ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 207
(Senators Foster and Plymale, original sponsors)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §7-14D-7, §7-14D-9c, §7-14D-14, §7-14D-
15, §7-14D-16, §7-14D-23, §7-14D-24 and §7-14D-30 of the Code
of West Virginia, 1931, as amended, all relating to the Deputy
Sheriff Retirement System Act; correcting errors; permitting
rollovers of any dollar amount; providing for an onset date
for disability retirement benefits; providing for termination
of disability retirement benefits of a retirant who refuses to
submit to a medical examination or provide a certification
statement by his or her physician of continued disability;
removing option for term insurance to repay loan; providing
for subsequent loan on repayment of prior loan; clarifying
eligibility requirements of certain sheriffs; and permitting
collection of fees for late payment from employers.
Be it enacted by the Legislature of West Virginia:
That §7-14D-7, §7-14D-9c, §7-14D-14, §7-14D-15, §7-14D-16, §7-14D-23, §7-14D-24 and §7-14D-30 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 14D. DEPUTY SHERIFF RETIREMENT SYSTEM ACT.
§7-14D-7. Members' contributions; employer contributions;
correction of errors.
(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 said article. 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.
(c) 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 is
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. Any
accumulating interest owed on the employee and employer
contributions resulting from the employer error shall be the
responsibility of the participating public employer. Reinstatement
interest shall accumulate in accordance with legislative rule 162
CSR 7. 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.
§7-14D-9c. Direct rollovers.
(a) This section applies to distributions made on or after the
first day of January, one thousand nine hundred ninety-three.
Notwithstanding any provision of this article to the contrary that
would otherwise limit a distributee's election under this plan, a
distributee may elect, at the time and in the manner prescribed by
the board, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the
distributee in a direct rollover. For purposes of this section,
the following definitions apply: (1) "Eligible rollover
distribution" means any distribution of all or any portion of the
balance to the credit of the distributee, except that an eligible
rollover distribution does not include any of the following: (i) Any distribution that is one of a series of substantially equal
periodic payments not less frequently than annually made for the
life or life expectancy of the distributee or the joint lives or
the joint life expectancies of the distributee and the
distributee's designated beneficiary or for a specified period of
ten years or more; (ii) any distribution to the extent the
distribution is required under Section 401(a)(9) of the Internal
Revenue Code; (iii) the portion of any distribution that is not
includable in gross income determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities; and (iv) any hardship distribution described in Section
401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For
distributions after the thirty-first day of December, two thousand
one, a portion of a distribution shall not fail to be an eligible
rollover distribution merely because the portion consists of
after-tax employee contributions which are not includable in gross
income. However, this portion may be paid only to an individual
retirement account or annuity described in Section 408(a) or (b) of
the Internal Revenue Code or to a qualified defined contribution
plan described in Section 401(a) or 403(a) of the Internal Revenue
Code that agrees to separately account for amounts transferred,
including separately accounting for the portion of the distribution
which is includable in gross income and the portion of the
distribution which is not includable.
(2) "Eligible retirement plan" means an individual retirement
account described in Section 408(a) of the Internal Revenue Code,
an individual retirement annuity described in Section 408(b) of the
Internal Revenue Code, an annuity plan described in Section 403(a)
of the Internal Revenue Code or a qualified plan described in
Section 401(a) of the Internal Revenue Code that accepts the
distributee's eligible rollover distribution
: Provided, That in the
case of an eligible rollover distribution to the surviving spouse,
an eligible retirement plan is an individual retirement account or
individual retirement annuity. For distributions after the thirty-
first day of December, two thousand one, an eligible retirement
plan also means an annuity contract described in Section 403(b) of
the Internal Revenue Code and an eligible plan under Section 457(b)
of the Internal Revenue Code which is maintained by a state,
political subdivision of a state or any agency or instrumentality
of a state or political subdivision of a state and which agrees to
separately account for amounts transferred into the plan from this
system.
(3) "Distributee" means an employee or former employee. In
addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Internal Revenue Code with respect
to governmental plans, are distributees with regard to the interest of the spouse or former spouse.
(4) "Direct rollover" means a payment by the plan to the
eligible retirement plan.
(b) Nothing in this section shall be construed as permitting
rollovers to this plan or any other retirement system administered
by the board.
§7-14D-14. Awards and benefits for disability -- Duty related.
(a) Any member who after the effective date of this article
and during covered employment: (1) Has been or becomes either
totally or partially disabled by injury, illness or disease; and
(2) the disability is a result of an occupational risk or hazard
inherent in or peculiar to the services required of members; or (3)
the disability was incurred while performing law-enforcement
functions during either scheduled work hours or at any other time;
and (4) in the opinion of the board, the member is by reason of the
disability unable to perform adequately the duties required of a
deputy sheriff, is entitled to receive and shall be paid from the
fund in monthly installments the compensation under either
subsection (b) or (c) of this section.
(b) If the member is totally disabled, the member shall
receive ninety percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
member's disability award or the shorter period if the member has
not worked twelve months.
(c) If the member is partially disabled, the member shall
receive forty-five percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
member's disability award or the shorter period if the member has
not worked twelve months.
(d) If the member remains totally disabled until attaining
sixty-five years of age, the member shall then receive the
retirement benefit provided for in sections eleven and twelve of
this article.
(e) If the member remains partially disabled until attaining
sixty years of age, the member shall then receive the retirement
benefit provided for in sections eleven and twelve of this article.
(f) The disability benefit payments will begin the first day
of the month following termination of employment and receipt of the
disability retirement application by the Consolidated Public
Retirement Board.
§7-14D-15. Same -- Due to other causes.
(a) Any member who after the effective date of this article
and during covered employment: (1) Has been or becomes totally or
partially disabled from any cause other than those set forth in
section fourteen of this article and not due to vicious habits,
intemperance or willful misconduct on his or her part; and (2) in
the opinion of the board, he or she is by reason of the disability
unable to perform adequately the duties required of a deputy sheriff, is entitled to receive and shall be paid from the fund in
monthly installments the compensation set forth in either
subsection (b) or (c) of this section.
(b) If the member is totally disabled, he or she shall receive
sixty-six and two-thirds percent of his or her average full monthly
compensation for the twelve-month contributory period preceding the
disability award or the shorter period, if the member has not
worked twelve months.
(c) If the member is partially disabled, he or she shall
receive thirty-three and one-third percent of his or her average
full monthly compensation for the twelve-month contributory period
preceding the disability award or the shorter period, if the member
has not worked twelve months.
(d) If the member remains disabled until attaining sixty years
of age, then the member shall receive the retirement benefit
provided in sections eleven and twelve of this article.
(e) The board shall propose legislative rules for promulgation
in accordance with the provisions of article three, chapter
twenty-nine-a of this code concerning member disability payments to
ensure that the payments do not exceed one hundred percent of the
average current salary in any given county for the position last
held by the member.
(f) The disability benefit payments will begin the first day
of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public
Retirement Board.
§7-14D-16. Same -- Physical examinations; termination of
disability.
(a) The board may require any member who has applied for or is
receiving disability benefits under this article to submit to a
physical examination, mental examination or both by a physician or
physicians selected or approved by the board and may cause all
costs incident to the examination and approved by the board to be
paid from the fund. The costs may include hospital, laboratory,
X-ray, medical and physicians' fees. A report of the findings of
any physician shall be submitted in writing to the board for its
consideration. If, from the report, independent information or
from the report and any hearing on the report, the board is of the
opinion and finds that: (1) The member has become reemployed as a
law-enforcement officer; (2) two physicians who have examined the
member have found that considering the opportunities for law
enforcement in West Virginia, the member could be employed as a
deputy sheriff; or (3) other facts exist to demonstrate that the
member is no longer totally disabled or partially disabled as the
case may be, then the disability benefits shall cease. If the
member was totally disabled and is found to have recovered, the
board shall determine whether the member continues to be partially
disabled. If the board finds that the member is no longer totally disabled but is partially disabled, then the member shall continue
to receive partial disability benefits in accordance with this
article. Benefits shall cease once the member has been found to be
no longer either totally or partially disabled
: Provided, That the
board shall require recertification for each partial or total
disability at regular intervals as specified by the guidelines
adopted by the Public Employees Retirement System.
(b) If a retirant refuses to submit to a medical examination
or submit a statement by his or her physician certifying continued
disability in any period, the board may discontinue his or her
disability annuity until the retirant complies. If the refusal
continues for one year, the board may revoke all the retirant's
rights in and to the annuity.
§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. A member is not eligible for more than
one outstanding loan at any time. The board may not make a loan
from the plan if it 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. .
Upon full payment of the loan, a member may apply for a subsequent
loan after sixty (60) days, beginning the first day of the month
following receipt of final payment.
(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 the
time 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 determined by the board.
(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: (1) Apply and construe the provisions of this section and administer the plan loan program in a manner that complies with
the provisions of Sections 72(p)(2) and Section 401 of the Internal
Revenue Code; (2) adopt plan loan policies or procedures consistent
with these federal law provisions; and (3) 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 may also, in connection with the plan
loan program, 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 is not 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.
§7-14D-24. Service as sheriff.
(a) Any actively contributing member who after the effective
date of this article is elected sheriff of a county in West
Virginia may elect to continue as a member in this plan by paying
the amounts required by section seven of this article. Upon the
election, service as a sheriff shall be treated as covered
employment and the sheriff is not entitled to any credit for that service under any other retirement system of the state.
(b) Any member retired as a deputy sheriff under this plan
who, after the effective date of this article, is elected or
appointed sheriff of a county in West Virginia may elect to suspend
the payment of his or her annuity from this system and again become
a contributing member of this plan by paying the amounts required
by section seven of this article. Upon election to suspend payment
of the annuity, service as a sheriff shall be treated as covered
employment and the sheriff is not entitled to any credit for that
period of elected service under any other retirement system of the
state. At the end of his or her term as sheriff, the member making
the election shall have his or her annuity recalculated and shall
be granted an adjustment to his or her previous annuity to include
the period of elected service.
(c) Any person who before the effective date of this article
was elected sheriff of a county in West Virginia and who,
immediately prior to being elected sheriff, was a deputy sheriff
with at least twenty years of credited service under the Public
Employees Retirement System, with at least sixteen of those twenty
years having been earned as a deputy sheriff, may elect to become
a member of this plan by paying the amounts required by section
seven of this article. Upon the election to become a member,
service shall be transferred from the Public Employees Retirement
System pursuant to section eight of this article
: Provided, That any service as a sheriff shall be treated as covered employment
under this article and the sheriff is not entitled to any credit
for that service as a sheriff or the prior service as a deputy
sheriff under any other retirement system of the state. Persons
making the election provided for in this subsection shall do so
within ten days of taking office as sheriff or within ten days of
the effective date of this provision.
(d) Any person who before the effective date of this article
was elected sheriff of a county of West Virginia and who, prior to
being elected sheriff, was a deputy sheriff and also a previously
elected sheriff, with credited service under the Public Employees
Retirement System, with at least sixteen of those years having been
earned as combined service as a deputy sheriff and a previously
elected sheriff, may elect to become a member of this plan by
paying the amounts required by section seven of the article. Upon
election to become a member, service shall be transferred from the
Public Employees Retirement System pursuant to section eight of
this article
: Provided, That a person's service as a sheriff shall
be treated as covered employment under this article and that person
is not entitled to any credit for that service as a sheriff or
deputy sheriff under any other retirement system of this state. A
person making the election provided in this subsection shall do so
within thirty days of taking office as a sheriff or within thirty
days of the effective date of this provision.
§7-14D-30. Limitation of county liability.
No county which has timely met all of its obligations under
this article is liable for any payments or contributions to the
Deputy Sheriff Retirement Plan which are owed to the plan by
another county or counties. A county commission may not deposit
funds into the Deputy Sheriff Retirement Fund in excess of the
amount specified in section seven of this article, the fees set
forth in article fourteen-e of this chapter, the fees set forth in
subdivision (2) subsection (f), section one, article ten-d, chapter
five of this code and the fees set forth in section seventeen,
article three, chapter seventeen-a of this code.