H. B. 3156
(By Delegates Boggs, Campbell, Caputo, Eldridge,
Manchin, Pethtel, Phillips, Williams
January 13, 2010
; referred to the
Committee on Finance.]
Be it enacted by the Legislature of West Virginia:
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §5-10E-1, §5-10E-2,
§5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8,
§5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12; and to amend and
reenact §36-8-13 of said code, all relating to establishing
the West Virginia Voluntary Employee Retirement Accounts
Program in the office of the State Treasurer; establishing
findings; defining terms; creating program as a body
corporate; providing for liberal construction; requiring
compliance with federal and state law; providing for plan
administration; authorizing Treasurer to propose rules;
establishing participation; requiring all federal approvals be
received before operations begin; creating trust; prohibiting
assignment, except for qualified domestic relations orders;
authorizing investments; specifying that the corpus, assets
and earnings of trust do not constitute public funds; deferring compensation from federal, state and municipal
income taxes; authorizing collection of fees from accounts;
creating administration account; requiring that any funds
appropriated by the Legislature be reimbursed; specifying the
state and the Treasurer are not liable for losses; specifying
certain information is confidential; requiring payroll
information be provided to the Treasurer; and providing for
the transfer of money from the Unclaimed Property Trust Fund
for start-up of the program.
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-
10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9,
§5-10E-10, §5-10E-11 and §5-10E-12; and that §36-8-13 of said code
be amended and reenacted, 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 10E. WEST VIRGINIA VOLUNTARY EMPLOYEE RETIREMENT ACCOUNTS
(a) The Legislature finds that many workers in West Virginia
do not have access to an employment-based retirement plan with federal income tax incentives. Workers who are unable to build up
pensions and savings risk living on low incomes in their later
years and are more likely to become dependent on governmental
services. In addition, small employers find offering pension plans
to their employees cost prohibitive and time consuming.
(b) The Legislature has determined that offering a group plan,
the West Virginia Voluntary Employee Retirement Account Program, to
West Virginia employers and employees should provide a simple,
cost-efficient way for West Virginia workers to save for retirement
and for West Virginia employers to offer a much needed employee
Unless the context in which used clearly requires a different
definition, the following definitions in this section apply
throughout this article:
(1) "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
(2) "Investment product" means any fixed or variable rate
annuity, life insurance contract, savings account, certificate of
deposit, money market account, bond, mutual fund or any other form
of investment not prohibited under the Internal Revenue Code and
authorized by the program.
(3) "Nonparticipating employer" means a nongovernmental
employer in West Virginia who employs no more than one hundred employees in the state, who does not offer a retirement plan for
employees but who may make payroll deductions in accordance with
(4) "Participating employee" means any person employed in this
state by a nongovernmental employer who employs no more than one
hundred employees in the state, who has chosen to have a part of
his or her wages or salary contributed to an account in the program
and who has at least one dollar in an account in the program.
(5) "Participating employer" means any nongovernmental employer
who employs no more than one hundred employees in this state, who
does not offer a retirement plan for employees at the time the
employer executes an agreement with the Treasurer authorizing
employees to take part in the program.
(6) "Plan" means the retirement plan created and operated under
(7) "Program" means the voluntary employee retirement accounts
program created under this article.
(8) "Treasurer" means the West Virginia State Treasurer.
§5-10E-3. West Virginia Voluntary Employee Retirement Accounts
Program created; body corporate.
The West Virginia Voluntary Employee Retirement Accounts
Program is created within the office of the West Virginia State
Treasurer under the direction of the Treasurer to provide a cost-
efficient group retirement plan for nongovernmental employers and employees in West Virginia.
The Voluntary Employee Retirement Accounts Program shall
constitute a body corporate.
§5-10E-4. Liberal construction; compliance.
This article shall be liberally construed so as to provide a
tax-deferred retirement system for participating employers and
The plan is intended to comply with the requirements of Section
401 and other provisions of the Internal Revenue Code and state law
to provide a group retirement plan, including without limitation
provisions for limits on deferred contributions.
§5-10E-5. Administration; powers; rules.
(a) The Treasurer shall create the plan and trust, develop
standards and requirements for operation, and shall have all powers
necessary to effectuate the purposes of this article and to operate
the plan and the trust.
(b) Notwithstanding any provision of this code to the contrary,
including, without limitation, this chapter and chapter five-a of
this code, the Treasurer has authority to enter into contracts and
execute and deliver instruments, including, without limitation,
contracts with participating employers and employees; engage
consultants, Auditors, counsel, managers, advisors, trustees or any
other contractors or professionals; and charge and collect
(c) The Treasurer may propose rules for legislative approval
in accordance with article three, chapter twenty-nine-a of this
code as necessary to implement this article, and is authorized to
promulgate emergency rules.
(a) Nongovernmental employers that employ no more than one
hundred employees in this state and that do not offer a currently
active retirement program for employees may voluntarily elect to
participate in the program and provide their employees with the
opportunity to become participating employees. However, nothing in
this article shall be construed as requiring employers to
participate in the program, except as provided in subsection (b) of
this section. A participating employer shall comply with all
program requirements, including, without limitation, making payroll
deductions and remittances as required by the Treasurer. A
participating employer may elect to discontinue participation in
accordance with program requirements.
(b) An employee of a nonparticipating employer in West Virginia
may elect to participate and defer a portion of his or her salary
to an account under the program in his or her name, and the only
requirement of his or her employer is to make payroll deductions
and remittances as requested by the employee in writing and as
determined by the Treasurer.
(c) An employer, in its sole discretion, may elect to make a matching contribution to the account of an employee on whatever
basis it elects in accordance with the program requirements.
(d) A participating employee may increase or decrease the
amount of his or her contribution at any time within the
limitations permitted by the program, and an employee may cease to
participate in the program upon written notice to the employer.
(e) The program may not begin receiving employee contributions
until any approvals from federal agencies that may be required have
been received, and appropriate funds for start-up costs of the
program have been identified and appropriated by the Legislature.
§5-10E-7. Creation of trust; assignment; investments.
(a) All funds of participating employees and participating
employers shall be held in trust by the Treasurer for the exclusive
benefit of the participating employees, participating employers and
their beneficiaries, notwithstanding any other provision of this or
(b) Neither the participating employee, nor the participating
employee's beneficiary or beneficiaries, nor any other designee,
has any right to commute, sell, assign, transfer, or otherwise
convey the right to receive any payments under the program. These
payments and rights are nonassignable and nontransferable. Account
balances are not subject to attachment, garnishment, or execution
and are not transferable by operation of law in the event of
bankruptcy, as provided in section four, article ten, chapter thirty-eight of this code, or insolvency, except for qualified
domestic relations orders, as that term is defined in the Internal
Revenue Code and to the extent otherwise required by law.
(c) Notwithstanding any provision of this code to the contrary,
the Treasurer is authorized to invest funds in the trust in
investment products or with financial institutions or other
entities selected by the Treasurer.
(d) The corpus, assets and earnings of the trust do not
constitute public funds of the state and are available solely for
carrying out the purposes of this article. Any contract entered
into by the Treasurer in connection with the plan does not create
or constitute a debt, but is solely an obligation of the trust.
§5-10E-8. Federal and state income tax.
Any compensation deferred under the plan is not subject to
federal, state or municipal income tax, nor shall any amount of
compensation deferred be included for the purposes of computation
of any federal, state or municipal income tax withheld on behalf of
a participating employee.
§5-10E-9. Costs; administrative account; start-up costs;
(a) The costs of establishing and operating the Voluntary
Employee Retirement Accounts Program and plan shall be paid from
the fees assessed by the Treasurer and from any funds appropriated
by the Legislature.
(b) The sole purpose of any funds appropriated by the
Legislature is for start-up costs and to operate the program, plan
and trust fund until the program provides sufficient funds for
operation. Any appropriated moneys unused shall be returned to the
fund from which they were appropriated. If the funds appropriated
by the Legislature are insufficient to make the program self-
sufficient, then the program, plan and trust fund shall terminate.
(c) The Voluntary Employee Retirement Accounts Plan
Administration Account is created in the accounts of the Treasurer
for the purposes of implementing, operating and maintaining the
trust and plan. The account shall receive all fees charged and
collected by the Treasurer and funds appropriated by the
Legislature under this article, if any.
(d) On or before July 1, 2009, the unclaimed property
administrator shall transfer the amount of $3 million from the
Unclaimed Property Trust Fund to the Voluntary Employee Retirement
Accounts Plan Administration Account.
(e) Any funds appropriated by the Legislature for the program
shall be reimbursed to the state from fees assessed for program
operation in accordance with this article.
(f) Moneys in the administration fund may be invested, in whole
or in part, by the Treasurer as he or she determines. All earnings
shall accrue to and be retained by the fund.
§5-10E-10. State and Treasurer not liable.
the State of West Virginia and the Treasurer shall not incur
any liability for losses suffered or change in value of an
§5-10E-11. Confidential information exempt from disclosure.
All information contained in the records maintained pursuant
to this article that would tend to disclose the identity of a
participating employee or a beneficiary, including, without
limitation, social security number, account number, address,
telephone number, e-mail address, amounts invested, selected
investments, returns and medical or disability information, are
confidential and exempt from disclosure under article one, chapter
twenty-nine-b of this code. Participating employees and persons
authorized by participating employees are permitted access to their
§5-10E-12. Disclosure of information to the Treasurer for
operation of the program and plan.
For purposes of this article, an employer with a participating
employee shall disclose to the Treasurer any payroll related
information the Treasurer determines he or she needs for the
operation of the program and plan. Information disclosed pursuant
to this section shall be used by the Treasurer for the operation of
the program and plan only. The Treasurer shall treat the
information obtained as confidential and shall not disclose the
information except to an entity providing goods or services for the program and plan, who shall also treat the information as
confidential, or as required by law.
CHAPTER 36. ESTATES AND PROPERTY
ARTICLE 8. THE UNIFORM UNCLAIMED PROPERTY ACT.
§36-8-13. Deposit of funds.
(a) The administrator shall record the name and last known
address of each person appearing from the holders reports to be
entitled to the property and the name and last known address of
each insured person or annuitant and beneficiary and with respect
to each policy or annuity listed in the report of an insurance
company, its number, the name of the company and the amount due.
(b) The Unclaimed Property Fund is continued. The administrator
shall deposit all funds received pursuant to this article in the
Unclaimed Property Fund, including the proceeds from the sale of
abandoned property under section twelve of this article. In
addition to paying claims of unclaimed property duly allowed, the
administrator may deduct the following expenses from the Unclaimed
(1) Expenses of the sale of abandoned property;
(2) Expenses incurred in returning the property to owners,
including without limitation the costs of mailing and publication
to locate owners;
(3) Reasonable service charge; and
(4) Expenses incurred in examining records of holders of property and in collecting the property from those holders.
(c) The Unclaimed Property Trust Fund is continued within the
State Treasury. After deducting the expenses specified in
subsection (b) of this section and maintaining a sum of money from
which to pay claims duly allowed, the administrator shall transfer
the remaining moneys in the Unclaimed Property Fund to the
Unclaimed Property Trust Fund.
(d) On or before December 15 of each year and after receipt of
a report from the Chairman of the board of Trustees of the West
Virginia College Prepaid Tuition and Savings Program stating the
amount certified by an actuary in accordance with
the provisions of
section six, article thirty, chapter eighteen of this code,
notwithstanding any provision of this code to the contrary, the
administrator shall transfer the sum of money certified by the
actuary from the Unclaimed Property Trust Fund to the Prepaid
Tuition Trust Escrow Fund, the amount transferred not to exceed $1
(e) On or before June 1, 2007, the unclaimed property
administrator shall transfer the amount of $2 million from the
Unclaimed Property Trust Fund to the Deferred Compensation Matching
Fund for operation of the deferred compensation matching program
for state employees. On or before June 1, 2008, the unclaimed
property administrator shall transfer the amount of $1 million
from the Unclaimed Property Trust Fund to the Deferred Compensation Matching Fund for operation of the matching program.
(f) On or before July 1, 2009, the unclaimed property
administrator shall transfer the amount of $3 million from the
Unclaimed Property Trust Fund to the Voluntary Employee Retirement
Accounts Plan Administration Account.
After transferring any money required by subsections
(e) and (f)
of this section, the administrator shall
transfer moneys remaining in the Unclaimed Property Trust Fund to
the General Revenue Fund.
NOTE: The purpose of this bill is to create the West Virginia
Voluntary Employee Retirement Accounts Program, a voluntary tax-
deferred retirement plan for nongovernmental employers and
employees in the State of West Virginia who are without a
retirement plan. Participation by employers and employees is
voluntary. All federal requirements must be met before operations
begin. A trust and an administration account are established. The
bill provides for initial start-up and operations funding of $3
million from the Unclaimed Property Trust Fund, subject to
appropriation, and provides for repayment of the amount. The
Treasurer is authorized to collect fees from accounts for
operations. The bill specifically provides that the state and the
Treasurer are not liable for any losses or change in value.
Information of a personal nature gathered for participation in the
program is confidential and not subject to a Freedom of Information
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would