributions for
current retirement benefits, being the difference between the
required employer contributions that would have been required into
the Teachers Defined Contribution System as in effect immediately
prior to the first day of July, two thousand five and the required
employer contribution for normal cost into the State Teachers
Retirement System on and after the first day of July, two thousand
five, shall be deposited into the Employee Pension and Health Care
Benefits Fund. The Consolidated Public Retirement Board shall
determine the annual amount of the savings based on the annual
actuarial valuation for the plan prepared as of the first day of
July following the end of each fiscal year and certify the amount
to the Governor by the thirty-first day of January of that fiscal
year. The Governor shall submit the amount of the savings as part
of the annual budget submission or in an executive message to the
Legislature.
(c) Moneys in the Employee Pension and Health Care Benefits
Fund are to be used and expended to pay for the cost of unfunded
health care benefits or unfunded pension benefits, or to be
transferred into the Pension Liability Redemption Fund created in
section eight, article eight, chapter twelve of this code as
appropriated by the Legislature.
§18-7A-40. Higher education employees.
Nothing in this article or article seven-b of this chapter
shall be construed:
(1) To be in conflict with section four-a, article twenty-
three, chapter eighteen of this code; or
(2) To affect the membership of higher education employees who
are currently members of either the State Teachers Retirement
System created in this article or the Teachers' Defined
Contribution Retirement System created in article seven-b of this
chapter: Provided, That if the merger contemplated by article
seven-c of this chapter occurs, any higher education employees who
are currently members of the Teachers' Defined Contribution
Retirement System shall become members of the Teachers Retirement
System.
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly require a
different meaning:
(1) "Defined contribution system" or "system" means the
Teachers' Defined Contribution Retirement System created and
established by this article:
(2) "Existing retirement system" means the State Teachers
Retirement System established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or
employs a member of the existing retirement system;
(4) "Consolidated board" or "board" means the Consolidated
Public Retirement Board created and established pursuant to article ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if
regularly employed for full-time service: (A) Any person employed
for instructional service in the public schools of West Virginia;
(B) principals; (C) public school librarians; (D) superintendents
of schools and assistant county superintendents of schools; (E) any
county school attendance director holding a West Virginia teacher's
certificate; (F) members of the research, extension, administrative
or library staffs of the public schools; (G) the State
Superintendent of Schools, heads and assistant heads of the
divisions under his or her supervision, or any other employee under
the State Superintendent performing services of an educational
nature; (H) employees of the State Board of Education who are
performing services of an educational nature; (I) any person
employed in a nonteaching capacity by the State Board of Education,
any county board of education or the State Department of Education
if that person was formerly employed as a teacher in the public
schools; (J) all classroom teachers, principals and educational
administrators in schools under the supervision of the Division of
Corrections and the Department of Health and Human Resources; (K)
any person who is regularly employed for full-time service by any
county board of education or the State Board of Education and (L)
the administrative staff of the public schools including deans of
instruction, deans of men and deans of women, and financial and
administrative secretaries;
(6) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment
term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least
ten months, a month being defined as twenty employment days:
Provided, That no more than one year of service may be accumulated
in any twelve-month period;
(8) "Employer" means the agency of and within the State of
West Virginia which has employed or employs a member;
(9) "Compensation" means the full compensation actually
received by members for service whether or not a part of the
compensation is received from other funds, federal or otherwise,
than those provided by the state or its subdivisions;
(10) "Public schools" means all publicly supported schools,
including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the
employee's regular pay periods, and deposited into the member's
individual annuity account within the Defined Contribution
Retirement System;
(12) "Employer contribution" means an amount deposited into
the member's individual annuity account on a periodic basis
coinciding with the employee's regular pay period by an employer
from its own funds;
(13) "Annuity account" or "annuity" means an account
established for each member to record the deposit of member
contributions and employer contributions and interest, dividends or
other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active
employment of a participating employer and completion of all
conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical
incapacity requiring absence from employment service for at least
six months: Provided, That the incapacity is shown by an
examination by a physician or physicians selected by the Board:
Provided, however, That for employees hired on or after the first
day of July, two thousand five, permanent, total disability means
an inability to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can
be expected to result in death, or has lasted or can be expected to
last for a continuous period of not less than twelve months and the
incapacity is so severe that the member is likely to be permanently
unable to perform the duties of the position the member occupied
immediately prior to his or her disabling injury or illness.
(16) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending on the
following thirtieth day of June;
(17) "Required beginning date" means the first day of April of
the calendar year following the later of: (a) The calendar year in
which the member attains age seventy-one and one-half years; or (b)
the calendar year in which the member retires or otherwise ceases
employment with a participating employer after having attained the
age of seventy and one-half years; and
(18) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
§18-7B-7. Participation in Teachers' Defined Contribution
Retirement System; limiting participation in
existing teachers retirement system.
(a) Beginning the first day of July, one thousand nine hundred
ninety-one, and except as provided in this section, the Teachers'
Defined Contribution Retirement System shall be the single
retirement program for all new employees whose employment commences
on or after that date and all new employees shall be required to
participate. No additional new employees except as may be provided
in this section may be admitted to the existing Teachers Retirement
System.
(b) Members of the existing Teachers Retirement System whose
employment continues beyond the first day of July, one thousand
nine hundred ninety-one, and those whose employment was terminated
after the thirtieth day of June, one thousand nine hundred
ninety-one, under a reduction in force are not affected by
subsection (a) of this section and shall continue to contribute to
and participate in the existing Teachers Retirement System without
a change in plan provisions or benefits.
(c) Any person who was previously a member of the Teachers
Retirement System and who left participating employment before the
creation of the Defined Contribution System on the first day of
July, one thousand nine hundred ninety-one, and who later returned
to participating employment after the effective date of this
section has the right to elect to return to the existing Teachers Retirement System or to elect to participate in the Defined
Contribution System. The election shall be made at the time of his
or her reemployment, is irrevocable and shall be made upon forms
approved by and filed with the West Virginia Consolidated Public
Retirement Board.
(d) Any person who was, prior to the first day of July, one
thousand nine hundred ninety-one, a member of the existing Teachers
Retirement System who left participating employment before the
creation of the Teachers' Defined Contribution Retirement System on
the first day of July, one thousand nine hundred ninety-one, and
who later returned to participating employment after that date and
who was precluded from returning to the existing Teachers
Retirement System as a result of prior provisions of this section,
may elect, pursuant to the provisions of this section, readmission
to the existing Teachers Retirement System: Provided, That persons
who are eligible to, and who make the election to, terminate their
participation in the Defined Contribution System and to return to
participation in the existing Teachers Retirement System as
provided in this section shall make the election, on a form
approved by and filed with the West Virginia Consolidated Public
Retirement Board on or before the thirtieth day of June, two
thousand two: Provided, however, That as a condition of the right
of readmission to the existing Teachers Retirement System, a person
making the election provided in this section whose Defined
Contribution Account had not, prior to election, been divided by a
qualified domestic relations order, shall pay an additional contribution to the existing Teachers Retirement System equal to
one and one-half percent of his or her annual gross compensation
earned for each year during which he or she participated in the
Defined Contribution System and shall consent and agree to the
transfer of his or her total account balance in the Defined
Contribution System as of the most recent plan valuation
immediately preceding his or her transfer to the existing Teachers
Retirement System. For a person making the election provided in
this section whose defined contribution account had, prior to the
election, previously been divided by a qualified domestic relations
order, the cost to transfer to the existing Teachers Retirement
System shall be actuarially determined by the Consolidated Public
Retirement Board. Upon verification of that person's eligibility to
return to participation in the existing Teachers Retirement System
and the tender and transfer of funds as provided in this
subsection, a person making this election shall receive service
credit for the time the member participated in the Defined
Contribution System as if his or her participation had been in the
existing Teachers Retirement System: Provided further, That the
right to terminate participation in the Defined Contribution System
and to resume participation in the existing Teachers Retirement
System as provided in this section is irrevocable and shall not
apply to any person who, while a member of the Teachers Retirement
System, voluntarily elected to terminate his or her membership in
the Teachers Retirement System and to become a participant in the
Defined Contribution System pursuant to section eight of this article.
(e) Any employee whose employment with an employer was
suspended or terminated while he or she served as an officer with
a statewide professional teaching association, is eligible for
readmission to the existing retirement system in which he or she
was a member.
(f) An employee whose employment with an employer or an
existing employer is suspended as a result of an approved leave of
absence, approved maternity or paternity break in service or any
other approved break in service authorized by the Board is eligible
for readmission to the existing retirement system in which he or
she was a member.
(g) In all cases in which a question exists as to the right of
an employee to readmission to membership in the existing Teachers
Retirement System, the Consolidated Public Retirement Board shall
decide the question.
(h) Any individual who is not a "member" or "employee" as
defined by section two of this article and any individual who is a
leased employee is not eligible to participate in the Teachers
Defined Contribution System. For purposes of this section, 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. In all cases
in which a question exists as to whether an individual is eligible
for membership in this system, the Consolidated Public Retirement
Board shall decide the question.
(i) Effective the first day of July, two thousand five and
continuing through the first day of two thousand six, any employee
of River Valley Child Development Services, Inc., who is a member
of the teachers' defined contribution retirement system may elect
to withdraw from membership and join the private pension plan
provided by River Valley Child Development Services, Inc.
(j) River Valley Child Development Services, Inc., and its
successors in interest shall provide for their employees a pension
plan in lieu of the teachers' defined contribution retirement
system on or before the first day of July, two thousand five, and
continuing thereafter during the existence of the River Valley
Child Development Services, Inc., and its successors in interest.
All new employees hired after the thirtieth day of June, two
thousand five, shall participate in the pension plan in lieu of the
teachers' defined contribution retirement system.
(k) The administrative body of River Valley Child Development
Services, Inc., shall, on or before the first day of June, two
thousand five, give written notice to each employee who is a member
of the teachers' defined contribution retirement system of the
option to withdraw from or remain in the system. The notice shall
include a copy of this section and a statement explaining the
member's options regarding membership. The notice shall include a
statement in plain language giving a full explanation and actuarial
projection figures, prepared by an independent actuary, in support
of the explanation regarding the individual member's current
account balance, vested and nonvested, and his or her projected return upon remaining in the teacher's defined contribution
retirement system until retirement, disability or death, in
comparison with the projected return upon withdrawing from the
teachers' defined contribution retirement system and joining a
private pension plan provided by River Valley Child Development
Center, Inc., and remaining therein until retirement, disability or
death. The administrative body shall keep in its records a
permanent record of each employee's signature confirming receipt of
the notice.
§18-7B-7a. Plan closed to persons employed for the first time
after June, 2005; former employees.
The Retirement System created and established in this article
shall be closed and no new members accepted in the system after the
thirtieth day of June, two thousand five. Notwithstanding the
provisions of sections seven and eight of this article, all persons
who are regularly employed for full-time service as a member or an
employee whose initial employment commences after the thirtieth day
of June, two thousand five, shall become a member of the State
Teachers' Retirement System created and established in article
seven-a of this chapter: Provided, That any person rehired after
the thirtieth day of June, two thousand five, shall become a member
of the Teachers' Defined Contribution Retirement System created and
established in this article, or of the Teachers Retirement System
created and established in article seven-a of this chapter,
depending upon which system he or she last contributed to while he
or she was employed with an employer mandating membership and contributions to one of those plans: Provided, however, That if,
and only if, the Teachers' Defined Contribution Retirement System
is merged and consolidated with the Teachers Retirement System
pursuant to the provisions of article seven-c of this chapter, then
all employees shall be a member of the Teachers Retirement System
as of the first day of July, two thousand six, as provided in
article seven-c of this chapter.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the Defined Contribution
System shall contribute four and one-half percent of his or her
gross compensation by salary deduction. The salary deductions
shall be made by the employer and shall be paid to the Teachers'
Defined Contribution Retirement System within fifteen days of the
end of the pay period: Provided, That the Board may require any
employer to make the payments within such shorter period as it may
determine, upon at least sixty days notice to the employer, if the
Board determines the employer has the technological capacity to
transfer the funds within the shorter period. The employer
payments shall be remitted by the Board within five working days to
the private pension, insurance, annuity, mutual fund, or other
qualified company or companies designated by the Board to
administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to
an account or accounts established in the name of the member and
held in trust for the benefit of the member. An account agreement
shall be issued to each member setting forth the terms and conditions under which contributions are received, and the
investment and retirement options available to the member. The
Board shall propose for legislative approval in accordance with
article three, chapter twenty-nine-a of this code, pursuant to
section six of this article, rules defining the minimum
requirements for the investment and retirement options to be
provided to the members.
(c) The legislative rules proposed by the Board, to the extent
not inconsistent with the applicable provisions of the Internal
Revenue Code of the United States, shall provide for varied
retirement options including, but not limited to:
(1) Lump sum or periodic payment distributions;
(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;
(4) Variable annuities which gradually increase monthly
retirement payments: Provided, That said increased payments are
funded solely by the existing current value of the member's account
at the time the member's retirement payments commence and not, to
any extent, in a manner which would require additional employer or
employee contributions to any member's account after retirement or
after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can
be made to members from their annuity account balances prior to
having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer terminates after the completion of six complete years of employment
service is eligible to terminate his or her annuity account and
receive a distribution from the member's annuity account, in an
amount equal to the member's contribution plus one third of the
employer contributions and any earnings thereon. Any member whose
employment with a participating employer terminates after the
completion of nine complete years of employment service is eligible
to terminate his or her annuity account and receive a distribution
from the member's annuity account, in an amount equal to the
member's contribution plus two thirds of the employer's
contributions and any earnings thereon. Any member whose
employment with a participating employer terminates after the
completion of twelve complete years of employment service is
eligible to terminate his or her annuity account and receive a
distribution of all funds contributed and accumulated in his or her
annuity account. Any member whose employment with a participating
employer terminates prior to the completion of six complete years
of employment service is eligible to terminate his or her annuity
account and receive a distribution from the member's annuity
account, in an amount equal to the member's contribution plus any
earnings thereon: Provided, That on the death or permanent, total
disability of any member, that member is eligible to terminate his
or her annuity account and receive all funds contributed to or
accumulated in his or her annuity account.
(b) (1) Upon termination of employment, regardless of whether
the member has taken a distribution of all or a portion of his or her vested account, the remaining balance, if any, in the member's
employer account that is not vested shall be remitted and paid into
a suspension account to be administered by the Board. The Board
shall propose rules for legislative approval in accordance with
article three, chapter twenty-nine-a of this code regarding the
distribution of any balance in the special account created by this
section: Provided, That any funds in the account shall be used
solely for the purpose of reducing employer contributions in future
years.
(2) Any account balances remitted to the suspension account
herein shall be maintained by the Board in the suspension account
in the name of the terminated employee for a period of five years
following the member's termination of employment. For each
terminated employee at the culmination of the five-year period, the
Board shall certify in writing to each contributing employer the
amount of the account balance plus earnings thereon attributable to
each separate contributing employer's previously terminated
employee's account which has been irrevocably forfeited due to the
elapse of a five-year period since termination pursuant to section
sixteen of this article.
(c) Upon certification to the several contributing employers
of the aggregate account balances plus earnings thereon which have
been irrevocably forfeited pursuant to this section, the several
contributing employers shall be permitted in the next succeeding
fiscal year or years to reduce their total aggregate contribution
requirements pursuant to section seventeen of this article, for the then current fiscal year by an amount equal to the aggregate
amounts irrevocably forfeited and certified as such to each
contributing employer: Provided, That should the participating
employer no longer be contributing to the Defined Contribution
System, any funds in the account shall be paid directly to the
employer.
(d) Upon the use of the amounts irrevocably forfeited to any
contributing employer as a reduction in the then current fiscal
year contribution obligation and upon notification provided by the
several contributing employers to the Board of their intention to
use irrevocably forfeited amounts, the Board shall direct the
distribution of the irrevocably forfeited amounts from the
suspension account to be deposited on behalf of the contributing
employer to the member annuity accounts of its then current
employees pursuant to section seventeen of this article: Provided,
That notwithstanding any provision of this article to the contrary,
when a member is or has been elected to serve as a member of the
Legislature, and the proper discharge of his or her duties of
public office requires that member to be absent from his or her
teaching, nonteaching or administrative duties, the time served in
discharge of his or her duties of the legislative office are
credited as time served for purposes of computing service credit,
regardless when this time was served: Provided, however, That the
Board may not require any additional contributions from that member
in order for the Board to credit him or her with the contributing
service credit earned while discharging official legislative duties: Provided further, That nothing herein may be construed to
relieve the employer from making the employer contribution at the
member's regular salary rate or rate of pay from that employer on
the contributing service credit earned while the member is
discharging his or her official legislative duties. These employer
payments shall commence as of the first day of July, two thousand
three: And provided further, That any member to which the
provisions of this subsection apply may elect to pay to the Board
an amount equal to what his or her contribution would have been for
those periods of time he or she was serving in the Legislature.
.§18-7B-12a. Federal 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 Defined Contribution System. This
section applies to plan years beginning after the thirty-first day
of December, one thousand nine hundred eighty-six. Notwithstanding
anything in this system 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 the
regulations thereunder, including without limitation the incidental
death benefit provisions of Section 401 (a) (9)(G) of the Internal
Revenue Code and the regulations thereunder. For this purpose, the
following provisions apply:
(a) The payment of benefits under the Defined Contribution
System 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 system 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 system 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 participant 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
years; or
(B) The earlier of (i) The thirty-first day of December of 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.
(d) For purposes of this section, any amount paid to a child
of a member will be treated as if it had been paid to the surviving
spouse of the member if the remaining amount becomes payable to the
surviving spouse when the child reaches the age of majority.
§18-7B-16. Years of employment service.
(a) A member of the Defined Contribution System who terminates
employment with a participating employer and does not remove any
funds from his or her vested employee and employer account, or who
removes the funds and repays them withing five years after
termination, and becomes reemployed with a participating employer
within five years does not forfeit any amounts placed into the
suspension account pursuant to section eleven of this article and
they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for
vesting purposes under section eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any
legislative rule contained in series three, involuntary cash-outs
to members may not be made after the thirtieth day of June, two thousand five.
ARTICLE 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT
SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the "Teachers' Retirement Equity
Act".
§18-7C-2. Legislative findings and purpose.
(a) The Legislature declares that the State of West Virginia
and its citizens have always believed in a strong public education
system. The Constitution of this State mandates a thorough and
efficient public education system. The Legislature notes that the
quality of our state's education system is dependent, inter alia,
upon the motivation and quality of its teachers and educational
service personnel.
(b) The Legislature finds and declares that the State of West
Virginia is privileged to be the home of some of the best teachers
and education service personnel in this nation, and that our
teachers and education service personnel are dedicated and hard
working individuals. The Legislature further finds and declares
that our teachers and education service personnel deserve a
retirement program whereby they know in advance what their
retirement benefit will be, a defined benefit retirement program
where our teachers and service personnel will not have to bear the
risk of investment performance to receive their full retirement
benefit. The Legislature notes that uncertainty exists in the
investment markets, especially in the post September eleventh era, and that placing this risk and uncertainty upon the state in the
form of a defined benefit plan will protect and ensure a meaningful
retirement benefit for our teachers and educational service
personnel.
(c) The Legislature declares that it is in the best interests
of the teachers and public education in this state and conducive to
the fiscal solvency of the Teachers Retirement System that the
Teachers' Defined Contribution Retirement System be merged with the
State Teachers Retirement System.
(d) The Legislature also finds that a fiscally sound
retirement program with an ascertainable benefit aids in the
retention and recruitment of teachers and school service personnel,
and that the provisions of this article are designed to accomplish
the goals set forth in this section.
(e) The Legislature has studied this matter diligently and in
making the determination to merge the two plans has availed itself
of an actuarial study of the proposed merger by the actuary of the
Consolidated Public Retirement Board as well as engaging the
service of two independent actuaries.
(f) The Legislature further finds and declares that members of
a defined contribution system who must bear the attendant market
risk and performance of their investments are truly being provided
a significant and greater benefit where the defined contribution
system is replaced with a defined benefit system in which the
employer bears the risk of market fluctuations and investment
performance, especially where those members decide through an election process whether to trade the defined contribution system
for a defined benefit system.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Defined Contribution System" means the Teachers Defined
Contribution System created and established in article seven-b of
this chapter.
(2) "Existing retirement system" or "State Teachers Retirement
System" means the State Teachers Retirement System created and
established in article seven-a of this chapter.
(3) "Board" means the Consolidated Public Retirement Board
created and established in article ten-d, chapter five of this code
and its employees.
(4) "Member" means and includes any person who has at least
one dollar in the Defined Contribution System.
(5) "Assets" or "all assets" means all member contributions,
employer contributions and interest or asset appreciation in a
member's Defined Contribution Account, less any applicable fees as
approved by the Board.
(6) "Salary" or "annual salary" means the annual contract
salary for those persons working in accordance with an employment
contract and in any other event as an annualized amount determined
by multiplying a person's hourly rate of pay by two thousand eighty
hours.
(7) "Date of merger" means, in the event of a positive vote on the merger, the first day of July, two thousand six.
§18-7C-4. Merger.
On the first day of July, two thousand six, the Teachers'
Defined Contribution Retirement System created and established in
this article shall be merged and consolidated with the Teachers
Retirement System created and established in article seven-a of
this chapter, pursuant to the provisions of this article:
Provided, That if the majority of the voting members of the
Teachers' Defined Contribution Retirement System do not elect in
favor of the merger, then all of the provisions of this article are
void and of no force and effect, and the Defined Contribution
System created and established in article seven-b of this chapter
shall continue as the retirement system for all members in that
system as of the thirtieth day of June, two thousand six:
Provided, however, that prior to the merger and consolidation the
State shall deposit into the Teachers Retirement System the amount
necessary to cover any additional unfunded actuarial accrued
liability which results to the system on the date that the assets
and liabilities of the Teachers Defined Contribution Retirement
System are merged into the Teachers Retirement System as certified
by the Consolidated Public Retirement Board.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two
thousand five, the Consolidated Public Retirement Board shall begin
an educational program with respect to the merger of the Defined
Contribution Plan with the State Teachers Retirement System. This education program shall address, at a minimum, the law providing
for the merger, the mechanics of the merger, the election process,
relevant dates and time periods, the benefits, potential advantages
and potential disadvantages if members fail or refuse to approve
the merger and thereby elect to remain in the Defined Contribution
System, the benefits, potential advantages and potential
disadvantages of becoming a member of the Teachers Retirement
System, potential state and federal tax implications in general
attendant to the various options available to the members and any
other pertinent information considered relevant by the Board. The
Board shall provide this information through its website, by
written materials, electronic materials or both written and
electronic materials delivered to each member and by classes or
seminars, if, in the best judgment of the Board, the classes and
seminars are required to provide the necessary education for
members to make an informed decision with respect to the election.
The Board shall also provide this information through computer
programs, or, at the discretion of the Board, through a program of
individual counseling which is optional on the part of the member,
and by any other educational program or programs considered
necessary by the Board.
(b) The Board shall provide each member with a copy of the
written or electronic educational materials and with a copy of the
notice of the election. The notice shall provide full and
appropriate disclosure regarding the merger and of the election
process, including the date of the election. The Board shall also cause notice of the election to be published in at least ten
newspapers of general circulation in this state. This notice shall
be by Class III legal advertisement published in accordance with
the provisions of article three, chapter fifty-nine of this code.
The Board shall cause this notice to be published not later than
thirty days prior to the beginning of the election period and not
sooner than sixty days prior to the beginning of the election
period.
(c) It is the responsibility of each member of the Defined
Contribution Plan to keep the Board informed of his or her current
address. If a member does not keep the Board informed of his or
her current address, he or she is considered to have waived his or
her right to receive any information from the Board with respect to
the purposes of this article.
(d) Once the Board has complied with the provisions of this
section, every member of the Defined Contribution Plan is
considered to have actual notice of the election and all matters
pertinent to the election.
§18-7C-6. Conversion of assets from Defined Contribution System to
State Teachers Retirement System.
(a) If a majority of members voting elect to merge the Defined
Contribution System into the State Teachers Retirement System, the
consolidation and merger shall be governed by the provisions of
this article, the Defined Contribution Retirement System shall not
exist after the thirtieth day of June, two thousand six, and all
members of that system shall become members of the State Teachers Retirement System as provided in this article.
(b) Following the election, if the vote is in favor of the
merger, the Board shall transfer all assets in the defined
contribution account into the State Teachers Retirement System and
members have the option to pay into the State Teachers Retirement
System a one and one-half of one percent contribution for service
in the Defined Contribution Plan being recognized in the State
Teachers Retirement System. This contribution shall be calculated
based on the member's salary as of the thirtieth day of June, two
thousand five, and the members attained age on that date, applying
both an annual backward salary scale projection from that date for
prior years based upon the salary scale assumption applied in the
actuarial valuation dated the first day of July, two thousand four,
for the Teachers Retirement System and a one year forward salary
scale projection for the year ending on the thirtieth day of June,
two thousand six.
(c) The Board shall make available to the members a loan in
accordance with the provisions of section thirty-four, article
seven-a of this chapter to be used by the members to pay all or a
part of the one and one-half percent amount established in this
section. Notwithstanding any provision of this code, any rule or
any policy of the Board to the contrary, the interest rate on any
loan used to pay the one and one-half percent amount may not exceed
seven and one-half percent per annum and the amount total borrowed
for this section may not exceed twelve thousand dollars. In the
event a plan loan is used to pay the one and one-half percent, the Board shall make any necessary actuarial adjustments at the time
the loan is made. The Board shall make this plan loan available
for members until the thirtieth day of June, two thousand seven.
(d) The Board shall develop and institute a payroll deduction
program for the repayment of the plan loan established in this
section.
(e) If the merger and consolidation is elected by a majority
of those persons voting, as of the first day of July, two thousand
six, the members' contribution rate shall become six percent of his
or her salary or wages and all members who make a contribution into
the State Teachers Retirement System on or after the first day of
July, two thousand six, shall be governed by the provisions of
article seven-a of this chapter, subject to the provisions of this
article.
(f) In the event a member has withdrawn or cashed out part of
his or her defined contribution plan, that member will not be given
credit for those moneys cashed out or withdrawn. The Board shall
make an actuarial determination as to the amount of credit a member
loses on the amounts he or she has withdrawn or cashed out, which
shall be expressed as a loss of service credit: Provided, That a
member may repay those amounts he or she previously cashed out or
withdrew, along with interest determined by the Board and receive
the same credit as if the withdrawal or cash out never occurred.
If the repayment is five or more years following the cash out or
withdrawal, then he or she must repay any forfeited employer
contribution account balance along with interest determined by the Board in addition to repaying the cash out or withdrawn amount.
(g) Where the member has cashed out of his or her teacher
defined contribution plan account balance after the last day of
June, two thousand one, and that member wishes to repurchase
defined contribution plan service after the thirtieth day of June,
two thousand six, then the member shall repay the teachers
retirement plan.
(h) Any prior service in the State Teachers Retirement System
a member may have is not affected by the provisions of this
article.
§18-7C-7. Service credit in State Teachers Retirement System
following merger.
Any member transferring all of his or her assets from the
Defined Contribution System to the State Teachers Retirement System
pursuant to the provisions of this article, and who has not made
any withdrawals from his or her defined contribution plan, is
entitled to service credit in the State Teachers Retirement System
for each year, or part of a year, as governed by the provisions of
article seven-a of this chapter, the member worked and contributed
to the Defined Contribution Plan. Any member who has made
withdrawals or cash outs will receive service credit based upon the
amounts transferred and the Board shall make the appropriate
actuarial determination of and the appropriate actuarial adjustment
to the service credit the member will receive.
§18-7C-8. Election; Board may contract for professional services.
(a) The Board shall arrange for and hold an election for the members of the defined contribution plan on the issue of merging
and consolidating the Defined Contribution Plan into the State
Teachers Retirement Plan with the result being that, if a majority
of the members casting ballots vote in the positive on the issue,
all members of the Defined Contribution Plan will transfer, or have
transferred, all assets held by them or on their behalf in the
Defined Contribution Plan to, and they shall become members of and
be entitled to the benefits of, the State Teachers Retirement
System and be governed by the provisions of the State Teachers
Retirement System subject to the provisions of this article:
Provided, That at least one-half of the members of the Defined
Contribution Plan must vote on the question in order for the
election to be valid and binding.
(b) Any person who has one dollar or more in a defined
contribution account created and established pursuant to article
seven-b of this chapter, may vote on the question of the merger.
(c) The Board may retain the services of the professionals it
considers necessary to: (1) Assist in the preparation of
educational materials for members of the Defined Contribution Plan
to inform these members of their options in the election; (2)
assist in the educational process of the members; (3) assist in the
election process and the election; and (4) ensure compliance with
all relevant state and federal laws.
(d) Due to the time constraints inherent in the merger process
set forth in this article in specific, and due to the nature of the
professional services required by the Consolidated Public Retirement Board in general, the provisions of article three,
chapter five-a of this code, relating to the Division of Purchasing
of the Department of Administration do not apply to any contracts
for any actuarial services, investment services, legal services or
other professional services authorized under the provisions of this
article.
(e) The election provided for in this section may be held
through certified mail or in any other way the Board determines is
in the best interest of the members. Each ballot shall contain the
following language, in bold fifteen point type: "By casting this
ballot I am making an educated, informed and voluntary choice as to
my retirement and the retirement system of which I wish to be a
member. I am also certifying that I understand the consequences of
my vote in this election." Each ballot shall be signed by the
member voting. The Board shall retain the ballots in a permanent
file. Any unsigned ballot is void.
(f) The election period shall begin not later than the first
day of March, two thousand six, and the Board shall ascertain the
results of the election not later than the last day of March, two
thousand six. The Board shall certify the results of the election
to the Governor, to the Legislature and to the members not later
than the fifth day of April, two thousand six.
(g) The election period shall terminate and no votes may be
cast or counted after the twelfth day of March, two thousand six,
except that if the election is conducted through the United States
mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand six, in order to be counted.
(h) The Board shall take all necessary steps to see that the
merger does not affect the qualified status with the Internal
Revenue Service of either retirement plan.
§18-7C-9. Election considered final.
(a) The election is considered final and each member, whether
he or she votes, or fails to vote, shall thereafter be bound by the
results of the election. Every member is considered to have made
an informed, educated, knowing and voluntary decision and choice
with respect to the election. Those members who fail or refuse to
vote are also considered to have made an informed, educated,
knowing and voluntary decision and choice with respect to the
election and with respect to voting and shall be bound by the
results of the election as if he or she voted in the election.
(b) Only one election may be held pursuant to the provisions
of this article on the issue of merging and consolidating the
Defined Contribution Plan with the State Teachers Retirement Plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against
his or her defined contribution account is allowed to repurchase
service in the State Teachers Retirement System by repaying any
moneys previously distributed to the alternate payee along with the
interest as set by the Board: Provided, That a member shall repay
any amounts under this section by the last day of June, two
thousand twelve. The provisions of this section are void and of no
effect if the members of the Defined Contribution Plan fail to elect to merge and consolidate the Defined Contribution Plan with
the State Teachers Retirement System.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger
provided in this article occurs, is subject to the vesting schedule
set forth in article seven-a of this chapter: Provided, That if a
member is vested under the Defined Contribution Plan and his or her
last contribution was not made to the State Teachers Retirement
System, that member is subject to the vesting schedule set forth in
article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the Defined Contribution Plan who has made
a contribution to the State Teachers Retirement System after the
date of merger is guaranteed a minimum benefit equal to his or her
contributions to the Defined Contribution Plan as of the thirtieth
day of June, two thousand six, plus his or her vested employer
account balance as of that date, as stated by the Board or the
Board's professional contractor.
(b) A member of the Defined Contribution Plan who has made
contributions to the State Teachers Retirement System after the
thirtieth day of June, two thousand six, where the Defined
Contribution Plan has been merged into the State Teachers
Retirement System pursuant to the provisions of this article, shall
have, upon eligibility to receive a distribution under article
seven-a of this chapter, at a minimum, the following three options:
(1) The right to receive an annuity from the State Teachers Retirement System created and established in article seven-a of
this chapter, based upon the benefit and vesting provisions of that
article; (2) the right to withdraw from the State Teachers
Retirement Plan and receive his or her member accumulated
contributions plus regular interest thereon as set forth in article
seven-a of this chapter; or (3) the right to withdraw and receive
his or her original vested defined contribution account balance as
of the date of the merger as determined by the Board or its
professional third party benefits administrator pursuant to the
vesting provisions of section twelve of this article.
(c) Any member of the Teachers Defined Contribution System who
makes no contribution to the State Teachers Retirement System
following approval of the merger and following the date of merger
is guaranteed the receipt of the amount in his or her total vested
account in the Defined Contribution Plan on the date of merger plus
interest thereon at four percent accruing from the date of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by
the Board following the election, if the result of the election is
in favor of merger and consolidation, may petition the Board and
receive an administrative hearing on the matter in dispute. The
administrative decision may be appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or
void, the remaining provisions of this article shall be void and of
no effect and, to this end, the provisions of this article are hereby declared to be nonseverable.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-6c. Limitations on benefit increases.
(a) The state shall not increase any existing benefits or
create any new benefits for any retirees or beneficiaries currently
receiving monthly benefit payments from the system, other than an
increase in benefits or new benefits effected by operation of law
in effect on the effective date of this article, in an amount that
would exceed more than one percent of the accrued actuarial
liability of the system as of the last day of the preceding fiscal
year as determined in the annual actuarial valuation for the plan
completed for the Consolidated Public Retirement Board as of the
first day of the following fiscal year as of the date the
improvement is adopted by the Legislature.
(b) If any increase of existing benefits or creation of new
benefits for any retirees or beneficiaries currently receiving
monthly benefit payments under the system, other than an increase
in benefits or new benefits effected by operation of law in effect
on the effective date of this article, causes any additional
unfunded actuarial accrued liability in any of the West Virginia
state sponsored pension systems as calculated in the annual
actuarial valuation for the plan during any fiscal year, the
additional unfunded actuarial accrued liability of the system shall
be fully amortized over no more than the six consecutive fiscal
years following the date the increase in benefits or new benefits become effective as certified by the consolidated public retirement
board. Following the receipt of the certification of additional
actuarial accrued liability, the Governor shall submit the amount
of the amortization payment each year for the system as part of the
annual budget submission or in an executive message to the
Legislature.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, the computation of annuities or benefits for
active members due to retirement, death or disability as provided
for in the system shall not be amended in such a manner as to
increase any existing benefits or to provide for new benefits.
(d) The provisions of this section terminate effective the
first day of July, two thousand nineteen: Provided, That if bonds
are issued pursuant to article eight, chapter twelve of this code,
the provisions of this section shall not terminate while any of the
bonds are outstanding.