ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 208
(Senators Foster and Plymale, original sponsors)
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[Passed March 6, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §5-10C-3, §5-10C-4 and §5-10C-5 of the
Code of West Virginia, 1931, as amended, all relating to
government employees retirement plans; adding the West
Virginia Emergency Medical Services Retirement System to, and
clarifying that all other retirement systems administered by
the Consolidated Public Retirement Board are included in, the
definition of "retirement systems" for purposes of the
employer pick-up provisions; clarifying that all participating
public employers in retirement systems covered by this article
are included in the definition of "participating public
employer"; and setting forth requirements for member
contributions to be picked up for federal tax purposes by
participating public employers in retirement systems covered
by this article in accordance with revised guidance relating to same from the Internal Revenue Service.
Be it enacted by the Legislature of West Virginia:
That §5-10C-3, §5-10C-4 and §5-10C-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 10C. GOVERNMENT EMPLOYEES RETIREMENT PLANS.
§5-10C-3. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Accumulated contributions" means the sum of all amounts
credited to a member's individual account in the members' deposit
fund and includes both contributions deducted from the compensation
of a member and contributions of a member picked up and paid by the
member's participating public employer, plus applicable interest
thereon.
(2) "Board of trustees" means, as appropriate: The
Consolidated Public Retirement Board created in article ten-d of
this chapter; the Higher Education Policy Commission; the West
Virginia Council for Community and Technical College Education; the
institutional governing boards responsible for the higher education
retirement plan and supplemental retirement plan; or the boards of
trustees of the firemen's and policemen's pension and relief funds
created in article twenty-two, chapter eight of this code.
(3) "Employee" means any person, whether appointed, elected or
under contract, providing services for a public employer for which
compensation is paid and who is a member of the applicable
retirement system.
(4) "Member" means any person who has accumulated
contributions standing to his or her credit in a retirement system.
(5) "Member contributions" means, as appropriate: The
contributions required by section twenty-nine, article ten of this
chapter five from employees who are members of the West Virginia
Public Employees Retirement System; the contributions required by
section twenty-six, article two, chapter fifteen of this code from
employees who are members of the West Virginia State Police Death,
Disability and Retirement Fund; the contributions required by
section seven, article fourteen-d, chapter seven of this code from
employees who are members of the Deputy Sheriff's Retirement
System; the contributions required by section fourteen, article
seven-a, chapter eighteen of this code from employees who are
members of the State Teachers Retirement System; the contributions
authorized or required by section fourteen-a, article seven-a of
said chapter or by section four-a, article twenty-three of said
chapter from employees who are members of the West Virginia higher
education retirement plan and supplemental retirement plan; the
contributions required by section four, article nine, chapter
fifty-one of this code from employees who are members of the Judges' Retirement System; the contributions required by section
nineteen, article twenty-two, chapter eight of this code from
employees who are members of municipal firemen's and policemen's
pension and relief funds; the contributions required by section
nine, article seven-b, chapter eighteen of this code from employees
who are members of the Teachers' Defined Contribution Retirement
System; the contributions required by section five, article two-a,
chapter fifteen of this code from the employees who are members of
the West Virginia State Police Retirement System; or the
contributions required by section eight, article five-v, chapter
sixteen of this code from employees who are members of the West
Virginia Emergency Medical Services Retirement System.
(6) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit and includes any agency with full-time employees,
created by rule of the Supreme Court of Appeals, which for the
purpose of this article shall be considered a department of state
government and county boards of education with respect to teachers
employed by them; 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; any political
subdivision in the state which has elected to cover its employees,
as defined in this article, under the Deputy Sheriff Retirement
System; any political subdivision in the state which has elected to cover its employees, as defined in this article, under the West
Virginia Emergency Medical Services Retirement System; and any
political subdivision in this state which is subject to the
provisions of article twenty-two, chapter eight of this code.
(7) "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; 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, any agency or organization established by or approved by the
Department of Health and Human Resources for the provision of
community health or mental retardation services and which is
supported in part by state, county or municipal funds.
(8) "Retirement system" means, as appropriate: The West
Virginia Public Employees Retirement System created in article ten
of this chapter; the West Virginia State Police Death, Disability
and Retirement Fund created in sections twenty-six through thirty-
eight, inclusive, article two, chapter fifteen of this code; the
West Virginia Deputy Sheriff Retirement System created in article
fourteen-d, chapter seven of this code; the State Teachers
Retirement System created in article seven-a, chapter eighteen of this code; the West Virginia higher education retirement plan and
supplemental retirement plan created in section fourteen-a, article
seven-a of said chapter and section four-a, article twenty-three of
said chapter; the Judges' Retirement System created in article
nine, chapter fifty-one of this code; the firemen's or policemen's
pension and relief funds created in section sixteen, article
twenty-two, chapter eight of this code; the Teachers' Defined
Contribution Retirement System created in article seven-b, chapter
eighteen of this code; the West Virginia State Police Retirement
System created in article two-a, chapter fifteen of this code; or
the West Virginia Emergency Medical Services Retirement System
created in article five-v, chapter sixteen of this code.
(9) "Teacher" has the meaning ascribed to it in section three,
article seven-a, chapter eighteen of this code.
§5-10C-4. Pick-up of members' contributions by participating
public employers.
(a) The State of West Virginia for its public employees and
county boards of education for its teachers shall pick-up and pay
the contributions which the employees are required by law to make
to the retirement system in which they are a member for all
compensation earned by its member employees after the thirtieth day
of June, one thousand nine hundred eighty-six. Any political
subdivision that is a participating public employer in the West
Virginia Public Employees Retirement System shall pick-up and pay the contributions which the employees are required by law to make
to the retirement system in which they are members for all
compensation earned by its member employees after the first day of
January, one thousand nine hundred ninety-five. Counties shall
pick-up and pay the contributions which the employees are required
by law to make to the Deputy Sheriff Retirement System in which
they are members for all compensation earned by its member
employees after the thirtieth day of June, one thousand nine
hundred ninety-eight. Any election made by a political subdivision
to pick-up and pay employee contributions prior to the first day of
January, one thousand nine hundred ninety-five, remains in effect
and is not altered or amended by the amendments made to this
section during the regular legislative session, one thousand nine
hundred ninety-five. Unless a different commencement date for
pick-up is specifically stated in this section, all participating
public employers under this article, with respect to retirement
systems subject to this article, shall pick-up and pay the
contributions which their employees are required by law to make to
the retirement system in which they are a member from and after the
commencement of the required employee contributions.
(b) When the participating public employer picks up and pays
the contributions of its member employees, the contributions,
although designated by statute as employee contributions, shall be
treated as employer contributions in determining the tax treatment thereof under article twenty-one, chapter eleven of this code and
the federal Internal Revenue Code of 1986, as amended, and the
contributions shall not be included in the gross income of the
employee in determining his or her tax treatment under those
provisions until they are distributed or made available to the
employee or his or her beneficiary. The participating public
employer shall pay these employee contributions from the same
source of funds used in paying compensation to the employee, by
effecting an equal cash reduction in the gross salary of the
employee, or by an off-set against future salary increases, or by
a combination of reduction in gross salary and off-set against
future salary increases. In no event shall any employee of a
participating public employer have the right to opt out of pick-up
or to elect to receive the picked-up and contributed amounts
directly instead of having them paid by the participating public
employer into the retirement system pursuant to this article.
(c) When employee contributions are picked up and paid by the
participating public employer, they shall be treated by the board
of trustees in the same manner and to the same extent as employee
contributions made prior to the date on which employee
contributions are picked up by the participating public employer.
(d) The amount of employee contributions picked up by the
participating public employer shall be paid to the retirement
system in the manner and form and in the frequency required by the board of trustees and shall be accompanied by supporting data that
the board of trustees may prescribe. When paid to the retirement
system, each of these amounts shall be credited to the deposit fund
account of the member for whom the contribution was picked up and
paid by the participating public employer.
§5-10C-5. Savings clause.
In enacting this article, it is the intent of the Legislature
that the retirement plan created pursuant to this article and those
created pursuant to article ten of this chapter; article fourteen-
d, chapter seven of this code; article two, chapter fifteen of this
code; article seven-a, chapter eighteen; article nine, chapter
fifty-one; section four-a, article twenty-three, chapter eighteen
of this code; section sixteen, article twenty-two, chapter eight of
this code; article seven-b, chapter eighteen of this code; article
two-a, chapter fifteen of this code; and article five-v, chapter
sixteen of this code qualify under Section 401 of the Internal
Revenue Code of 1986, as amended, and that the member contributions
picked up by the participating public employer qualify under
Subsection (h), Section 414 of the Internal Revenue Code of 1986,
as amended. If the United States Internal Revenue Service does not
approve of certain sections or phraseology of certain sections of
this article as being in compliance with the statutes or
regulations governing the Internal Revenue Service, the respective
boards of trustees, in the adoption of the deferred compensation plan, shall adopt the terminology with respect to those sections
that comply with the statutes or regulations governing the Internal
Revenue Service.