H. B. 3032
(By Delegates Campbell, Hall, Frederick and Duke)
(Originating in the Committee on Pensions and Retirement)
[February 14, 2003]
A BILL to amend and reenact sections one and two, article ten-d,
chapter five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to setting forth
purpose of the consolidated public retirement board;
clarifying the fiduciary obligation of board members to the
retirement funds and the members thereof; clarifying personal
liability of board members; continuing the inapplicability of
immunity for board members; providing for per diem pay of
board members; stating that certain changes are remedial and
may be applied retroactively; and providing that certain
purchasing requirements do not apply to contracts for
actuarial services, legal services, and other professional
services.
Be it enacted by the Legislature of West Virginia:
That sections one and two, article ten-d, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated public retirement board created;
transition; members; vacancies; investment of plan
funds.
(a) There is hereby continued a consolidated public retirement
board 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 death,
disability and retirement fund for deputy sheriffs 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.
The board is created as a public body corporate and is
established to provide prudent fiscal administration and management
of the foregoing retirement systems.
(b)
The consolidated public retirement board shall begin
administration of the death, disability and retirement fund for deputy sheriffs established in article fourteen-d, chapter seven of
this code on the first day of July, one thousand nine hundred
ninety-eight. Each member of the board owes a fiduciary obligation
to each of the retirement systems administered by the board and to
each of the members of those retirement systems, whether the member
be retired or active. Members and employees of the board are not
liable personally, either jointly or severally, for any debt or
obligation created by the board: Provided, That board members are
personally liable for ultra vires acts, acts of malfeasance, acts
in violation of the laws creating and governing the various
retirement systems administered by the board or for gross
negligence. Members of the board may not invoke any immunity, be
it common law, quasi-judicial or any other immunity.
(c) 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's
death, disability and retirement fund; and a member, annuitant or
retirant of the teachers' defined contribution retirement system,
all to be appointed by the governor, with the advice and consent of
the Senate.
(d) The appointed members of the board shall serve five-year
terms.
The governor shall appoint the member representing the
deputy sheriff's death, disability and retirement fund by the first
day of July, one thousand nine hundred ninety-eight, to a five-year
term. A member appointed pursuant to subdivision (6), subsection
(c) 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 shall be of the same political party.
(e) 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 death, disability and retirement fund for
deputy sheriffs 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 their
appropriate governing boards. The consolidated public retirement
board may propose for promulgation all rules necessary to
effectuate its powers, duties and responsibilities pursuant to
article three, chapter twenty-nine-a of this code:
Provided, That
the board may adopt any or all of the rules, previously
promulgated, of a retirement system which it administers.
(f)
Effective on the first day of July, one thousand nine
hundred ninety-six, the consolidated public retirement board shall,
within two business days of receipt, transfer The consolidated
public retirement board shall continue to transfer all funds
received by the consolidated public retirement board 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.
(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 shall
be a trustee for all public retirement plans, except with regard to
the investment of funds:
Provided, That the consolidated public
retirement board shall be 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) Board members shall be paid the per diem rate for members
of the Legislature set forth in section three, article two-a,
chapter four of this code for each day a member attends a board
meeting.
(i) Board members shall discharge their duties in accordance
with the laws, documents and instruments creating and governing the
retirement systems under their management, and shall discharge
their duties with respect to the 401 (a) plans for the exclusive
purpose of providing benefits to participants and their
beneficiaries.
(j) The changes made in this section in the two thousand three
regular session of the Legislature regarding fiduciary duties,
personal liability and nonavailability of immunity are remedial in
nature and merely constitute codification of existing case law and
practices. Accordingly, the changes reflecting personal liability
and inapplicability of immunity shall be applied by a court in any
lawsuit or action brought after the thirty-first day of December,
two thousand two.
(h)(k) 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.
§5-10D-2. Chairman and vice chairman; executive director;
employees; legal advisor; actuary.
(a) The board shall elect from its own number a chairman and
vice chairman.
(b) The board shall appoint an executive director of the
retirement systems. The executive director shall be the chief administrative officer of all the systems and he or she shall not
be a member of the board. He or she shall perform such duties as
are required of him or her in this article and as the board from
time to time delegates to him or her. The compensation of the
executive director shall be fixed by the board subject to the
approval of the governor. The executive director shall, with the
approval of the board of trustees, employ such administrative,
technical and clerical employees as are required in the proper
operation of the systems.
(c) Notwithstanding the provisions of section two, article
three of this chapter, the board shall employ and be represented by
an attorney licensed to practice law in the state of West Virginia
who is not a member of any of the retirement systems administered
by the board.
(d) An actuary, employed by the state or the board pursuant to
section four of this article, shall be the actuarial consultant to
the board.
(e)
Prior to the first day of July, one thousand nine hundred
ninety-one, the expenses of the board for the administration of the
teachers' defined contribution retirement system created pursuant
to article seven-b, chapter eighteen of this code shall be paid by
the teachers retirement system created pursuant to article seven-a
of said chapter. The provisions of article three, chapter five-a
of this code, relating to the division of purchases of the department of finance and administration, do not apply to any
contracts for any actuarial services, legal services, third party
administrator services, investment services or other professional
services authorized to be executed under the provisions of this
article.
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