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Committee Substitute House Bill 2717 History

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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE

FOR

H. B. 2717

(By Delegates Stalnaker, Amores, Craig and Spencer )


(Originating in the Committee on Finance)


[February 22, 2007]


A BILL to amend and reenact §5-10A-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-10D-1 of said code; and to amend said code by adding thereto a new article, designated §16-5V-1, §16-5V-2, §16-5V-3, §16-5V-4, §16-5V-5, §16-5V-6, §16-5V-7, §16-5V-8, §16-5V-9, §16-5V-10, §16-5V-11, §16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a, §16-5V-15, §16-5V-16, §16-5V-17, §16-5V-18, §16-5V-19, §16-5V-20, §16-5V-21, §16-5V-22, §16-5V-23, §16-5V-24, §16-5V-25, §16-5V-26, §16-5V-27, §16-5V-28, §16-5V-29, §16-5V-30, §16-5V-31, §16-5V-32, §16-5V-33 and §16-5V-34, all relating to the Consolidated Public Retirement Board; providing that the board administer the Emergency Medical Services Retirement System; establishing the Emergency Medical Services Retirement System; setting forth definitions including application of honorable service condition to plan participants; providing effective dates and voting requirement; establishing federal qualification requirements; providing for liberal construction; providing that plan is not a substitute for social security; providing for and setting membership standards; setting forth required contributions from members and employers; creating fund and providing for investments; providing for transfer from Public Employees Retirement System; setting time limits; setting forth notice requirements; providing for the commencement of benefits, federal law maximum benefit limitations, minimum required distributions and direct rollovers; providing for retirement credited through member's use of accrued annual or sick leave; providing for retirement benefits; setting forth annuity options; providing for refunds in certain circumstances; providing for deferred retirement; providing for forfeitures of benefits; providing awards and benefits for duty-related disability and for other causes; requiring physical examinations; establishing criteria for termination of disability; providing for prior disability; providing awards and benefits to surviving spouse and additional death benefits and scholarships for dependent children; providing for burial benefit; prohibiting double death benefits; establishing exemption from taxation, garnishment and other process; authorizing certain deductions; establishing the effect of qualified domestic relation orders; prohibiting fraud; establishing criminal penalties; requiring repayment in certain circumstances; providing for treatment of prior military service; establishing effective date of the system; providing voluntary employer participation; establishing starting date for benefits; limiting county liability; and providing for no forfeiture of benefits if system terminates."

Be it enacted by the Legislature of West Virginia:
That §5-10A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §5-10D-1 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §16-5V-1, §16-5V-2, §16-5V-3, §16-5V-4, §16-5V-5, §16-5V-6, §16-5V-7, §16-5V-8, §16-5V-9, §16-5V-10, §16-5V-11, §16-5V-12, §16-5V-13, §16-5V-14, §16-5V-14a, §16-5V-15, §16-5V-16, §16-5V-17, §16-5V-18, §16-5V-19, §16-5V-20, §16-5V-21, §16-5V-22, §16-5V-23, §16-5V-24, §16-5V-25, §16-5V-26, §16-5V-27, §16-5V-28, §16-5V-29, §16-5V-30, §16-5V-31, §16-5V-32, §16-5V-33 and §16-5V-34, 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 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; the Emergency Medical Services Retirement System established in article five-v, chapter sixteen 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.
ARTICLE 10D. Consolidated Public Retirement Board.
§5-10D-1. Consolidated Public Retirement Board continued; members; vacancies; investment of plan funds.

(a) The Consolidated Public Retirement Board is continued to administer all public retirement plans in this state. It shall administer the Public Employees Retirement System established in article ten of this chapter; the Teachers Retirement System established in article seven-a, chapter eighteen of this code; the Teachers Defined Contribution Retirement System created by article seven-b of said chapter; the West Virginia State Police Death, Disability and Retirement Fund created by article two, chapter fifteen of this code; the West Virginia State Police Retirement System created by article two-a of said chapter; the Deputy Sheriff Death, Disability and Retirement Fund created by article fourteen-d, chapter seven of this code; and the Judges' Retirement System created under article nine, chapter fifty-one of this code; and the Emergency Medical Services Retirement System established in article five-v, chapter sixteen of this code.
(b) The membership of the Consolidated Public Retirement Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Secretary of the Department of Administration or his or her designee;
(5) Four residents of the state, who are not members, retirants or beneficiaries of any of the public retirement systems, to be appointed by the Governor, with the advice and consent of the Senate; and
(6) A member, annuitant or retirant of the Public Employees Retirement System who is or was a state employee; a member, annuitant or retirant of the Public Employees Retirement System who is not or was not a state employee; a member, annuitant or retirant of the Teachers Retirement System; a member, annuitant or retirant of the West Virginia State Police Death, Disability and Retirement Fund; a member, annuitant or retirant of the Deputy Sheriff Death, Disability and Retirement Fund; and a member, annuitant or retirant of the Teachers Defined Contribution Retirement System; and a member, annuitant or retirant of the Emergency Medical Services Retirement System, all to be appointed by the Governor, with the advice and consent of the Senate.
(c) The appointed members of the board shall serve five-year terms. A member appointed pursuant to subdivision (6), subsection (b) of this section ceases to be a member of the board if he or she ceases to be a member of the represented system. If a vacancy occurs in the appointed membership, the Governor, within sixty days, shall fill the vacancy by appointment for the unexpired term. No more than five appointees may be of the same political party.
(d) The Consolidated Public Retirement Board has all the powers, duties, responsibilities and liabilities of the Public Employees Retirement System established pursuant to article ten of this chapter; the Teachers Retirement System established pursuant to article seven-a, chapter eighteen of this code; the Teachers Defined Contribution System established pursuant to article seven-b of said chapter; the West Virginia State Police Death, Disability and Retirement Fund created pursuant to article two, chapter fifteen of this code; the West Virginia State Police Retirement System created by article two-a of said chapter; the Deputy Sheriff Death, Disability and Retirement Fund created pursuant to article fourteen-d, chapter seven of this code; and the Judges' Retirement System created pursuant to article nine, chapter fifty-one of this code; and the Emergency Medical Services Retirement System established in article five-v, chapter sixteen of this code and their appropriate governing boards.
(e) The Consolidated Public Retirement Board may propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, necessary to effectuate its powers, duties and responsibilities: Provided, That the board may adopt any or all of the rules, previously promulgated, of a retirement system which it administers.
(f)(1) The Consolidated Public Retirement Board shall continue to transfer all funds received for the benefit of the retirement systems within the consolidated pension plan as defined in section three-c, article six-b, chapter forty-four of this code, including, but not limited to, all employer and employee contributions, to the West Virginia Investment Management Board: Provided, That the employer and employee contributions of the Teachers Defined Contribution System, established in section three, article seven-b, chapter eighteen of this code, and voluntary deferred compensation funds invested by the West Virginia Consolidated Public Retirement Board pursuant to section five, article ten-b of this chapter may not be transferred to the West Virginia Investment Management Board.
(2) The board may recover from a participating employer that fails to pay any amount due a retirement system in a timely manner the contribution due and an additional amount not to exceed interest or other earnings lost as a result of the untimely payment, or a reasonable minimum fee, whichever is greater, as provided by legislative rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code. Any amounts recovered shall be administered in the same manner in which the amount due is required to be administered.
(g) Notwithstanding any provision of this code or any legislative rule to the contrary, all assets of the public retirement plans set forth in subsection (a) of this section shall be held in trust. The Consolidated Public Retirement Board is a trustee for all public retirement plans, except with regard to the investment of funds: Provided, That the Consolidated Public Retirement Board is a trustee with regard to the investments of the Teachers' Defined Contribution System, the voluntary deferred compensation funds invested pursuant to section five, article ten-b of this chapter and any other assets of the public retirement plans administered by the Consolidated Public Retirement Board as set forth in subsection (a) of this section for which no trustee has been expressly designated in this code.
(h) The board may employ the West Virginia Investment Management Board to provide investment management consulting services for the investment of funds in the Teachers' Defined Contribution System.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5V.á EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
§16-5V-1. Title.
This article is known and may be cited as the "West Virginia Emergency Medical Services Retirement System Act."
§16-5V-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:
(a) "Accrued benefit" means on behalf of any member two and six-tenths percent per year of the member's final average salary for the first twenty years of credited service. Additionally, two percent per year for twenty-one through twenty-five years and one percent for twenty-six through thirty years will be credited with a maximum benefit of sixty-seven percent. A member's accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of section twelve of this article.
(1) The board may upon the recommendation of the board actuary increase the employees' contribution rate to ten and five-tenths percent should the funding of the plan not reach seventy percent funded by the first day of July, two thousand twelve. The board shall decrease the contribution rate to eight and one-half percent once the plan funding reaches the seventy percent support objective as of any later actuarial valuation date.
(2) Upon reaching the seventy-five percent actuarial funded level, as of an actuarial valuation date, the board shall increase the two and six-tenths percent to two and three-quarter percent for the first twenty years of credited service. The maximum benefit will also be increased from sixty-seven percent to seventy percent.
(b) "Accumulated contributions" means the sum of all retirement contributions deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment, together with regular interest on the deducted amounts.
(c) "Active military duty" means full-time active duty with any branch of the armed forces of the United States, including service with the national guard or reserve military forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any board or employer other than the armed forces.
(d) "Actuarial equivalent" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the board in accordance with the provisions of this article.
(e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed one hundred thousand dollars as adjusted for cost-of-living in accordance with Section 401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the month for which an annuity is payable after submission of a retirement application.á For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement" means the first day of the month following or coincident with the latter of the last day the member worked in covered employment or the member's normal retirement age and after completing proper written application for such "retirement" on an application supplied by the board.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an emergency medical technician, emergency medical technician/ paramedic or emergency medical services/registered nurse and the active performance of the duties required of emergency medical services officers; or (2) the period of time which active duties are not performed but disability benefits are received under this article; or (3) concurrent employment by an emergency medical services officer in a job or jobs in addition to his or her employment as an emergency medical services officer where such secondary employment requires the emergency medical services officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to this code:
Provided, That the emergency medical services officer contributes to the fund created in this article the amount specified as the member's contribution in section eight of this article.
(k) "Credited service," means the sum of a member's years of service, active military duty, disability service and accrued annual and sick leave service.
(l) "Emergency medical services officer" means an individual employed by the State, county or other political subdivision as a medical professional that is qualified to respond to medical emergencies, aids the sick and injured and arranges or transports to medical facilities, as defined by the West Virginia Office of Emergency Medical Services. This definition is construed to include employed ambulance providers and other services such as law enforcement, rescue, or fire department personnel who primarily perform these functions and are not provided any other credited service benefits or retirement plans. These persons may hold the rank of emergency medical technician/basic, emergency medical technician/paramedic, emergency medical services/registered nurse, or others as defined by the West Virginia Office of Emergency Medical Services and the Consolidated Public Retirement Board.
(m) "Dependent child" means either:
(1) An unmarried person under age eighteen who is:
(A) A natural child of the member;
(B) A legally adopted child of the member;
(C) A child who at the time of the member's death was living with the member while the member was an adopting parent during any period of probation; or
(D) A stepchild of the member residing in the member's household at the time of the member's death; or
(2) Any unmarried child under age twenty-three:
(A) Who is enrolled as a full-time student in an accredited college or university;
(B) Who was claimed as a dependent by the member for federal income tax purposes at the time of member's death; and
(C) Whose relationship with the member is described in paragraph (A), (B) or (C), subdivision (1) of this subsection.
(n) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal income tax purposes at the time of the member's death.
(o) "Disability service" means service received by a member, expressed in whole years, fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under this article.
(p) "Effective date" means the first day of January, two thousand eight.
(q) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member's last ten years of service while employed, prior to any disability payment. If the member did not have annual compensation for the five full plan years preceding the member's attainment of normal retirement age and during that period the member received disability benefits under this article then "final average salary" means the average of the monthly salary determined paid to the member during that period as determined under section twenty-two of this article multiplied by twelve. "Final average salary" does not include any lump sum payment for unused, accrued leave of any kind or character.
(r) "Fund" means the West Virginia Emergency Medical Services Retirement Fund created by this article.
(s) "Hour of service" means:
(1) Each hour for which a member is paid or entitled to payment for covered employment during which time active duties are performed. These hours shall be credited to the member for the plan year in which the duties are performed; and
(2) Each hour for which a member is paid or entitled to payment for covered employment during a plan year but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence or any combination thereof, and without regard to whether the employment relationship has terminated. Hours under this subdivision shall be calculated and credited pursuant to West Virginia Division of Labor rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under section nineteen or twenty of this article; and
(3) Each hour for which back pay is either awarded or agreed to be paid by the employing county commission or political subdivision, irrespective of mitigation of damages. The same hours of service shall not be credited both under subdivision (1) or (2) of this subsection and under this subdivision. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains, rather than the plan year in which the award, agreement or payment is made.
(t) "Member" means a person first hired as an emergency medical services officer by an employer which is a participating public employer of the Public Employees Retirement System or the Emergency Medical Services Retirement System after the effective date of this article, as defined in subsection (p) of this section, or an emergency medical services officer of an employer which is a participating public employer of the Public Employees Retirement System first hired prior to the effective date and who elects to become a member pursuant to this article. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited.
(u) "Monthly salary" means the W-2 reportable compensation received by a member during the month.
(v) "Normal form" means a monthly annuity which is one twelfth of the amount of the member's accrued benefit which is payable for the member's life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.
(w) "Normal retirement age" means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty or more years of regular contributory service, excluding active military duty, disability service and accrued annual and sick leave service.
(2) While still in covered employment, attainment of at least age fifty years and when the sum of current age plus regular contributory years of service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least age sixty years and completion of ten years of regular contributory service; or
(4) Attainment of age sixty-two years and completion of five or more years of regular contributory service.
(x) "Public Employees Retirement System" means the West Virginia Public Employee's Retirement System created by West Virginia Code.
(y) "Plan" means the West Virginia Emergency Medical Services Retirement System established by this article.
(z) "Plan year" means the twelve-month period commencing on the first day of January of any designated year and ending the following thirty-first day of December.
(aa) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board adopts in accordance with the provisions of this article.
(bb) "Retirement income payments" means the monthly retirement income payments payable under the plan.
(cc) "Spouse" means the person to whom the member is legally married on the annuity starting date.
(dd) "Surviving spouse" means the person to whom the member was legally married at the time of the member's death and who survived the member.
(ee) "Totally disabled" means a member's 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:
(1) A member is totally disabled only if his or her physical or mental impairment or impairments is so severe that he or she is not only unable to perform his or her previous work as an emergency medical services officer 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. For purposes of this article, substantial gainful employment is the same definition as used by the United States Social Security Administration.
(2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. The board may require submission of a member's annual tax return for purposes of monitoring the earnings limitation
(ff) "Year of service" means a member shall, except in his or her first and last years of covered employment, be credited with years of service credit based upon the hours of service performed as covered employment and credited to the member during the plan year based upon the following schedule:
Hours of Service Year of Service Credited
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