H. B. 3158
(By Delegates White, Boggs, Caputo, Fragale, Webster, Morgan,
M. Poling, Campbell, Craig, Schadler and Rowan)
[Introduced March 16, 2009; referred to the
Committee on Finance.]
A BILL to amend and reenact §8-13C-1, §8-13C-2, §8-13C-3,
§8-13C-4, §8-13C-5, §8-13C-9, §8-13C-11 and §8-13C-14 of the
Code of West Virginia, 1931, as amended; to amend and
reenact §8-15-8a and §8-15-8b of said code; to amend said
code by adding thereto two new sections, designated §8-15-8d
and §8-15-8e; to amend and reenact §8-22-16, §8-22-17,
§8-22-19, §8-22-20, §8-22-20a, §8-22-22, §8-22-22a,
§8-22-23a, §8-22-26a and §8-22-27 of said code; to amend
said code by adding thereto two new sections, designated §8-
22-18a and §8-22-18b; to amend said code by adding thereto
a new section, designated §11-21-12i; to amend and reenact
§12-4-14 of said code; to amend said code by adding thereto
a new section, designated §33-2-15e; to amend and reenact
§33-3-14d and §33-3-33 of said code; and to amend said code
by adding thereto three new sections, designated §33-3-14e,
§33-3-34 and §33-3-35, all relating to providing assistance
to certain political subdivision activities involving municipal policemen's and firemen's pensions and relief
systems and volunteer fire departments.
Be it enacted by the Legislature of West Virginia:
That §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5,
§8-13C-9, §8-13C-11 and §8-13C-14 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that §8-15-8a and
§8-15-8b of said code be amended and reenacted; that said code be
amended by adding thereto two new sections, designated §8-15-8d
and §8-15-8e; that §8-22-16, §8-22-17, §8-22-19, §8-22-20,
§8-22-20a, §8-22-22, §8-22-22a, §8-22-23a, §8-22-26a and §8-22-27
of said code be amended and reenacted; that said code be amended
by adding thereto two new sections, designated §8-22-18a and §8-
22-18b; that said code be amended by adding thereto a new
section, designated §11-21-12i; that §12-4-14 of said code be
amended and reenacted; that said code be amended by adding
thereto a new section, designated §33-2-15e; that §33-3-14d and
§33-3-33 of said code be amended and reenacted; and that said
code be amended by adding thereto three new sections, designated
§33-3-14e, §33-3-34 and §33-3-35, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
8
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION
TAX; AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS;
ADDITIONAL AUTHORITIES RELATING TO PENSIONS AND BOND
ISSUANCE.
§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the
citizens of the state;
(b) Imposing additional taxes can be detrimental to the
economy of the state;
(c) Imposing additional taxes is only proper under certain
circumstances;
(d) For many municipalities with
severe unfunded liabilities
of the police and fire pension funds, all available sources of
local revenue have been exhausted. Property taxes are at the
maximum allowed by the state Constitution and local business and
occupation taxes and utility taxes are at the maximum rates
allowed by state law. Other fees have reached the economic
maximum and are causing relocation of business outside the
municipal boundaries;
(e) For many municipalities with
severe unfunded police and
fire pension fund liabilities, revenue from existing sources has
become stagnant over the past few years with no expectation of
significant future growth;
(f) For many municipalities with
severe unfunded police and
fire pension fund liabilities, payments required under state law
to fund fire and police pension funds are now close to equaling
the city payrolls for police and fire protection and will rise to
exceed those payrolls within a ten-year period;
(g) For many municipalities with
severe unfunded police and
fire pension fund liabilities, payments required under state law
to fund fire and police pension funds now constitute a large
percentage of those municipalities' total budget and will rise to an even larger percentage of the available revenues in the next
ten years. Payment and benefit levels are dictated to the
municipalities by state law;
(h) As the required pension payments rise, many of the
municipalities with
severe unfunded police and fire pension fund
liabilities will find it impossible to maintain at minimum levels
necessary and proper city services including, but not limited to,
police and fire protection, street maintenance and repair and
sanitary services;
(i) For some of the municipalities with
severe unfunded
liabilities of the police and fire pension funds, the combination
of the steeply rising pension obligations and the stagnant
revenue sources raise the real possibility of municipal
bankruptcy in the near and predictable future. If this happens,
pensioners would either not receive the full benefits which they
have been promised or pressure would be placed on the state to
fund these programs;
(j) For a municipality that has
the most severe a
significant unfunded liability in its pension funds, paying off
the unfunded liability in a timely manner would cause tremendous
financial hardship and the loss of many services that would
otherwise be provided to the municipality's citizens;
(k)
Only for a municipality that has the most severe
unfunded liability in its pension funds would the The imposition
of the pension relief municipal occupational tax, the pension
relief municipal sales and service tax, the pension relief
municipal use tax or any combination of those taxes
would be an appropriate method
for a municipality that has a significant
unfunded liability in its pension funds of addressing to address
the unfunded liability;
and
(l) Only for a municipality that does not impose or ceases
to impose a business and occupation or privilege tax would the
imposition of an alternative municipal sales and service tax and
an alternative municipal use tax be appropriate
;
(m) Only for a municipality that has the most severe
unfunded liability in its pension funds would the closure of its
existing pension and relief fund plan for policemen and firemen
to those newly employed and the creation of a defined
contribution plan for newly employed policemen and firemen be
appropriate; and
(n) Only for a municipality that has the most severe
unfunded liability in its pension funds, that closes its existing
pension and relief fund plan for policemen and firemen to those
newly employed and that creates a defined contribution plan for
newly employed police officers and firefighters, would the
issuance of bonds to address the unfunded liability of its
existing pension and relief fund plan for policemen and firemen
be appropriate.
(o) No amendment to this article enacted during the third
extraordinary session of the Legislature held during calendar
year two thousand five may be interpreted or construed to allow
a municipality to adopt by ordinance a sales or use tax, by
whatever name called, that imposes either tax prior to the first
day of July, two thousand eight.
§8-13C-2. Definitions.
For the purposes of this article:
(a) "Alternative municipal sales and service tax" means the
tax authorized to be imposed by subsection (b), section four of
this article only if a municipality does not impose or ceases to
impose the business and occupation or privilege tax authorized in
section five, article thirteen of this chapter;
(b) "Alternative municipal use tax" means the tax authorized
to be imposed by subsection (b), section five of this article
only if a municipality does not impose or ceases to impose the
business and occupation or privilege tax authorized in section
five, article thirteen of this chapter;
(c) "Qualifying municipality" means any municipality, as
defined in section two, article one of this chapter:
(1) In which the weighted average of the percentages to
which its policemen's and firemen's pension and relief funds are
fully funded is
three fifty percent or less on the date of
adoption of the ordinance imposing the tax; and
(2) That has satisfied the requirements set forth in section
eleven of this article;
(d) "Pension relief municipal occupational tax" means the
tax authorized to be imposed by section three of this article and
for which the use of the proceeds of the tax are restricted by
section nine of this article;
(e) "Pension relief municipal sales and service tax" means
the tax authorized to be imposed by subsection (a), section four
of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;
(f) "Pension relief municipal use tax" means the tax
authorized to be imposed by subsection (a), section five of this
article and for which the use of the proceeds of the tax are
restricted by section nine of this article; and
(g) "Taxable employee" means
, with respect to each calendar
year, any individual:
(1) Who holds employment
within the qualifying municipality
with an employer with a place of business located within the
qualifying municipality electing to impose
the municipal payroll
tax a pension relief municipal occupational tax pursuant to this
article; and
(2) Whose salaries, wages, commissions and other earned
income that would be included in federal
adjusted gross income
for the
calendar year is more than $10,000
per year.
§8-13C-3. Pension relief municipal occupational tax.
(a) Effective on and after July 1, 2005, each qualifying
municipality, as defined in section two of this article, has the
plenary power and authority to impose, by ordinance, a pension
relief municipal occupational tax on taxable employees. Any
pension relief municipal occupational tax imposed pursuant to
this section shall meet the following requirements:
(1) The tax shall be imposed at a rate of one percent or
less;
(2) The tax shall be imposed at a uniform rate; and
(3) The tax rate shall be applied only to salaries, wages,
commissions and other earned income of taxable employees that would be included in federal
adjusted gross income for the year.
The tax rate may not be applied to other forms of income
including, but not limited to, intangible income and net profit
from a business.
(b) Each employer with a taxable employee, during each pay
period, shall withhold from the taxable employee's salary the
amount of the tax as computed by applying the appropriate tax
rate to the taxable employee's salary during that pay period and
remit the withholdings to the appropriate municipal taxing
authority.
§8-13C-4. Municipal sales and service taxes.
(a)
Pension relief municipal sales tax. -- On and after July
1, 2005, each qualifying municipality, as defined in section two
of this article, has the plenary power and authority to impose,
by ordinance, a pension relief municipal sales and service tax at
a rate not to exceed one percent, subject to the provisions of
this article:
Provided, That: (1) The tax does not apply to any
purchase of tangible personal property, custom software or the
results of taxable services in a transaction completed within the
corporate limits of the municipality before the
first day of
July, two thousand eight, or before such later date specified in
the ordinance of the municipality imposing the tax; and (2) the
effective date of the tax, or of a change in the rate of the tax,
shall be no earlier than the first day of a calendar quarter that
at a minimum begins one hundred eighty days after notice of the
tax, or of a change in the rate of tax, is provided to the Tax
Commissioner as provided in section six of this article.
(b)
Alternative municipal sales tax. - On and after July 1,
2005, notwithstanding subsection (a) of this section, and in
addition thereto in the case of a qualifying municipality, any
municipality that does not impose, or ceases to impose, the
business and occupation or privilege tax authorized by section
five, article thirteen of this chapter has the plenary power and
authority to impose, by ordinance, an alternative municipal sales
and service tax at a rate not to exceed one percent, subject to
the provisions of this article:
Provided, That: (1) The tax
does not apply to any purchase of tangible personal property,
custom software or the results of taxable services in a
transaction completed within the corporate limits of the
municipality before the
first day of July, two thousand eight, or
before such later date specified in the ordinance of the
municipality imposing the tax; and (2) the effective date of the
tax, or of a change in the rate of the tax, shall be no earlier
than the first day of a calendar quarter that at a minimum begins
one hundred eighty days after notice of the tax, or of a change
in the rate of tax, is provided to the Tax Commissioner as
provided in section six of this article.
(c)
Uniformity of tax base. -- Any municipal sales and
service tax imposed under the authority granted by this section
is subject to the following:
(1) The base of a municipal sales and service tax imposed
pursuant to this section shall be identical to the base of the
consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality, subject to
the following:
(A) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and
exceptions from consumers sales and service tax apply to a
municipal sales and service tax imposed pursuant to this section;
and
(B) Sales of gasoline and special fuel are not subject to a
municipal sales and service tax imposed pursuant to this section;
(2) Any municipal sales and service tax imposed pursuant to
this section applies solely to tangible personal property, custom
software and services that are sourced to the municipality. The
sourcing rules set forth in article fifteen-b, chapter eleven of
this code, including any amendments thereto, apply to municipal
sales and use taxes levied pursuant to this article.
(d)
Notification of Tax Commissioner. -- Any municipality
that imposes a municipal sales and service tax pursuant to this
section or changes the rate of a municipal sales and service tax
imposed pursuant to this section shall notify the Tax
Commissioner pursuant to section six of this article.
(e)
State level administration required. -- Any municipality
that imposes a municipal sales and service tax pursuant to this
section may not administer or collect the tax, but shall use the
services of the Tax Commissioner to administer, enforce and
collect the tax.
(f)
Tax in addition to state use tax. -- Any municipal sales
and service tax imposed pursuant to this section shall be imposed in addition to the consumers sales and service tax imposed
pursuant to article fifteen, chapter eleven of this code on sales
made and services rendered within the boundaries of the
municipality and, except as exempted or excepted, all sales made
and services rendered within the boundaries of the municipality
shall remain subject to the tax levied by that article.
(g)
Tax in addition to special district tax. -- Any
municipal sales and service tax imposed pursuant to this section
shall be imposed in addition to any tax imposed pursuant to
section one, article eighteen, chapter seven of this code,
sections six and seven, article thirteen of this chapter and
section twelve, article thirty-eight of this chapter.
§8-13C-5. Municipal use tax.
(a)
Pension relief municipal use tax. -- On and after July
1, 2005, each qualifying municipality, as defined in section two
of this article, that imposes a pension relief municipal sales
and service tax pursuant to this article shall impose, by
ordinance, a pension relief municipal use tax at the same rate
that is set for the pension relief municipal sales and service
tax:
Provided, That: (1) The tax does not apply to any use of
tangible personal property, custom software or the results of
taxable services in the corporate limits of the municipality
where the first use occurs before the
first day of July, two
thousand eight, or before such later date specified in the
ordinance of the municipality imposing the tax; and (2) the
effective date of the tax, or of a change in the rate of the tax,
shall be no earlier than the first day of a calendar quarter that at a minimum begins one hundred eighty days after notice of the
tax, or of a change in the rate of tax, is provided to the Tax
Commissioner as provided in section six of this article.
(b)
Alternative municipal use tax. -- On and after July 1,
2005, each municipality that imposes an alternative municipal
sales and service tax pursuant to this article shall impose, by
ordinance, an alternative municipal use tax at the same rate that
is set for the alternative municipal sales and service tax:
Provided, That: (1) The tax does not apply to any use of
tangible personal property, custom software or the results of
taxable services in the corporate limits of the municipality
where the first use occurs before the
first day of July, two
thousand eight, or before such later date specified in the
ordinance of the municipality imposing the tax; and (2) the
effective date of the tax, or of a change in the rate of the tax,
shall be no earlier than the first day of a calendar quarter that
at a minimum begins one hundred eighty days after notice of the
tax, or of a change in the rate of tax, is provided to the Tax
Commissioner as provided in section six of this article.
(c)
Uniformity of tax base. -- The base of a municipal use
tax imposed pursuant to this section shall be identical to the
base of the use tax imposed pursuant to article fifteen-a,
chapter eleven of this code on the use of tangible personal
property, custom software and taxable services within the
boundaries of the municipality, subject to the following:
(1) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and exceptions from the use tax apply to a municipal use tax imposed
pursuant to this section; and
(2) Uses of gasoline and special fuel are not subject to a
municipal use tax imposed pursuant to this section when the use
is subject to the tax imposed by article fourteen-c, chapter
eleven of this code.
(d)
Notification to Tax Commissioner. -- Any municipality
that imposes a municipal use tax pursuant to this section or
changes the rate of a municipal use tax imposed pursuant to this
section shall notify the Tax Commissioner pursuant to section six
of this article.
(e)
State level administration required. -- Any municipality
that imposes a municipal use tax pursuant to this section may not
administer or collect the tax, but shall use the services of the
Tax Commissioner to administer, enforce and collect the taxes.
(f)
Tax in addition to state use tax. -- Any municipal use
tax imposed pursuant to this section shall be imposed in addition
to the use tax imposed pursuant to article fifteen-a, chapter
eleven of this code on the use of tangible personal property,
custom software or taxable services within the boundaries of the
municipality and, except as exempted or excepted, all use of
tangible personal property, custom software or taxable services
within the boundaries of the municipality shall remain subject to
the tax levied by said article.
(g)
Tax in addition to special district tax. -- Any
municipal use tax imposed pursuant to this section shall be
imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and
seven, article thirteen of this chapter and section twelve,
article thirty-eight of this chapter.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal
occupational tax, a pension relief municipal sales and service
tax and a pension relief municipal use tax imposed pursuant to
this article shall be used solely for one of the following
purposes:
(1) Directly reducing the unfunded actuarial accrued
liability of policemen's and firemen's pension and relief funds
of the qualifying municipality imposing the tax; or
(2) Meeting the principal, interest and any reserve
requirement obligations of any bonds issued pursuant to section
fourteen of this article.
(b) For any qualifying municipality that chooses to apply
the proceeds from a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes
directly to reducing the unfunded actuarial accrued liability of
policemen's and firemen's pension and relief funds, the
qualifying municipality loses its authority to impose those taxes
after:
(1) The municipality fails to annually fund, at a minimum,
all normal costs of the qualifying municipality's policemen's and
firemen's pension and relief funds as determined by the
consulting actuary as provided under section twenty-a, article twenty-two of this chapter; or
(2) The unfunded actuarial accrued liability of the
qualifying municipality's policemen's and firemen's pension and
relief funds is eliminated; or
(3) Sufficient moneys accrue from the proceeds of the
pension relief municipal occupational tax, the pension relief
municipal sales and service tax, the pension relief municipal use
tax or any permitted combination of these taxes to eliminate the
unfunded actuarial accrued liability of the qualifying
municipality's policemen's and firemen's pension and relief
funds.
(c) For any qualifying municipality that chooses to apply
the proceeds from a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes to
the principal, interest and any reserve requirement and arbitrage
rebate obligations on any bonds issued pursuant to section
fourteen of this article, the qualifying municipality loses its
authority to impose those taxes after:
(1) The principal, interest and any reserve requirement and
arbitrage rebate obligations on the bonds issued pursuant to
section fourteen of this article are met;
(2) Sufficient moneys accrue from the proceeds of the
pension relief municipal occupational tax, the pension relief
municipal sales and service tax, the pension relief municipal use
tax or any permitted combination of these taxes to meet the
principal, interest and any reserve requirement and arbitrage rebate obligations on the bonds issued pursuant to section
fourteen of this article; and
(3) After retirement of bonds issued pursuant to section
fourteen of this article, any unfunded actuarial accrued
liability of the qualifying municipality's pension and relief
funds for policemen and firemen is eliminated.
§8-13C-11. Additional requirements for authority to impose
certain taxes.
(a) The authority to impose the pension relief municipal
occupational tax, the pension relief municipal sales and service
tax and the pension relief municipal use tax, all provided in
this article, is not effective until a municipality wishing to
impose the taxes presents to the joint committee on government
and finance a plan to remove the unfunded liabilities of its
policemen's and firemen's pension funds and the necessary changes
in West Virginia law have been enacted to allow for
implementation of the municipal plan.
(b) Notwithstanding any other provision of this code to the
contrary, no
cost-of-living increases or other benefit increases
,
except as may be provided pursuant to section twenty-six-a,
article twenty-two of this chapter, and no new benefits
, may be
granted to or received by any member or beneficiary of a
policemen's and firemen's pension and relief funds of a
municipality during any period that the municipality imposes a
pension relief municipal occupational tax, a pension relief
municipal sales and service tax, the pension relief municipal use
tax or any combination thereof authorized under this chapter.
§8-13C-14. Authorization for closure of existing retirement
plans, creation of defined contribution plans and
issuance of bonds for certain qualifying
municipalities.
(a) Notwithstanding any other section of this code to the
contrary and subject to subsection (b) of this section, any
qualifying municipality, as that term is defined in section two
of this article, has the following authority:
(1) To close its existing pension and relief fund plan for
policemen and firemen provided in article twenty-two of this
chapter for policemen and firemen hired on and after a future
date to be set by the governing body of the municipality;
(2) To establish a defined contribution plan for police
officers and firefighters hired on and after the future date set
by the governing body of the municipality to close its existing
pension and relief fund plan for policemen and firemen; and
(3) To issue revenue bonds for the purpose of eliminating
the unfunded actuarial accrued liability of the existing pension
and relief fund plan for policemen and firemen and to issue
refunding bonds issued to refund, in whole or in part, bonds
issued for such purpose.
(b) The authority granted in subsection (a) of this section
is subject to the following:
(1) No qualifying municipality may close an existing pension
and relief fund plan for policemen and firemen pursuant to
subdivision (1), subsection (a) of this section unless
:
(A) The the qualifying municipality issues revenue bonds for the purpose of eliminating the unfunded actuarial accrued
liability of the existing pension and relief fund plan for
policemen and firemen;
and
(B) The qualifying municipality establishes a defined
contribution plan for police officers and firefighters pursuant
to subdivision (2), subsection (a) of this section;
(2) No qualifying municipality may establish a defined
contribution plan for police officers and firefighters pursuant
to subdivision (2), subsection (a) of this section unless:
(A) The qualifying municipality closes its existing pension
and relief fund plan for policemen and firemen pursuant to
subdivision (1), subsection (a) of this section; and
(B) The qualifying municipality issues revenue bonds for the
purpose of eliminating the unfunded actuarial accrued liability
of the existing pension and relief fund plan for policemen and
firemen;
(3) No qualifying municipality may issue bonds pursuant to
subdivision (3), subsection (a) of this section unless:
(A) The qualifying municipality closes its existing pension
and relief fund plan for policemen and firemen pursuant to
subdivision (1), subsection (a) of this section; and
(B) The qualifying municipality establishes a defined
contribution plan for police officers and firefighters pursuant
to subdivision (2), subsection (a) of this section;
(4)(3) No qualifying municipality may exercise any authority
provided in subsection (a) of this section unless it obtains a
determination of the unfunded actuarial accrued liability of its existing pension and relief fund plans for policemen and firemen
from the State Treasurer;
(5)(4) If the qualifying municipality elects to issue bonds
pursuant to subdivision (3), subsection (a) of this section, the
following applies:
(A) The proceeds of the revenue bonds shall be at least
equal to the unfunded actuarial accrued liability as determined
by the
State Treasurer Municipal Pensions Oversight Board plus
any reserve fund requirements and any costs, including accrued or
capitalized interest, associated with issuing the bonds. All of
the proceeds shall be applied to the payment of the unfunded
actuarial accrued liability, the funding of reserve requirements
and the payment of costs associated with the issuance of the
bonds and may not be used for any other purpose;
(B) The proceeds of any refunding bonds shall be used to
refund all or any portion of the revenue bonds authorized in this
section, to fund any required reserve requirements for the
refunding bonds and to pay costs of issuance associated with the
refunding bonds and for no other purpose;
and
(C) Notwithstanding any other provision of this code to the
contrary, the proceeds of the bonds or refunding bonds shall be
invested with the West Virginia Investment Management Board
established under the provisions of article six, chapter twelve
of this code
; and
(D) Any bonds issued pursuant to this article shall be
guaranteed through a municipal bond insurance policy, a letter of
credit or some other form of commonly used commercial guaranty that shifts the credit risk associated with the debt service
payments on the bonds to the guarantor; and
(E) The bonds and any offering document associated with the
bonds shall contain the following legend: "The bonds are limited
obligations of [the qualifying municipality] and are not a lien
or charge upon the funds or property of [the qualifying
municipality], except to the extent of the pledge of [pension
relief taxes]. The bonds shall not constitute general obligations
of either the [qualifying municipality] or the state of West
Virginia and under no circumstances shall the bonds be payable
from, nor shall the holders thereof have any rightful claim to,
any income, revenues, funds or assets of the [qualifying
municipality] or the state of West Virginia other than from the
[pension relief taxes] pledged to the payment of the bonds. The
bonds are not a moral obligation of the state of West Virginia or
in any way secured by the assets of the state of West Virginia.
In the event of a default with respect to the bonds, the state of
West Virginia will not cure such default or provide any funds to
cure such default. The holders of the bonds shall rely solely
upon the [pension relief taxes] for repayment of this bond."
(6)(5)If the qualifying municipality elects to issue bonds
pursuant to subdivision (3), subsection (a) of this section, the
qualifying municipality shall impose a pension relief municipal
occupational tax, a pension relief municipal sales and service
tax, a pension relief municipal use tax or any permitted
combination of these taxes at a rate projected to generate
sufficient revenue to meet the principal, interest and any reserve requirement and arbitrage rebate obligations on the
bonds, subject to the following:
(A) This requirement is void after the qualifying
municipality loses its authority to impose those taxes pursuant
to subsection (b) or (c), section nine of this article; and
(B) If the revenue generated by a pension relief municipal
occupational tax, a pension relief municipal sales and service
tax and a pension relief municipal use tax is insufficient to
meet the principal, interest and any reserve requirement and
arbitrage rebate obligations on the bonds, the qualifying
municipality shall not issue the bonds;
(7)(6) If the qualifying municipality elects to issue bonds
pursuant to subdivision (3), subsection (a) of this section, all
proceeds from a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes
shall be dedicated solely to paying the principal, interest and
any reserve requirement and arbitrage rebate obligations on the
bonds;
(8)(7) If the qualifying municipality elects to close an
existing pension and relief fund plan for policemen and firemen
pursuant to subdivision (1), subsection (a) of this section, all
current and retired employees in the existing pension and relief
fund plans for policemen and firemen shall remain in that plan
and shall be paid all benefits of that plan in accordance with
Part III, article twenty-two of this chapter;
(9)(8) Any such revenue bonds or refunding bonds shall bear interest at not more than twelve percent per annum, payable
semiannually, or at shorter intervals, and shall mature at such
time or times, not exceeding thirty years, as may be determined
by the ordinance authorizing the issuance of the bonds. The
bonds may be made redeemable before maturity, at the option of
the municipality at not more than the par value thereof, plus a
premium of not more than five percent, under such terms and
conditions as may be fixed by the ordinance authorizing the
issuance of the bonds. The principal and interest of the bonds
may be made payable in any lawful medium. The ordinance shall
determine the form of the bonds and shall set forth any
registration or conversion privileges, and shall fix the
denomination or denominations of such bonds, and the place or
places of the payment of principal and interest thereof, which
may be at any banking institution or trust company within or
without the state. The bonds shall contain a statement on their
face that the municipality shall not be obligated to pay the
same, or the interest thereon, except from the special fund
derived from revenues collected by the municipality from the
imposition of a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any permitted combination of these taxes and
which the municipality may pledge as security for the bonds. All
the bonds shall be, and shall have and are hereby declared to
have all the qualities and incidents of negotiable instruments,
under the Uniform Commercial Code of the state. The bonds shall
be executed in such manner as the governing body of the municipality may direct. The bonds shall be sold by the
municipality in such manner as may be determined to be for the
best interest of the municipality. Any surplus of the bond
proceeds over and above the cost of paying the unfunded
liability, plus any amount required for reserves, capitalized
interest and costs of issuance thereof or in the case of
refunding bonds over and above the amount necessary to refund the
existing bonds being refunded by such issue, plus any amount
required for reserves, capitalized interest and costs of issuance
thereof, shall be paid into the debt service fund for such bonds;
and
(10)(9) The A defined contribution plan established by the
municipality shall:
(A)
Meet the federal qualification requirements of 26 U.S.C.
§401 and related sections of the Internal Revenue Code as
applicable to governmental plans Satisfy, in both form and
operation, the tax qualification requirements of § 401(a) or
457(b) and related sections of the Internal Revenue Code of 1986
(including successors thereto and amendments thereof), as
applicable to governmental plans, and the qualifying municipality
shall adopt a written plan document which embodies the
requirements of this article, including applicable federal
qualification requirements and, shall have the authority to
promulgate rules and to amend the plan as may be required from
time to time to effect the intent of this provision;
(B) Set the amount of each employee's contribution and the
amount of each employer's contribution;
(C) Require that the amount of annuity payments a retired
member receives be based solely upon the balance in the member's
annuity account at the date of retirement, the retirement option
selected, or in the event of an annuity option being selected,
the actuarial life expectancy of the member of any other factors
that normally govern annuity payments;
(D) Include detailed provisions that require the prudent and
safe handling of the retirement funds
for the exclusive benefit
of the plan and its participants and beneficiaries, including
without limitation, rules which provide for the investment of
retirement funds, in accordance with fiduciary standards imposed
by state law and the Internal Revenue Code of 1986 (including
successors thereto and amendments thereof), as applicable to
governmental plan. The qualifying municipality may elect to
provide that individual participants and beneficiaries may
exercise control over the investment of the assets held in their
respective individual accounts. To the extent that a participant
or beneficiary exercises such investment control over his or her
account, no person who is otherwise a fiduciary shall be liable
for any loss, or by reason of any breach, which results from such
participant's or beneficiary's exercise of control, to the extent
allowed by law;
(E) Provide retirement options; and
(F) Include any other provision and authorize any policy
that the qualifying municipality determines is necessary or
incidental to the establishment and operation of the defined
contribution plan. The other provisions may include, but are not limited to, the authorization to contract with one or more
private pension, insurance, annuity, mutual fund or other
qualified company or companies to administer the day-to-day
operations of the plan and to provide investments.
(c) If a qualifying municipality elects to establish a
defined contribution plan pursuant to subdivision (2), subsection
(a) of this section, the qualifying municipality shall also
establish, by ordinance, mechanisms to provide disability
benefits and death benefits for eligible members.
(d)
The authority granted to a qualifying municipality
pursuant to subsection (a) of this section to close its existing
pension and relief fund plan for police officers and
firefighters, to establish a defined contribution plan for police
officers and firefighters and to issue revenue bonds shall
terminate on the thirty-first day of December, two thousand five
A person who becomes a participant in a defined contribution plan
established by a qualifying municipality under this article shall
not accrue benefits or other rights (or in the case of a
re-employed individual, any additional benefits or additional
rights) under a defined benefit plan sponsored by the same
qualifying municipality under article twenty-two of this chapter
with respect to the same period of service.
(e) The right of any person to a benefit provided under a
defined contribution plan established by a qualifying
municipality pursuant to this section shall not be subjected to
execution, attachment, garnishment, the operation of bankruptcy
or insolvency laws, or other process whatsoever nor shall any assignment thereof be enforceable in any court with the exception
that the benefits or contributions under the plan shall be
subject to "qualified domestic relations orders" as that term is
defined in 26 U.S.C. §414 with respect to governmental plans.
(f) The interest earned on any bonds issued under the
authority granted in this section is exempt from any tax imposed
under the provisions of this code.
(g) Bonds and refunding bonds issued pursuant to the
authority provided by this section shall never constitute a
direct and general obligation of the State of West Virginia and
the full faith and credit of the state is not pledged to secure
the payment of the principal and interest of such bonds. Bonds
and refunding bonds issued under this section shall state on
their face that the bonds or bonds do not constitute a debt of
the State of West Virginia and that payment of the bonds,
interest and charges thereon cannot become an obligation of the
State of West Virginia.
ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-8a. Eligibility for allocation from Municipal Pensions and
Protection Fund or the Fire Protection Fund.
In order To be eligible to receive revenues allocated from
the
Municipal Pensions and Protection Fund or the Fire Protection
Fund, each volunteer or part volunteer fire company or department
must meet the requirements listed in subdivisions (a) through
(c)
(d) of this section.
Each volunteer or part volunteer fire company or department must:
(a) Submit and maintain current submission of fire loss data
to the state fire marshal, including verification, by notarized
statement, if no fire loss has occurred;
(b) Complete or be in the process of receiving firefighters
training, including section one of the West Virginia university
fire service extension or its equivalent. Such fire company or
department must have at least ten members certified as having
completed such training or if a volunteer fire company or
department has twenty or fewer members, fifty percent of the
active volunteer members must have completed such training;
and
(c) Comply with the sworn statement of annual expenditures
or report requirements set forth in section eight-d of this
article; and
(c)(d) Comply with all
other applicable federal and state
laws.
§8-15-8b. Authorized expenditures of monies from the Municipal
Pensions and Protection Fund or the Fire Protection Fund;
redistribution upon decertification.
(a) Revenues Monies allocated
from the Fire Protection Fund
to volunteer and part volunteer fire companies and departments
may be expended only for the items listed in subdivisions (1)
through
(12) (13) of this
section subsection.
Funds Monies received from the State for volunteer and part
volunteer fire companies and departments, pursuant to
sections
fourteen-d and thirty-three section thirty-four, article three,
and section
sixteen-a, article twelve seven, article twelve-c, all of chapter thirty-three of this code, may not be commingled
with funds received from any other source. Expenditures may be
made for the following:
(1) Personal protective equipment, including protective head
gear, bunker coats, pants, boots, combination of bunker pants and
boots, coats and gloves;
(2) Equipment for compliance with the national fire
protection standard or automotive fire apparatus, NFPA-1901;
(3) Compliance with insurance service office recommendations
relating to fire departments;
(4) Rescue equipment, communications equipment and ambulance
equipment:
Provided, That no moneys received from the municipal
pensions and protection fund or the fire protection fund may be
used for equipment for personal vehicles owned or operated by
volunteer fire company or department members;
(5) Capital improvements reasonably required for effective
and efficient fire protection service and maintenance of the
capital improvements;
(6) Retirement of debts;
(7) Payment of utility bills;
(8) Payment of the cost of immunizations, including any
laboratory work incident to the immunizations, for firefighters
against hepatitis-b and other blood borne pathogens:
Provided,
That the vaccine shall be purchased through the state
immunization program or from the lowest cost vendor available:
Provided, however, That volunteer and part volunteer fire
companies and departments shall seek to obtain no cost administration of the vaccinations through local boards of
health:
Provided further, That in the event any volunteer or
part volunteer fire company or department is unable to obtain no
cost administration of the vaccinations through a local board of
health, the company or department shall seek to obtain the lowest
cost available for the administration of the vaccinations from a
licensed health care provider;
(9) Any filing fee required to be paid to the Legislative
Auditor's Office under section fourteen, article four, chapter
twelve of this code relating to sworn statements of annual
expenditures submitted by volunteer or part volunteer fire
companies or departments that receive state funds or grants;
(10) (9) Property/casualty insurance premiums for protection
and indemnification against loss or damage or liability;
(11)(10) Operating expenses reasonably required in the
normal course of providing effective and efficient fire
protection service, which include, but are not limited to,
gasoline, bank fees, postage and accounting costs; and
(12)(11) Dues paid to national, state and county
associations.
(b) If a volunteer or part volunteer fire company or
department purchases an item with monies allocated from the Fire
Protection Fund and the item is subsequently sold, any monies
derived by the company or department from the sale of that item
shall be expended in accordance with the provisions of subsection
(a) of this section.
(c) If the State Fire Marshal issues a cease and desist order to a volunteer or part volunteer fire company or department
to stop operations after the State Fire Commission has withdrawn
certification pursuant to article three, chapter twenty-nine of
this code, the State Fire Marshal shall, within sixty days of the
cease and desist order, transfer any unexpended, unencumbered
monies which were allocated to the volunteer fire company or
department from the Fire Protection Fund to a special revenue
account hereby created in the State Treasury, designated the
"Volunteer Fire Department Decertification Account." The next
following quarter the State Treasurer shall pay the amount held
in the special revenue account to the Fire Protection Fund to be
redistributed to eligible volunteer fire companies or
departments.
(d) If the State Fire Marshal issues a cease and desist
order to a volunteer or part volunteer fire company or department
to stop operations after the State Fire Commission has withdrawn
certification pursuant to the provisions of article three,
chapter twenty-nine of this code, the State Fire Marshal shall,
within one year of the cease and desist order, implement one of
the following options to sell or transfer any items purchased by
the decertified volunteer fire company or department with monies
allocated from the Fire Protection Fund:
(1) If the item was purchased solely with monies allocated
from the Fire Protection Fund, the State Fire Marshal may
transfer the item to another volunteer fire company or
department, with priority given to companies or departments
located in the municipality or county in which the decertified company or department was located;
(2) If the item was purchased solely with monies allocated
from the Fire Protection Fund, the State Fire Marshal may sell
the item and any monies derived from the sale of that item shall
be placed in the Volunteer Fire Department Decertification
Account. The next following quarter the State Treasurer shall
pay the amount held in the special revenue account to the Fire
Protection Fund to be redistributed to eligible volunteer fire
companies or departments;
(3) If the item was purchased with monies allocated from the
Fire Protection Fund and monies allocated from municipal or
county sources, the State Fire Marshal may transfer the item to
another volunteer fire company or department in the municipality
or county where the decertified company or department is located
if each municipality or county which allocated monies towards the
purchase of the item agrees to the transfer; or
(4) If the item was purchased with monies allocated from the
Fire Protection Fund and monies allocated from municipal, county
or other sources, the State Fire Marshal may sell the item and
distribute the proceeds derived from the sale on a pro-rata basis
according to the State Fire Marshal's reasonable approximation of
the percentage of monies allocated from each funding source for
the purchase of the item. Any monies derived from the sale which
are attributable to allocations from the Fire Protection Fund
shall be placed in the Volunteer Fire Department Decertification
Account. The next following quarter the State Treasurer shall
pay the amount held in the special revenue account to the Fire Protection Fund to be redistributed to eligible volunteer fire
companies or departments.
(e) The State Fire Marshal shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code to establish criteria
for the sale or transfer of items or monies pursuant to the
provisions of subsections (c) and (d) of this section and to
otherwise implement the provisions of subsections (c) and (d).
§8-15-8d. Sworn statement of annual expenditures or report by
volunteer or part volunteer fire companies or departments;
penalties for noncompliance; penalties for fraudulent statement.
(a) Volunteer or part volunteer fire companies or
departments receiving formula distributions pursuant to sections
thirty-four, article three, and section seven, article twelve-c,
all of chapter thirty-three of this code, shall either:
(1) File a report, as defined in section fourteen, article
four, chapter twelve of this Code, with the Legislative Auditor
on or before July 1 of each year. The report shall be made by an
independent certified public accountant at the cost of the
volunteer fire company or department. The scope of the report is
limited to showing that the funds distributed were spent for
authorized purposes; or
(2) File a sworn statement of annual expenditures with the
Legislative Auditor on or before July 1 of each year. The sworn
statement of expenditures shall be signed by the chief or
director of the volunteer fire company or department and shall be
made under oath and acknowledged before a notary public.
(b) If the sworn statement of annual expenditures or report
required by this section is not filed with the Legislative
Auditor by July 1, or unless the time period is extended by the
Legislative Auditor, the Legislative Auditor shall notify the
State Treasurer who shall withhold payment of any amount that
would otherwise be distributed to the volunteer fire company or
department under the provisions of section thirty-four, article
three, and section seven, article twelve-c, all of chapter
thirty-three of this code, until the report is submitted to the
Legislative Auditor. Moneys withheld pursuant to this subsection
(b) shall be deposited quarterly in the Volunteer Fire Department
Audit Account," created in subsection (c) of this section.
(c) The Legislative Auditor may assign an employee or
employees to perform audits or reviews at the direction of the
Legislative Auditor of the disbursement of state grant funds to
volunteer fire departments. The volunteer fire company or
department shall cooperate with the Legislative Auditor, the
Legislative Auditor's employees and the State Auditor in
performing their duties under this section. If a volunteer fire
company or department does not cooperate as required by the
provisions of this section, the Legislative Auditor shall notify
the State Treasurer, who shall withhold payment of any amount
that would otherwise be distributed to the volunteer fire company
or department under the provisions of section thirty-four,
article three, and section seven, article twelve-c, all of
chapter thirty-three of this code, until the Legislative Auditor
notifies the Treasurer that the volunteer fire company or department has complied with the provisions of this section. The
State Treasurer shall quarterly pay the amount withheld into a
special revenue account hereby created in the State Treasury,
designated the "Volunteer Fire Department Audit Account". Upon
notice from the Legislative Auditor that a volunteer fire company
or department has not complied with the provisions of this
section for four consecutive quarters, the next following quarter
the State Treasurer shall pay the amount withheld in the special
revenue account to the Fire Protection Fund to be redistributed
to eligible volunteer fire companies or departments. Thereafter
any monies that would otherwise have been distributed to the
volunteer fire company or department under the provisions of
section thirty-three, article three, and section seven, article
twelve-c, all of chapter thirty-three of this code, shall be
retained in the Fire Protection Fund and distributed to eligible
volunteer fire companies or departments. A volunteer fire
company or department subsequently complying with the provisions
of this section is eligible to receive monies under the
provisions of section thirty-four, article three, and section
seven, article twelve-c, all of chapter thirty-three of this
code, from the date of compliance forward, but may not recover
monies previously redistributed or retained in the Fire
Protection Fund pursuant to the provisions of this subsection
(c).
(d) Whenever the State Auditor performs an audit of a
volunteer fire company or department for any purpose, the Auditor
shall also conduct an audit of other state funds received by the volunteer fire company or department pursuant to section
thirty-four, article three, and section seven, article twelve-c,
all of chapter thirty-three of this code. The State Auditor
shall send a copy of the audit to the Legislative Auditor. The
Legislative Auditor may accept an audit performed by the State
Auditor in lieu of performing an audit under this section.
(e) If the Legislative Auditor is notified by a grantor, as
defined in section fourteen, article four, chapter twelve of this
code, that a volunteer fire company or department has failed to
file a report or a sworn statement of expenditures for a state
grant it received, the Legislative Auditor shall notify the State
Treasurer, who shall withhold further distributions to the
volunteer fire company or department in the same manner provided
in subsection (c) of this section.
(f) Any report submitted pursuant to the provisions of this
section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(g) Any person who files a fraudulent sworn statement of
expenditures or a fraudulent report pursuant to this section is
guilty of a felony and, upon conviction thereof, shall be fined
not less than $1,000.00 nor more than $5,000.00 or imprisoned in
a state correctional facility for not less than one year nor more
than five years, or both fined and imprisoned.
§8-15-8e. Eligibility for allocation from Volunteer Firefighters
Length of Service Awards Program Fund.
(a) To be eligible to receive funds allocated from the
Volunteer Firefighters Length of Service Awards Program Fund administered under section thirty-five, article three, chapter
thirty-three of this code, each volunteer and part volunteer fire
company and department shall meet the requirements listed in
subdivisions (a) through (d) of section eight-a of this article,
and be enrolled in a qualified length of service awards program.
(b) A length of service awards program is qualified for
purposes of this section if approved by the State Fire Marshal.
The State Fire Marshal shall approve a length of service awards
program if:
(1) A volunteer or part volunteer fire company or department
submits, or if the program is being provided to a group, the
volunteer and part volunteer fire companies and departments
participating in the group submit to the State Fire Marshal, in
the manner and form prescribed by the State Fire Marshal, an
application for approval of the program, together with such
documents and other information relating to the program as the
State Fire Marshal may determine to be necessary to perform the
duties prescribed under this section and section thirty-five,
article three, chapter thirty-three of this code;
(2) In consultation with the Insurance Commissioner and such
others as the State Fire Marshal may deem necessary, the State
Fire Marshal determines the provider of the program is licensed
to provide the program under chapter thirty-three of this code;
and
(3) The State Fire Marshal determines the program is in the
best interests of the member beneficiaries of the program.
(c) The State Fire Marshal may refuse or revoke approval of a length of service awards program if the program or its provider
is not in compliance with any applicable federal or state law.
ARTICLE 22. RETIREMENT BENEFITS GENERALLY; POLICEMEN'S PENSION
AND RELIEF FUND; FIREMEN'S PENSION AND RELIEF
FUND; PENSION PLANS FOR EMPLOYEES OF WATERWORKS
SYSTEM, SEWERAGE SYSTEM OR COMBINED WATERWORKS
AND SEWERAGE SYSTEM.
PART III. POLICEMEN'S PENSION AND RELIEF FUND; FIREMEN'S
PENSION AND RELIEF FUND.
§8-22-16. Pension and relief funds for policemen and firemen;
creation of boards of trustees; definitions;
continuance of funds; average adjusted salary.
(a) In every Class I and Class II city having, or which may
hereafter have, a paid police department and a paid fire
department, or either of such departments, the governing body
shall, and in every Class III city and Class IV town or village
having, or which may hereafter have, a paid police department and
a paid fire department, or either of such departments, the
governing body may, by ordinance provide for the establishment
and maintenance of a policemen's pension and relief fund and for
a firemen's pension and relief fund for the purposes hereinafter
enumerated and, thereupon, there shall be created boards of
trustees which shall administer and distribute the moneys
authorized to be raised by this section and the following
sections of this article. For the purposes of this section and
sections seventeen through twenty-eight, inclusive, of this
article, the term "paid police department" or "paid fire department" means only a municipal police department or municipal
fire department, as the case may be, maintained and paid for out
of public funds and whose employees are paid on a full-time basis
out of public funds. The term shall not be taken to mean any
such department whose employees are paid nominal salaries or
wages or are only paid for services actually rendered on an
hourly basis.
(b) Unless and until other provision is made by subsequent
legislative action, any policemen's pension and relief fund and
any firemen's pension and relief fund established in accordance
with the provisions of former article six of this chapter or this
article shall be or remain mandatory and shall be governed by the
provisions of sections sixteen through twenty-eight, inclusive,
of this article (with like effect, in the case of a Class III
city or Class IV town or village, as if such Class III city or
Class IV town or village were a Class I or Class II city) and
shall not be affected by the transition from one class of
municipal corporation to a lower class as specified in section
three, article one of this chapter:
Provided, That any Class III
or Class IV town or village that hereafter becomes a Class I or
Class II city shall not be required to establish such pension and
relief fund if said town or village is a participant in an
existing pension plan regarding paid firemen and/or policemen.
(c) After the thirtieth day of June, one thousand nine
hundred eighty-one, for the purposes of sections sixteen through
twenty-eight, inclusive, of this article, the word "member" means
any paid police officer or firefighter who at time of appointment to such paid police or fire department met the medical
requirements of Chapter 2-2 of the National Fire Protection
Association Standards Number 1001 -- Firefighters Professional
Qualifications '74 as updated from year to year:
Provided, That
any police officer or firefighter who was a member of
such the
fund prior to the first day of July, one thousand nine hundred
eighty-one, shall be considered a member after June thirtieth,
one thousand nine hundred eighty-one.
(d) For purposes of sections sixteen through twenty-eight,
inclusive, of this article, the words "salary or compensation"
means remuneration actually received by a member, plus
such the
member's deferred compensation under Sections 125, 401(k),
414(h)(2) and 457 of the United States Internal Revenue Code of
1986, as amended:
Provided, That the remuneration received by
such the member during any twelve-consecutive-month period
utilized used in determining benefits which is in excess of an
amount which is twenty percent greater than the "average adjusted
salary" received by
such the member in the two consecutive
twelve-consecutive-month periods immediately preceding
such the
twelve-consecutive-month period
utilized used in determining
benefits shall be disregarded:
Provided, however, That the
"average adjusted salary" means the arithmetic average of each
year's adjusted salary,
such the adjustment made to reflect
current salary rate and such average adjusted salary shall be
determined as follows: Assuming "year-one" means the second
twelve-consecutive-month period preceding such
twelve-consecutive-month period
utilized used in determining benefits, "year-two" means the twelve-consecutive-month period
immediately preceding such twelve-consecutive-month period
utilized used in determining benefits and "year-three" means the
twelve-consecutive-month period
utilized used in determining
benefits, year-one total remuneration shall be multiplied by the
ratio of year-three base salary, exclusive of all overtime and
other remuneration, to year-one base salary, exclusive of all
overtime and other remuneration, such product shall equal
"year-one adjusted salary"; year-two total remuneration shall be
multiplied by the ratio of year-three base salary, exclusive of
all overtime and other remuneration, to year-two base salary,
exclusive of all overtime and other remuneration, such product
shall equal "year-two adjusted salary"; and the arithmetic
average of year-one adjusted salary and year-two adjusted salary
shall equal the average adjusted salary.
Notwithstanding any
other provision of this code to the contrary, for members hired
after the thirtieth day of June, two thousand nine, calculation
of compensation and average adjusted salary for purposes of
sections sixteen through twenty-eight, inclusive, of this article
shall exclude from total remuneration in each of year one, year
two and year three any remuneration for overtime hours in excess
of the average number of overtime hours worked during the last
ten years of the member's employment as a police officer or
firefighter while a member of the fund, or the average number of
overtime hours worked annually during all years of the person's
employment as a municipal police officer or firefighter while a
member of the fund if the member has worked less than ten years.
§8-22-17. Powers and duties of boards of trustees.
Such board of trustees, or (a) Boards of trustees shall be
public corporations by the name and style of the Board of
Trustees of the Policemen's Pension and Relief Fund of (name of
municipality) or the Board of Trustees of the Firemen's Pension
and Relief Fund of (name of municipality), as the case may be, by
which names they may sue and be sued, plead and be impleaded,
contract and be contracted with, take and hold real and personal
property for the use of
said the policemen's pension and relief
fund or
said the firemen's pension and relief fund and have and
use a common seal. In the absence of
such a seal, the seal of
the president of
any such the corporation shall be equivalent to
such a common seal.
Any such A board of trustees may also in its
corporate name do and perform any and all other acts and business
pertaining to the trust created hereby or by any conveyance,
devise or dedication made for the uses and purposes of
said the
board.
(b) After the thirtieth day of June, one thousand nine
hundred eighty-one, any
such board of trustees
boards of trustees
and any members
thereof of a board shall, as fund fiduciaries,
discharge their duties with respect to
such pension and relief
funds solely in the interest of the members and members'
beneficiaries for the exclusive purpose of providing benefits to
members and their beneficiaries and defraying reasonable expenses
of administering the fund.
(c) The board of trustees of each fund shall deliver a copy
of the fund's current rules, regulations and procedures to the oversight board established by section eighteen-a of this article
on July 1, 2009, and thereafter within thirty days of any
approved change in the rules, regulations or procedures.
(d) Each member of a board of trustees shall attend training
in matters relating to trustee duties as may be required by the
oversight board pursuant to section eighteen-a of this article.
§8-22-18a. West Virginia Municipal Pensions Oversight Board
created.
(a)(1) There is established, effective July 1, 2009, the
West Virginia Municipal Pensions Oversight Board for the purpose
of monitoring and improving the performance of municipal
policemen's and firemen's pension and relief funds to assure
prudent administration, investment and management of the funds.
Management of the board shall be vested solely in the members of
the oversight board. Duties of the board shall include, but not
be limited to, assisting municipal boards of trustees in
performing their duties, assuring the funds' compliance with
applicable laws, providing for actuarial studies, distributing
tax revenues to the funds, initiating or joining legal actions on
behalf of active or retired pension fund members or municipal
boards of trustees to protect interests of the members in the
funds, and taking other actions as may be reasonably necessary to
provide for the security and fiscal integrity of the pension
funds. The oversight board's authority to initiate legal action
does not preempt the authority of municipalities, municipal
policemen's and firemen's boards of trustees or pension fund
active or retired members to initiate legal action to protect interests in the funds. The oversight board is created as a
public body corporate. Establishment of the oversight board does
not relieve the municipal funds' boards of trustees from their
fiduciary and other duties to the funds, nor does it create any
liability for the funds on the part of the state. Members and
employees of the oversight board are not liable personally,
either jointly or severally, for debts or obligations of the
municipal pension and relief funds. Members and employees of the
oversight board have a fiduciary duty toward the municipal
pension and relief funds and are liable for malfeasance or gross
negligence.
(2) The board shall consist of seven members who shall be
citizens of the state, shall be qualified electors thereof for a
period of at least one year next preceding their appointment and
shall be as follows: An active or retired member of a municipal
policemen's pension and relief fund chosen from a list of three
persons submitted to the Governor by the state's largest
professional municipal police officers organization, an active or
retired member of a municipal firemen's pension and relief fund
chosen from a list of three persons submitted to the Governor by
the state's largest professional firefighters organization, an
attorney experienced in finance and investment matters related to
pensions management, two persons experienced in pension funds
management, one person who is a certified public accountant
experienced in auditing and one person chosen from a list of
three persons submitted to the Governor by the state's largest
association of municipalities.
(3) Upon the effective date of the enactment of this section
during the 2009 regular legislative session, the Governor shall
forthwith appoint the members, with the advice and consent of the
Senate. The Governor may remove any voting member from the board
for neglect of duty, incompetency or official misconduct.
(b) The oversight board has the power to:
(1) Enter into contracts, to sue and be sued, to implead and
be impleaded;
(2) Promulgate and enforce bylaws and rules for the
management and conduct of its affairs;
(3) Maintain accounts and invest those funds which the
oversight board is charged with receiving and distributing;
(4) Make, amend and repeal bylaws, rules and procedures
consistent with the provisions of this article and article
thirty-three of this code;
(5) Not withstanding any other provision of law, retain or
employ, fix compensation, prescribe duties and pay expenses of
legal, accounting, financial, investment, management and other
staff, advisors or consultants as it considers necessary.
Expenses shall be paid from the moneys in the Municipal Pensions
Security Fund created in section eighteen-b of this article or
prior to the transition provided in section eighteen-b of this
article, the Municipal Pensions and Protection Fund; and
(6) Do all things necessary and appropriate to implement and
operate the board in performance of its duties.
(c) The terms of board members shall be staggered initially
from July 1, 2009. The Governor shall appoint initially one member for a term of one year, one member for a term of two
years, two members for terms of three years, one member for a
term of four years and two members for terms of five years.
Subsequent appointments shall be for terms of five years. A
member having served two full consecutive terms may not be
reappointed for one year after completion of his or her second
full term. Each member shall serve until that member's successor
is appointed and qualified, unless the board member is no longer
competently performing the duties of office. Any vacancy on the
board shall be filled by appointment by the Governor for the
balance of the unexpired term.
(d) A majority of the full authorized membership of the
board constitutes a quorum. The board shall meet at least six
times a year, but more often as duties require, at times and
places that it determines. The board shall elect a chair person
and a vice chairperson from their membership who shall serve for
terms of two years and shall select annually a
secretary/treasurer who may be either a member or employee of the
board. The board shall employ an executive director and other
staff as needed and shall fix their duties and compensation. The
board shall pay all personnel and other board expenses out of the
Municipal Pensions Security Fund created in section eighteen-b of
this article. Expenses during the initial year of the board's
operation shall be from proceeds of the Municipal Pensions
Security Fund. Expenditures in years thereafter shall be by
appropriation from the Municipal Pensions Security Fund. The
board is exempt from the provisions of sections seven and eleven, article three of chapter twelve of this code relating to
compensation and expenses of members, including travel expenses,
and is exempt from the provisions of article three, chapter
five-a of this code relating to the Purchasing Division of the
Department of Administration. The members and employees of the
board are subject to purchasing policies and procedures which
proposed for promulgation as legislative rules by the board:
Provided, That the board shall award contracts on a competitive
basis. The purchasing policies and procedures may initially be
promulgated as emergency rules pursuant to section fifteen,
article three, chapter twenty-nine-a of this code.
(e) Each member of the board shall receive the same
compensation as is paid to members of the Legislature for their
interim duties for each day or portion thereof engaged in the
discharge of official duties: Provided, That the representative
of the municipalities shall not receive compensation for service
on the board if the representative is a salaried employee of a
municipality or the state's largest association of municipalities
and receives salary while attending meetings of the oversight
board. Each member of the board is entitled to reasonable
reimbursement of travel and other necessary expenses actually
incurred while engaging in board activities. All reimbursement
of expenses shall be paid out of the Municipal Pensions Security
Fund.
(f) The board may contract with other state boards or state
agencies to share offices, personnel and other administrative
functions as authorized under this article.
(g) The board shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code as necessary to implement the
provisions of this article, and may initially promulgate
emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code.
(h) The oversight board shall report annually to the
Legislature's Joint Committee on Government and Finance and the
Joint Committee on Pensions and Retirement concerning the status
of municipal policemen's and firemen's pension and relief funds
and shall present recommendations for strengthening and
protecting the funds and the benefit interests of the funds'
members.
(i) The oversight board shall cooperate with the West
Virginia Investment Management Board and the Board of Treasury
Investments to educate members of the local pension boards of
trustees on the services offered by the two state investment
boards. No later than October 31, 2012, the board shall report
to the Joint Committee on Government and Finance and the Joint
Committee on Pensions and Retirement a detailed comparison of
returns on long-term investments of moneys held by or allocated
to municipal pension and relief funds managed by the West
Virginia Management Board and those managed by others than the
Investment Management Board. The oversight board shall also
report at that time on short-term investment returns by local
pension boards using the West Virginia Board of Treasury
Investments compared to short-term investment returns by those local boards of trustees not using the Board of Treasury
Investments.
(j) The oversight board shall establish minimum requirements
for training to be completed by each member of the board of
trustees of a municipal policemen's or firemen's pension and
relief fund. The requirements should include, but not be limited
to, training in ethics, fiduciary duty and investment
responsibilities.
§8-22-18b. Creation of Municipal Pensions Security Fund;
transfer of certain powers, duties and functions
of Treasurer's Office to Municipal Pensions
Oversight Board.
(a) The Legislature finds that an important part of
oversight of municipal policemen's and firemen's pension and
relief funds is monitoring the performance required of the
various funds to qualify to receive distribution of insurance
premium tax revenues provided by section fourteen-e, article
three, chapter thirty-three of this code. The duties and
functions of the State Treasurer's office with respect to such
monitoring as well as such distribution is transferred from the
State Treasurer's office to the West Virginia Municipal Pensions
Oversight Board effective July 1, 2009: Provided, That until the
oversight board is fully organized and operating, some duties and
functions being performed by the State Treasurer's office prior
to July 1, 2009, may be continued by that office temporarily as
necessary to effect an orderly transition of responsibilities and
provide for prompt distribution of the insurance premium tax proceeds to the municipal policemen's and firemen's pension and
relief funds.
(b) There is hereby created in the State Treasury a
nonexpiring special revenue fund designated the West Virginia
Municipal Pensions Security Fund which shall be administered by
the West Virginia Municipal Pensions Oversight Board solely for
the purposes as provided in this article and article three,
chapter thirty-three of this code. All earnings shall accrue to
and be retained by the fund.
(c) Until such time as the oversight board advises the
Insurance Commissioner and the State Treasurer in writing that
the oversight board is prepared to receive into and distribute
from the West Virginia Municipal Pensions Security Fund premium
tax revenues as provided in section fourteen-e, article three,
chapter thirty-three of this code, the commissioner shall
continue to transfer the funds into the Municipal Pensions and
Protection Fund and the State Treasurer shall continue to
disburse funds to the qualifying municipal pension and relief
funds, and shall disburse funds as necessary for the
establishment and early operation of the oversight board. The
Insurance Commissioner, the State Treasurer and oversight board
shall share information freely as required for efficient transfer
of powers and duties related to the premium tax revenues to be
allocated to the municipal policemen's and firemen's pension and
relief funds. When the oversight board assumes full
responsibility to receive funds into and disburse funds from the
Municipal Pensions and Security Fund, the State Treasurer shall transfer to it all funds remaining in the Municipal Pensions and
Protection Fund and close the Municipal Pensions and Protection
Fund.
§8-22-19. Levy to maintain fund.
(a)(1) The provisions of this subsection shall remain in
effect through the thirtieth day of June, one thousand nine
hundred eighty-three.
(2) In every municipality in which there is a policemen's
pension and relief fund or a firemen's pension and relief fund,
or both, the same shall be maintained as follows: The governing
body of the municipality shall levy annually and in the manner
provided by law for other municipal levies, and include within
the maximum levy or levies permitted by law, and if necessary in
excess of any charter provision, a tax at such rate as will,
after crediting the amount of the contributions received during
such year from the members of the respective paid police
department or paid fire department, provide funds equal to the
sum of: (1) The full amount of estimated expenditures of the
boards of trustees of the respective funds; and (2) an additional
amount equal to ten percent of the estimated expenditures, said
ten percent amount to be taken, accumulated and invested, if
possible, as surplus reserve: Provided, That in no event shall
the levy for each of the respective boards of trustees be less
than one cent nor more than eight cents on each one hundred
dollars of all real and personal property as listed for taxation
in the municipality: Provided, however, That in the event that
the funds derived above are not sufficient to meet the annual expenditures and the surplus reserve funds for any fiscal year do
not contain a sufficient balance to maintain full retirement
benefits for that fiscal year, the municipality shall for only
that fiscal year levy an amount not to exceed an additional two
cents on each one hundred dollars of all real and personal
property listed for taxation in such municipality: Provided
further, That in the event that a municipality is required to
levy an amount for any fiscal year in excess of eight cents on
each one hundred dollars of all real and personal property as
provided above, the municipality shall assess and collect for
only that fiscal year from each member an additional amount of
one percent of the actual salary or compensation for each one
cent that the municipality has levied in excess of the eight
cents which shall become a required part of the pension and
relief fund to which the member belongs.
(3) The levies authorized under the provisions of this
section, or any part of them, may by the governing body be laid
in addition to all other municipal levies, and to that extent,
beyond the limit of levy imposed by the charter of the
municipality; and the levies shall supersede and if necessary
exclude levies for other purposes if priority or exclusion is
necessary under limitations upon taxes or tax levies imposed by
law.
(4) The public corporations are authorized to take by gift,
grant, devise or bequest, any money or real or personal property,
upon such terms as to the investment and expenditures thereof as
may be fixed by the grantor or determined by the trustees.
(5) In addition to all other sums provided for pensions in
this section, it shall be the duty of every municipality in which
any policemen's pension and relief fund or firemen's pension and
relief fund or funds have been or shall be established to assess
and collect from each member of the paid police department or
paid fire department or both each month, the sum of six percent
of the actual salary or compensation of the member; and the
amount so collected shall become a regular part of the
policemen's pension and relief fund, if collected from a
policeman, and of the firemen's pension and relief fund, if
collected from a fireman.
(a) (1) (b) After the thirtieth day of June, one thousand
nine hundred eighty-three: In order for a municipal policemen's
or firemen's pension and relief fund to receive the allocable
portion of moneys from the municipal pensions and protection fund
established in section fourteen-e, article three, chapter
thirty-three of this code
and funds from the Municipal Pensions
Security Fund created in section eighteen-b of this article, the
governing body of the municipality shall levy annually and in the
manner provided by law for other municipal levies and include
within the maximum levy or levies permitted by law and, if
necessary, in excess of any charter provision, a tax at such rate
as will, after crediting: (A) The amount of the contributions
received during the year from the members of the respective paid
police department or paid fire department; and (B) the allocable
portion of the municipal pensions and protection fund established
in section fourteen-d, article three, chapter thirty-three of this code
and funds from the Municipal Pensions Security Fund
created in section eighteen-b of this article, provide funds
equal to the amount necessary to meet the minimum standards for
actuarial soundness annual municipality contributions to the fund
as provided in section twenty of this article.
The said amount
to shall be irrevocably contributed, accumulated and invested as
fund assets described in sections twenty-one and twenty-two of
this article.
One twelfth of the municipality each
municipality's annual contributions shall be deposited
with the
municipality's pension trust funds as fund assets on at least a
quarterly monthly basis and any revenues received from any source
by a municipality which are specifically collected for the
purpose of allocation for deposit into the policemen's pension
and relief fund or firemen's pension and relief fund shall be so
deposited within
thirty five days of receipt by the municipality.
Heretofore surplus reserves accumulated before the
first day of
July, one thousand nine hundred eighty-three, effective date of
this section shall be irrevocably contributed, aggregated and
invested as fund assets described in sections twenty-one and
twenty-two of this article. Any actuarial deficiency arising
under this section and section twenty of this article shall not
be the obligation of the State of West Virginia.
(2) The levies authorized under the provisions of this
section, or any part of them, may by the governing body be laid
in addition to all other municipal levies and, to that extent,
beyond the limit of levy imposed by the charter of the
municipality; and the levies shall supersede and if necessary exclude levies for other purposes, where other purposes have not
already attained priority, and within the limitations upon taxes
or tax levies imposed by the Constitution and laws.
(3)(b) The public corporations are authorized to take by
gift, grant, devise or bequest any money or real or personal
property upon such terms as to the investment and expenditures
thereof as may be fixed by the grantor or determined by the
trustees.
(4)(c) Notwithstanding provisions in section six of this
article, in addition to all other sums provided for pensions in
this section, it is the duty of every municipality in which any
fund or funds have been or shall be established to assess and
collect from each member of the paid police department or paid
fire department or both each month, the sum of seven percent of
the actual salary or compensation of such member; and the amount
so collected shall become a regular part of the policemen's
pension and relief fund, if collected from a policeman, and of
the firemen's pension and relief fund, if collected from a
fireman:
Provided, That for police officers and firefighters
hired after July 1, 2009, the municipality shall assess and
collect nine and one-half percent of the actual salary or
compensation. For police officers and firefighters hired on or
before July 1, 2009, each municipality shall, in accordance with
subsection (f), section twenty-six-a of this article, collect and
pay to the member's pension and relief fund member contributions
of eight and one-half percent of salary or compensation. Only
those funds for which the board of trustees has collected and paid the contributions as herein provided and as provided in
subsection (f), section twenty-six-a of this article and meeting
minimum standards for annual municipal contributions to the fund
shall be eligible to receive moneys from the insurance policy
premium tax revenues as provided in section fourteen-e, article
three, chapter thirty-three of this code. Provided, That the
board of trustees for each pension and relief fund may assess and
collect from each member of the paid police department or paid
fire department or both each month not more than an additional
two and one half percent of the actual salary or compensation of
each member: Provided, however, That if any board of trustees
decides to assess and collect any additional amount pursuant to
this subdivision above the member contribution required by this
section, then that board of trustees may not reduce the
additional amount until the respective pension and relief fund no
longer has any actuarial deficiency: Provided further, That if
any board of trustees decides to assess and collect any
additional amount, any board of trustees decision and any
additional amount is not the liability of the State of West
Virginia. Member contributions shall be deposited in the pension
and relief fund
on at least a monthly basis within five days of
being collected.
(5)(d)(1) For the fiscal year beginning on July 1,
one
thousand nine hundred eighty-three 2009, and subject to
provisions of subsection (c), section eighteen-b of this article
and section fourteen-e, article three, chapter thirty-three of
this code and for each fiscal year thereafter, the
State Treasurer oversight board shall
receive and retain the
allocable
portion of the Municipal Pensions and Protection Fund,
established in section fourteen-d, article three, chapter
thirty-three of this code, moneys allocated to the Municipal
Pensions Security Fund until such time as the treasurer of the
municipality applies for the allocable portion and certifies in
writing to the
State Auditor Municipal Pensions Oversight Board
that:
(A) The municipality has irrevocably contributed the amount
required under this section and section twenty of this article
and section fourteen-e, article three, chapter thirty-three of
this code to the pension and relief fund for the
fiscal year
required period; and
(B) The board of trustees of the pension and relief fund has
made a report to the governing body of the municipality
and to
the oversight board on the condition of its fund with respect to
the fiscal year.
(6)(2) When the aforementioned application and certification
are made, the allocable portion of moneys from the Municipal
Pensions and Protection Fund,
or the Municipal Pensions Security
Fund once established shall be paid to the corresponding
policemen's or firemen's pension and relief fund:
Provided, That
proceeds from the insurance policy premium taxes authorized by
section fourteen-e, article three, chapter thirty-three of this
code shall be paid in accordance with provisions in that section.
Payment to a municipal pension and relief fund shall be made by
electronic funds transfer.
(7) (e) The State Auditor
and the oversight board has have
the power and duty
as each deems necessary to perform or review
audits on the pension and relief funds or to employ an
independent consulting actuary or accountant to determine the
compliance of the aforementioned certification with the
requirements of this section and section twenty of this article.
The expense of the audit or determination shall be paid from the
portion of the municipal pensions and protection fund allocable
to municipal policemen's and firemen's pension and relief funds
or from the Municipal Pensions Security Fund pursuant to
provisions of subsection (c), section eighteen-b of this article.
If the allocable portion of the Municipal Pensions and Protection
Fund
or the Municipal Pensions Security Fund is not paid to the
pension and relief fund within
thirty-six eighteen months, the
portion is forfeited by the pension and relief fund and is
allocable to other eligible municipal policemen's and firemen's
pension and relief funds in accordance with section fourteen-e,
article three, chapter thirty-three of this code.
§8-22-20. State contract actuary; actuarial valuation report;
minimum standards for annual municipality
contributions to the fund; definitions; actuarial
review and audit.
The board of trustees for each pension and relief fund shall
have regularly scheduled actuarial valuation reports prepared by
a qualified actuary. All of the following standards must be met:
(a)
An actuarial valuation report shall be prepared at least
once every three years commencing with the later of: (1) The first day of July, one thousand nine hundred eighty-three; or (2)
three years following the most recently prepared actuarial
valuation report: Provided, That this most recently prepared
actuarial valuation report meets all of the standards of this
section. The oversight board shall contract with a qualified
actuary to annually prepare an actuarial valuation report on each
pension and relief fund. The oversight board's first contract
shall be timed to begin at the expiration of the State
Treasurer's contract with the actuary for the year 2009, but
beginning no later than January 1, 2010. The expense of the
actuarial report shall be paid from moneys in the Municipal
Pensions Security Fund. Uses of the actuarial valuations from
the state's contract actuary shall include, but not be limited
to, determining a municipal policemen's or firemen's pension and
relief fund's eligibility to receive state money and to provide
supplemental benefits.
(b) The actuarial valuation report
provided pursuant to
subsection (a) of this section shall consist of, but is not
limited to, the following disclosures: (1) The financial
objective of the fund and how the objective is to be attained;
(2) the progress being made toward realization of the financial
objective; (3) recent changes in the nature of the fund, benefits
provided or actuarial assumptions or methods; (4) the frequency
of actuarial valuation reports and the date of the most recent
actuarial valuation report; (5) the method used to value fund
assets; (6) the extent to which the qualified actuary relies on
the data provided and whether the data was certified by the fund's auditor or examined by the qualified actuary for
reasonableness; (7) a description and explanation of the
actuarial assumptions and methods; and (8) any other information
the qualified actuary feels is necessary or would be useful in
fully and fairly disclosing the actuarial condition of the fund.
(c)(1) After June 30,
one thousand nine hundred ninety-one
2009, and thereafter,
the financial objective of each
municipality, and the minimum standard for annual municipality
contributions to the fund, except as provided in section
fourteen-e, article three, chapter thirty-three of this code
relating to plans funded at one hundred ten percent or more,
shall
not be
less than to contribute to the fund annually an
amount which, together with the contributions from the members
and the allocable portion of the Municipal Pensions and
Protection Fund for municipal pension and relief funds
established under section fourteen-d, article three, chapter
thirty-three of this code
or a municipality's allocation from the
Municipal Pensions Security Fund created in section eighteen-b of
this article and other income sources as authorized by law will
be sufficient
for the municipal pension and relief fund to attain
a projected targeted funded ratio of one hundred percent by June
30, 2049. For this purpose, the targeted funded ratio is defined
as the projected market value of assets as of June 30, 2049,
divided by the projected actuarial accrued liabilities as of June
30, 2049, based on the entry age normal cost method (level
percent of pay), assuming the actuarial assumptions will be
realized in the future and the number of active members remains level in the future, except to the extent the municipal pension
and relief fund is closed to new entrants. In making these
determinations, the required contribution shall be calculated
each year as a level percentage of payroll over the years
remaining, beginning with the plan year ending on June 30, 2010,
and including the plan year ending on June 30, 2049. The level
percentage of payroll contributions shall be determined by
projecting assets and liabilities on an open-group basis assuming
the actuarial assumptions are realized and the number of active
members remains at the level on the valuation date, except to the
extent the fund is closed to new entrants. For years ending on
June 30 in years 2009 through 2013, the required contribution, as
a percentage of the applicable payroll, may be increased in equal
annual increments, from the required rate of contribution for the
year ending on the June 30, 2009, so that by the year ending on
June 30, 2013, the municipality is making contributions at the
rate required under this section. If the actuarial valuation on
or after June 30, 2009, projects a contribution rate for years
2013 and beyond greater than forty-five percent, but less than
sixty percent to reach the one hundred percent targeted funded
ratio in 2049, the targeted funded ratio in year 2049 may be
changed from one hundred percent to ninety percent. If the
actuarial valuation on or after June 30, 2009, projects a
contribution rate for years 2013 and beyond of sixty percent or
more to reach the one hundred percent targeted funded ratio in
2049, the targeted funded ratio in 2049 may be changed from one
hundred percent to eighty percent. However, in no event shall the targeted funded ratio be less than the level determined in
the actuarial valuation as of June 30, 2009. The required
contribution shall be determined each plan year as described
above based on an actuarial valuation reflecting actual
demographic and investment experience. Municipal pension and
relief funds with a funded ratio of ten percent or less as of
June 30, 2009, will need to receive additional contributions from
the municipality to the extent necessary to ensure that
sufficient assets exist to pay expected benefits for a period of
at least eighteen months during each of the next six plan years
beginning with the plan year ending on the June 30, 2010. The
funded ratio as of June 30, 2009, is defined as the market value
of assets as of the thirtieth day of June, divided by the
actuarial accrued liabilities as of the thirtieth day of June,
based on the entry age normal cost method (level percent of pay).
After June 30, 2049, and thereafter, the financial objective of
each municipality, and the minimum standards for annual
municipality contributions to the municipal pension and relief
fund, except as provided in section fourteen (d), article three,
chapter thirty-three of this code relating to plans funded at one
hundred ten percent or more, shall not be less than an amount
which, together with the contributions from the members and the
allocable portion of the Municipal Pensions and Protection Fund
for municipal pension and relief funds established under section
fourteen-d, article three, chapter thirty-three of this code or
a municipality's allocation from the Municipal Pensions Security
Fund created in section eighteen-b of this article and other income sources as authorized by law will be sufficient to meet
the normal cost of the fund and amortize any actuarial deficiency
over a period of not more than
forty thirty years.
The
thirty-year amortization period shall commence in the first year
following 2049 in which there is an actuarial deficiency as of
the first day of July in that year. In no year will the
municipal contribution be less than the normal cost net of
employee contributions, except as provided in section fourteen-e,
article three, chapter thirty-three of this code relating to
plans funded at one hundred ten percent or more. Provided, That
in the fiscal year ending the thirtieth day of June, one thousand
nine hundred ninety-one, the municipality may elect to make its
annual contribution to the fund using an alternative contribution
in an amount not less than: (i) One hundred seven percent of the
amount contributed for the fiscal year ending the thirtieth day
of June, one thousand nine hundred ninety; or (ii) an amount
equal to the average of the contribution payments made in the
five highest fiscal years beginning with the fiscal year ending
one thousand nine hundred eighty-four, whichever is greater:
Provided, however, That contribution payments in subsequent
fiscal years under this alternative contribution method may not
be less than one hundred seven percent of the amount contributed
in the prior fiscal year: Provided further, That in order to
avoid penalizing municipalities and to provide flexibility when
making contributions, municipalities using the alternative
contribution method may exclude a one-time additional
contribution made in any one year in excess of the minimum required by this section: And provided further, That the
governing body of any municipality may elect to provide an
employer continuing contribution of one percent more than the
municipality's required minimum under the alternative
contribution plan authorized in this subsection: And provided
further, That if any municipality decides to contribute an
additional one percent, then that municipality may not reduce the
additional contribution until the respective pension and relief
fund no longer has any actuarial deficiency: And provided
further, That any decision and any contribution payment by the
municipality is not the liability of the State of West Virginia:
And provided further, That if any municipality or any pension
fund board of trustees makes a voluntary election and thereafter
fails to contribute the voluntarily increase as provided in this
section and in subdivision (4), subsection (b), section nineteen
of this article, then the board of trustees is not eligible to
receive funds allocated under section fourteen-d, article three,
chapter thirty-three of this code: And provided further, That
prior to using this alternative contribution method the actuary
of the fund shall certify in writing that the fund is projected
to be solvent under the alternative contribution method for the
next consecutive fifteen-year period. For purposes of
determining this minimum financial objective: (i) The value of
the fund's assets shall be determined on the basis of any
reasonable actuarial method of valuation which takes into account
fair market value; and (ii) all costs, deficiencies, rate of
interest and other factors under the fund shall be determined on the basis of actuarial assumptions and methods which, in
aggregate, are reasonable (taking into account the experience of
the fund and reasonable expectations) and which, in combination,
offer the qualified actuary's best estimate of anticipated
experience under the fund: And provided further, That any
municipality which elected the alternative funding method under
this section and which has an unfunded actuarial liability of not
more than twenty-five percent of fund assets, may, beginning the
first day of September, two thousand three, elect to revert to
the standard funding method, which is to contribute to the fund
annually an amount which is not less than an amount which,
together with the contributions from the members and the
allocable portion of the Municipal Pensions and Protection Fund
for municipal pension and relief funds established under section
fourteen-d, article three, chapter thirty-three of this code and
other income sources as authorized by law, will be sufficient to
meet the normal cost of the fund and amortize any actuarial
deficiency over a period of not more than forty years, beginning
from the first day of July, one thousand nine hundred ninety-one.
(2) For purpose of this section, the term "normal cost" and
"actuarial accrued liability" shall be consistent with the
Actuarial Standards of Practice published by the Actuarial
Standards Board. Furthermore, the normal cost and actuarial
accrued liability shall be based on the Entry Age Normal
Actuarial Cost Method under which the actuarial present value of
projected benefits is allocated as a level percentage of earnings
of the individual between entry age and the assumed exit ages.
(3) The actuarial assumptions used to develop the normal
cost and actuarial accrued liability shall be consistent with the
Actuarial Standards of Practice published by the Actuarial
Standards Board.
(4) The term actuarial deficiency means the actuarial
accrued liability less the actuarial value of assets. The
actuarial value of assets shall be determined in a manner
consistent with the Actuarial Standards of Practice published by
the Actuarial Standards Board.
(5) For years after 2049, the amortization of the actuarial
deficiency shall be based on a level dollar basis.
(6) The actuarial process, which includes the selection of
methods and assumptions, shall be reviewed by the qualified
actuary no less than once every five years. Furthermore, the
qualified actuary shall provide a report to the oversight board
with recommendations on any changes to the actuarial process.
(7) The oversight board shall hire an independent reviewing
actuary to perform an actuarial audit of the work performed by
the qualified actuary no less than once every seven years.
(2) No municipality may anticipate or use in any manner any
state funds accruing to the police or firemen's pension fund to
offset the minimum required funding amount for any fiscal year.
(3) Notwithstanding any other provision of this section or
article to the contrary, each municipality shall contribute
annually to the fund an amount which may not be less than the
normal cost, as determined by the actuarial report.
(d) For purposes of this section the term "qualified actuary" means only an actuary who is a member of the Society of
Actuaries or the American Academy of Actuaries. The qualified
actuary shall be designated a fiduciary and shall discharge his
or her duties with respect to a fund solely in the interest of
the members and member's beneficiaries of that fund. In order
for the standards of this section to be met, the qualified
actuary shall certify that the actuarial valuation report is
complete and accurate and that in his or her opinion the
technique and assumptions used are reasonable and meet the
requirements of this section of this article.
(e) The cost of the preparation of the actuarial valuation
report shall be paid by the fund.
(f) Notwithstanding any other provision of this section, for
the fiscal year ending the thirtieth day of June, one thousand
nine hundred ninety-one, the municipality may calculate its
annual contribution based upon the provisions of the supplemental
benefit provided in this article enacted during the one thousand
nine hundred ninety-one regular session of the Legislature.
§8-22-20a. Hiring of actuary; preparation of actuarial
valuations.
(a)(1) The Legislature finds that it is in the best
interests of the state and its municipalities to have accurate
data regarding the various municipal police and firemen's pension
and relief funds.
The Legislature finds that data received from
the funds is not always reliable due to inconsistent methods of
reporting. The Legislature also finds that the municipalities
need to know if the data on which they are basing their decisions on regarding pensions for their police and firemen is accurate
and that they can depend on it.
(2) The Legislature finds that the State Treasurer should
contract with an actuary as a consultant for the municipal police
and firemen's pension and relief funds and
that among other
duties the actuary
should shall determine if there is consistent
reporting from the various funds. The Legislature further finds
that the State Treasurer should share the results of the
actuary's annual valuation with the appropriate municipality.
(b)
Notwithstanding any other provision of this code to the
contrary Except as hereinafter provided, beginning the first day
of July, two thousand two, the State Treasurer shall select by
competitive bid and contract with a single qualified actuary.
The actuary shall serve as a consultant to the treasurer with
regard to the operation of the municipal police and firemen's
pension and relief funds and shall report annually to the
treasurer with regard to all funds existing in this state by
virtue of this article.
The treasurer may pay for Costs
associated with the actuary's work
shall be paid out of the
fund
Municipal Pensions and Protection Fund established pursuant to
section fourteen-d, article three, chapter thirty-three of this
code.
Beginning at the expiration of the State Treasurer's
contract with the actuary for the year 2009, but beginning no
later than January 1, 2010, and thereafter, it shall be the duty
of the oversight board to contract for the single qualified
actuary which shall serve as a consultant to the oversight board
and shall report annually to the oversight board with regard to all funds existing in this state by virtue of this article and
which shall be paid from moneys deposited in the municipal
pensions security fund. Copies of the annual report prepared by
the actuary shall be sent to Joint Committee on Government and
Finance, the chair of the House of Delegates Committee on
Pensions and Retirement, and the chair of the Senate Committee on
Pensions. Each municipal pension and relief fund shall receive
a copy of the actuary's results related to that fund.
(c) With respect to each municipal police or firemen's
pension and relief fund, the actuary shall complete an annual
valuation in accordance with actuarial standards of practice
promulgated by the actuarial standards board of the American
Academy of Actuaries. The report of the valuation shall include:
(1) A summary of the benefit provisions evaluated; (2) a summary
of the census data and financial information used in the
valuation; (3) a description of the actuarial assumptions,
actuarial costs method and asset valuation method used in the
valuation, including a statement of the assumed rate of payroll
growth and assumed rate of growth or decline in the number of the
fund members' contribution to the pension fund; (4) a summary of
findings that includes a statement of the actuarially accrued
pension liabilities and unfunded actuarial accrued pension
liabilities; (5) a schedule showing the effect of any changes in
the benefit provisions, actuarial assumptions or cost methods
since the last annual actuarial valuation; (6) a statement of
whether contributions to the pension fund are in accordance with
the provisions of this chapter and whether they are expected to be sufficient; and (7) any other matters determined by the
Treasurer
or, following January 1, 2010, the oversight board, to
be necessary or appropriate.
The treasurer shall forward A copy
of the annual valuation
shall be forwarded to the municipality
for which it was completed.
(d)(1) The hiring of an actuary under the provisions of this
section shall not be construed to make the municipal police and
firemen's pension and relief funds the responsibility or
obligation of the State of West Virginia.
(2) Any actuarial deficiency identified by the actuary under
this section or this article is not an obligation of the State of
West Virginia.
§8-22-22. Investment of funds
by boards of trustees; exercise
of judgment discretion in making investments;
report of investment plan.
(a) The board of trustees may invest a portion or all of the
fund assets in
the state consolidated fund or the consolidated
pension fund any of the pools, funds and securities managed by
the West Virginia Investment Management Board or West Virginia
Board of Treasury Investments or as otherwise provided in this
section. The board of trustees shall keep as an available sum
for the purpose of making regular retirement, disability
retirement, death benefit, payments and administrative expenses
in an estimated amount not to exceed payments for a period of
ninety days
in short-term investments. The board of trustees, in
acquiring, investing, reinvesting, exchanging, retaining, selling
and managing property for the benefit of the fund shall
exercise judgment and care under fiduciary duty which persons of prudence,
discretion, and intelligence exercise in the management of their
own affairs, not in regard to speculation, but in regard to the
permanent disposition of their funds, considering the probable
total return as well as the preservation of principal do so in
accordance with the provisions of the Uniform Prudent Investor
Act codified as article six-c, chapter forty-four of this code.
Within the limitations of the
foregoing standard Uniform Prudent
Investor Act, the board of trustees is authorized in its sole
discretion to invest and reinvest any funds received by it and
not invested
in the consolidated fund or the consolidated pension
fund with the West Virginia Investment Management Board or West
Virginia Board of Treasury Investments. in the following:
(a) Any direct obligation of, or obligation guaranteed as to
the payment of both principal and interest by, the United States
of America;
(b) Any evidence of indebtedness issued by any United States
government agency guaranteed as to the payment of both principal
and interest, directly or indirectly, by the United States of
America including, but not limited to, the following: Government
national mortgage association, federal land banks, federal
national mortgage association, federal home loan banks, federal
intermediate credit banks, banks for cooperatives, Tennessee
valley authority, United States postal service, farmers home
administration, export-import bank, federal financing bank,
federal home loan mortgage corporation, student loan marketing
association and federal farm credit banks;
(c) Readily marketable (i.e. traded on a national securities
exchange) debt securities having a Standard & Poor rating of A
(or equivalent to Moody's rating) or higher, excluding municipal
securities;
(d) Any evidence of indebtedness that is secured by a first
lien deed of trust or mortgage upon real property situated within
this state, if the payment thereof is substantially insured or
guaranteed by the United States of America or any agency thereof;
(e) Repurchase agreements issued by any bank, trust company,
national banking association or savings institutions which mature
in less than one year and are fully collateralized. No reverse
repurchase agreements shall be allowed;
(f) Interest bearing deposits including certificates of
deposit and passbook savings accounts that are FDIC insured;
(g) Equity. -- Common stocks, securities convertible into
common stocks, or warrants and rights to purchase such
securities: Provided, That each shall be listed on the NYSE, ASE
or are traded on the National OTC Market and listed on the NASDAQ
National Market.
(h) (b) The board of trustees of each fund may delegate
investment authority to equity mutual funds managers and/or
professional
registered investment advisors
who are registered
with the Securities and Exchange Commission,
in addition to being
registered in accordance with the Investment Advisors Act of
1940, and
registered with the appropriate state regulatory
agencies, if applicable,
and who
also manage assets in excess of
seventy-five million dollars.
(c) The board of trustees of each fund shall deliver to the
oversight board on or before September 30, 2009, a copy of the
pension and relief fund's investment policy. The board of
trustees shall submit to the oversight board any change to the
investment policy within thirty days of the board's authorizing
the change.
§8-22-22a. Restrictions on investments; disclosure of fees and
costs.
(a) Moneys invested as permitted by section twenty-two of
this article
and not invested with the West Virginia Investment
Management Board or the Board of Treasury Investments are subject
to the following restrictions and conditions contained in this
section:
(a) Fixed income securities shall at no time exceed ten
percent of the total assets of the pension fund, which are issued
by one issuer, other than the United States Government or
agencies thereof, whereas this limit shall not apply;
(b) At no time shall the equity portion of the portfolio
exceed sixty percent of the total portfolio. Furthermore, the
debit or equity securities of any one company or association
shall not exceed five percent with a maximum of fifteen percent
in any one industry;
(c) Notwithstanding any other provisions of this article,
any investments in equities under subsections (g) and (h),
section twenty-two of this article shall be subject to the
following additional guidelines:
(1) Equity mutual funds shall be no sales load (front or back) and no contingent deferred sales charges shall be allowed.
The total annual operating expense ratio shall not exceed one and
three-quarter percent for any mutual fund;
(2) The stated investment policy requires one hundred
percent of the equities of the portfolio be that of securities
which are listed on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market; and
(3) Equity mutual funds may be only of the following fund
description stated purpose: Growth funds, growth and income
funds, equity income funds, index funds, utilities funds,
balanced funds and flexible portfolio funds.
(1) The board shall hold in nonreal estate equity
investments no more than seventy-five percent of the assets
managed by the board and no more than seventy-five percent of the
assets of any individual participant plan.
(2) The board shall hold in real estate equity investments
no more than twenty-five percent of the assets managed by the
board and no more than twenty-five percent of the assets of any
individual participant plan: Provided, That the investment be
made only upon the recommendation by a professional, third-party
fiduciary investment adviser registered with the Securities and
Exchange Commission under the Investment Advisors Act of 1940, as
amended, upon the approval of the board or a committee designated
by the board, and upon the execution of the transaction by a
third-party investment manager: Provided, however, That the
board's ownership interest in any fund is less than forty percent
of the fund's assets at the time of purchase: Provided further, That the combined investment of institutional investors, other
public sector entities and educational institutions and their
endowments and foundations in the fund is in an amount equal to
or greater than fifty percent of the board's total investment in
the fund at the time of acquisition. For the purposes of this
subsection, "fund" means a real estate investment trust traded on
a major exchange of the United States of America or a
partnership, limited partnership, limited liability company or
other entity holding or investing in related or unrelated real
estate investments, at least three of which are unrelated and the
largest of which is not greater than forty percent of the
entity's holdings at the time of purchase.
(3) The board shall hold in international securities no more
than thirty percent of the assets managed by the board and no
more than thirty percent of the assets of any individual
participant plan.
(4) The board may not at the time of purchase hold more than
five percent of the assets managed by the board in the nonreal
estate equity securities of any single company or association:
Provided, That if a company or association has a market weighting
of greater than five percent in the Standard & Poor's 500 index
of companies, the board may hold securities of that nonreal
estate equity equal to its market weighting.
(5) No security may be purchased by the board unless the
type of security is on a list approved by the board. The board
may modify the securities list at any time, and shall review the
list annually.
(6) Notwithstanding the investment limitations set forth in
this section, it is recognized that the assets managed by the
board may temporarily exceed the investment limitations in this
section due to market appreciation, depreciation and rebalancing
limitations. Accordingly, the limitations on investments set
forth in this section shall not be considered to have been
violated if the board rebalances the assets it manages to comply
with the limitations set forth in this section at least once
every twelve months based upon the latest available market
information and any other reliable market data that the board
considers advisable to take into consideration, except for those
assets authorized by subdivision (2) of this subsection for which
compliance with the percentage limitations shall be measured at
such time as the investment is made.
(7) The board shall annually review, establish and modify,
if necessary, the board's investment objectives and investment
policy so as to provide for the financial security of the trust
funds giving consideration to the following:
(A) Preservation of capital;
(B) Diversification;
(C) Risk tolerance;
(D) Rate of return;
(E) Stability;
(F) Turnover;
(G) Liquidity; and
(H) Reasonable cost of fees.
(8) The board is expressly prohibited from investing in any class, style or strategy of alternative investments including a
private equity fund such as a venture capital, private real
estate or buy-out fund; commodities fund; distressed debt fund;
mezzanine debt fund; hedge fund; or fund consisting of any
combination of private equity, distressed or mezzanine debt,
hedge funds, private real estate, commodities and other types and
categories of investment permitted under this article.
(d) (b) The board of trustees of each fund shall obtain an
independent performance evaluation of the funds at least annually
and the evaluation shall consist of comparisons with other funds
having similar investment objectives for performance results with
appropriate market indices; and
(e) (c) Each entity conducting business for each pension
fund shall fully disclose all fees and costs of
transactions
investing conducted on a quarterly basis
to the trustees of the
fund and to the oversight board. Entities conducting business in
mutual funds for and on behalf of each pension fund shall timely
file revised prospectus and normal quarterly and annual
Securities Exchange Commission reporting documents with the board
of trustees of each pension fund.
§8-22-23a. Eligibility for total and temporary disability
pensions and total and permanent disability
pensions; reporting.
(a) All members applying for total and temporary or total
and permanent disability benefits after June 30, 1981, shall be
examined by at least two physicians under the direction of the
staff at Marshall University, West Virginia University, Morgantown or West Virginia University, Charleston:
Provided,
That if
such a member's medical condition cannot be agreed upon
by
the two
such physicians, a third physician shall examine
such
the member
: Provided, however, That beginning September 1, 2009,
and continuing thereafter, a member applying for total and
temporary or total and permanent disability benefits shall be
examined by two physicians, one to be chosen by the applying
member and paid by the board of trustees and the other to be
chosen and paid by the oversight board. If the two physicians
disagree, the oversight board shall select and pay for a third
examining physician. Such Each medical examination shall include
the review of
such the member's medical history,
but an examining
physician may not have access to the disability examination
report or disability recommendation of another physician. The
physicians shall send copies of their reports to both the board
of trustees of the member's pension and relief fund and the
oversight board. The expense of the member's transportation to
such medical
examination examinations and the expense of the
medical examination shall be paid by the board of trustees.
such
Medical expense shall not exceed the reasonable and customary
charges for
such similar services.
Beginning the July 1, 2009,
and thereafter, if a member is charged with an offense that has
the potential to lead to the member's termination, the member's
municipal pensions and relief fund board of trustees may not
consider the member's eligibility for disability benefits until
after investigation of the charge is completed and any
disciplinary decision is implemented. No later than January 1, 2010, and annually thereafter, each board of trustees shall
report to the oversight board the total number of disability
applications received during the prior fiscal year, the status of
each application as of the end of the fiscal year, total
applications granted and denied and the percentage of disability
benefit recipients to the total number of active members of the
fund.
(b) Effective for members becoming eligible for total and
temporary disability benefits after June 30, 1981, initially or
previously under this subsection allowance for initial or
additional total and temporary disability payments, the amount
thereof to be determined as specified in section twenty-four of
this article shall be paid to
such the member during
such the
disability for a period not exceeding twenty-six weeks if after
a medical examination in accordance with subsection (a) of this
section of this article two examining physicians report in
writing to the board of trustees that: (1)
such The member has
become so totally, physically or mentally disabled, from any
reason, as to render
such the member totally, physically or
mentally, incapacitated for employment as a police officer or
firefighter; and (2) it has not been determined if
such the
disability is permanent or it has been determined that
such the
disability may be alleviated or eliminated if
such the member
follows a reasonable medical treatment plan or reasonable medical
advice:
Provided, That, in any event, a member is not eligible
for total and temporary disability payments following the fourth
consecutive twenty-six week period of total and temporary disability unless
such subsequent disability results from a cause
unrelated to the cause of the four previous periods of total and
temporary disability. During
such the two-year period of
such
total and temporary disability,
such the department is required
to restore
such the member to his
or her former position in
such
the department at any time
he the member is determined to no
longer be disabled:
Provided, That the department may refill, on
a temporary basis, the position vacated by s
uch the member after
the first twenty-six weeks of his temporary disability.
(c) Effective for members becoming eligible for total and
permanent disability benefits initially under this subsection or
becoming eligible for total and temporary disability benefits
under subsection (b) of this section after the thirtieth day of
June, one thousand nine hundred eighty-one, allowance for total
and permanent disability payments, the amount thereof to be
determined as specified in section twenty-four of this article,
shall be paid to
such the member after a medical examination in
accordance with subsection (a) of this section, two examining
physicians report in writing to the board of trustees that
such
the member has become so totally, physically or mentally and
permanently disabled, as a proximate result of service rendered
in the performance of his
or her duties in
such the department,
as to render
such the member totally, physically or mentally and
permanently incapacitated for employment as a police officer or
firefighter or, if
such the member has been a member of either of
such the departments for a period of not less than five
consecutive years preceding
such the disability,
such the member has become so totally, physically or mentally and permanently
disabled, from any reason other than service rendered in the
performance of his
or her duties in
such the department, as to
render
such the member totally, physically or mentally and
permanently incapacitated for employment as a police officer or
firefighter. The phrase "totally, physically or mentally and
permanently disabled" shall not be construed to include a medical
condition which may be corrected if
such the member follows a
reasonable medical treatment plan or reasonable medical advice.
(d) Effective for members becoming eligible for total and
temporary disability benefits after the thirtieth day of June,
one thousand nine hundred eighty-one, under the provisions of
subsection (b) of this section, any payments for total and
temporary disability for a period during
such the disability not
exceeding twenty-six weeks shall cease at the end of
such the
26-week period under the following conditions:
(1)
Such The member fails to be examined as provided in
subsection (a) of this section; or (2)
such the member is
examined or reexamined as provided in subsection (a) and two
examining physicians report to the board of trustees that
such
the member's medical condition does not meet the requirements of
subsection (b) or (c) of this section. Effective for members
becoming eligible for total and temporary disability benefits
after the thirtieth day of June, one thousand nine hundred
eighty-one, under subsection (b) of this section, subsequent to
such the member's receipt of total and temporary disability
payments for a period of two years,
such the payments shall cease at the end of
such the two-year period under the following
conditions: (A)
Such The member fails to be examined as provided
in subsection (a) of this section of this article; or (B)
such
the member is examined or reexamined as provided in subsection
(a) and two examining physicians report to the board of trustees
that
such the member's medical condition does not meet the
requirements of subsection (c) of this section.
(e) Notwithstanding other provisions of this section to the
contrary, a member of a municipal policemen's or firemen's
pension and relief fund who is found to be disabled from
performing the full range of tasks relevant to police officer or
firefighter employment but capable of performing a restricted or
light-duty police officer or firefighter job made available at
the discretion of the employing municipality may choose to
continue working and retain an active membership in his or her
pension and relief fund.
§8-22-26a. Supplemental pension benefits entitlement; benefit
payable; application of section; construction;
solvency defined.
(a) Except as otherwise provided in this section, all
retirees, surviving beneficiaries, disability pensioners or
future retirees shall receive as a supplemental pension benefit
an annualized monthly amount commencing on the first day of July,
based on a percentage increase equal to any increase in the
CPI-U
consumer price index as calculated by the United States
Department of Labor, Bureau of Statistics, for the preceding
calendar year:
Provided, That the supplemental pension benefit specified herein shall not exceed four percent per year:
Provided, however, That no retiree shall be eligible for the
supplemental pension benefit specified herein until the first day
of July after the expiration of two years from the date of
retirement of
said the retiree:
Provided further, That persons
retiring prior to the effective date of this section shall
receive the supplemental benefit provided for in this section
immediately upon retirement and shall not be subject to the two
year delay: Provided further, That the supplemental benefit shall
only be calculated
only on the allowable amount, which is the
first fifteen thousand dollars of the total annual benefit paid,
in addition to accumulated supplemental pension benefits from
previous years. The supplemental benefit is calculated by
multiplying the appropriate percentage increase for the year by
a total which represents the original fifteen thousand dollars
and any supplemental amount previously awarded. If at any time
after the supplemental benefit becomes applicable, the total
accumulated percentage increase in benefit on the allowable
amount becomes less than seventy-five percent of the total
accumulated percentage increase in the consumer price index over
that same period of time, the four percent limitation shall be
inapplicable until such time as the supplemental benefit paid
equals seventy-five percent of the accumulated increase in the
consumer price index. The supplemental pension benefit payable
under the provisions of this section shall be paid in equal
monthly installments.
(b) Upon commencement of the payment of death benefits pursuant to section twenty-six of this article, there shall be
calculated on the allowable amount, which is the first fifteen
thousand dollars of the annual allowable benefit under said
section, the supplemental benefit provided for in subsection (a)
of this section using the date that the retirement benefit
provided for pursuant to section twenty-five of this article
began as the base year. The amount of the death benefit provided
pursuant to section twenty-six of this article shall be
calculated without regard to any supplemental benefit previously
paid under this section. After the initial calculation made
pursuant to this subsection the beneficiary of the benefits
provided
for pursuant to section twenty-six of this article
shall, after reindexation, thereafter receive the supplemental
benefit provided
for in subsection (a) of this section.
(c) Persons becoming disabled and eligible for a benefit
under subsection (d), section twenty-four of this article after
January 1, 1991, shall receive as an annualized monthly
supplemental benefit commencing on each July 1 an amount based on
a percentage increase equal to any increase in the consumer price
index as calculated by the United States Department of Labor,
Bureau of Statistics, for the preceding year:
Provided, That the
supplemental pension benefit shall not exceed four percent per
year:
Provided, however, That the benefit provided herein shall
not commence until the first day of July in the second year after
what would have been the earliest service retirement date
pursuant to section twenty-five of this article for the person
receiving the disability benefit:
Provided further, That for persons becoming eligible for a benefit under subsection (d),
article twenty-four of this section who were not employed in the
preceding year and file a copy of his or her income tax return by
the fifteenth
day of April each year, evidencing
said a lack of
employment, the benefit provided herein shall commence on the
first day of July in the second year after the date of
disablement:
And provided further, That the supplemental benefit
shall only be calculated on the allowable amount, which is the
first fifteen thousand dollars of the total annual benefit paid
in addition to accumulated supplemental pension benefits from
previous years. If at any time after the commencement of the
payment of the supplemental benefit provided under this
subsection the total accumulated percentage increase in benefit
on the allowable amount becomes less than seventy-five percent of
the total accumulated increase in the consumer price index for
that same period of time, the four percent limitation shall be
inapplicable until such time as the supplemental benefit paid
equals seventy-five percent of the accumulated increase in the
consumer price index.
(d) Persons receiving a disability pension pursuant to
section twenty-four of this article prior to January 1, 1991,
shall receive commencing each July 1, as an annualized monthly
supplemental benefit an amount based on a percentage increase
equal to any increase in the consumer price index as calculated
by the United States Department of Labor, Bureau of Statistics,
for the preceding year:
Provided, That the supplemental benefit
provided herein shall not exceed two percent per year:
Provided, however, That beginning the first day of July two years after
what would have been the earliest service retirement date
pursuant to section twenty-five of this article the supplemental
benefit provided herein shall not exceed four percent per year.
The amount of supplemental benefit provided in this subsection
shall not exceed four percent beginning the first day of July in
any twelve month period for any pensioner who files a certified
copy of his or her tax return evidencing that
said the pensioner
was unemployed in the preceding year and received no earned
income. The tax return shall be filed by the fifteenth
day of
April in
any such year the year following the year of
unemployment. If at any time after the first day of July in the
second year from what would have been the earliest service
retirement date pursuant to section twenty-five of this article
the total accumulated percentage increase in the supplemental
benefit provided pursuant to this subsection on the allowable
amount becomes less than the seventy-five percent of the total
accumulated percentage increase in the consumer price index over
that same period of time, the maximum percentage shall be
inapplicable until such time as the percentage increase in the
supplemental benefit paid equals seventy-five percent of the
accumulated increase in the consumer price index. The
supplemental benefit provided in this subsection shall
only be
calculated on the allowable amount
only, which is the first
fifteen thousand dollars of the annual benefit paid
in addition
to accumulated supplemental pension benefits from previous years.
(e) Any supplemental benefits paid during a period of nonentitlement may be withheld out of subsequent regular monthly
pension benefits.
(f)
During the fiscal year ending on the thirtieth day of
June, one thousand nine hundred ninety-six and each year
thereafter, Each municipal policemen's and firemen's pension fund
shall be reviewed
annually by a qualified actuary
as provided in
section twenty of this article, who shall make a determination as
to its
actuarial soundness solvency. Based upon the actuary's
determination of the
actuarial soundness solvency of the fund,
the actuary shall certify to the board of trustees of the fund
the amount of increase in supplemental benefits, if any, which
may be paid, and which will preserve the
minimum standards for
actuarial soundness solvency of the fund
as set forth in section
twenty of this article.
For purposes of this section, a fund
shall be considered solvent for a fiscal year if assets are
sufficient to pay expected benefit payments for at least the next
eighteen months after the increase in supplemental benefits. The
board of trustees shall increase supplemental benefits by an
amount which is equal to the actuary's certified recommendation,
up to the four-percent limit contained in this section or the
increase in the consumer price index, whichever is less,
if the
plan is solvent and municipality contributions under subsection
(c), section twenty of this article are fully paid to date. If
the actuary determines that
it is necessary to preserve the
actuarial soundness of the fund the funded ratio of a policemen's
or firemen's fund is less than eighty percent, the board of
trustees of the fund shall
forthwith increase the percentage of the members' contribution
from seven percent to the amount
certified by the actuary not to exceed eight to nine and one-half
percent, but only for so long as is necessary to achieve the
minimum standards for actuarial soundness required by section
twenty of this article funded ratio of one hundred percent. In
any year in which there is no supplemental benefit paid,
such the
year shall not be included in the reindexation calculation
provided pursuant to this section.
(g) This section shall be construed liberally to effectuate
the purpose of establishing minimum pension benefits under this
article for members and surviving spouses.
§8-22-27. General provisions concerning disability pensions,
retirement pensions and death benefits.
(a) In determining the years of service of a member in a
paid police or fire department for the purpose of ascertaining
certain disability pension benefits, all retirement pension
benefits and certain death benefits, the following provisions
shall be applicable:
(1) Absence from the service because of sickness or injury
for a period of two years or less shall not be construed as time
out of service; and
(2) Any member of any paid police or fire department covered
by the provisions of sections sixteen through twenty-eight of
this article who has been
required to or shall at any future time
be required to enter the Armed Forces of the United States by
conscription, by reason of being a member of some reserve unit of
the Armed Forces or a member of the West Virginia National Guard or air National Guard, whose reserve unit or guard unit is called
into active duty for one year or more, or who enlists in one of
or will be on qualified military service in the armed forces of
the United States,
and who upon receipt of has an honorable
discharge from
such the armed forces, presents himself
or herself
for resumption of duty to his
or her appointing municipal
official within six months from his date of discharge and is
accepted by
the pension board's board of medical examiners
medical examiners appointed by the oversight board as being
mentally and physically capable of performing
his the required
duties as a member of
such the paid police or fire department,
shall be given credit for continuous service in
said the paid
police or fire department
and his the member's rights shall be
governed as herein provided.
The six-month period in which a
member has to resume employment and receive credit for continuous
service is extended to a period not to exceed two years if the
member has been hospitalized for, or convalescing from, an
illness or injury incurred in, or aggravated during, qualified
military service. No member of a paid police or fire department
shall be required to pay the monthly assessment, as now required
by law, during
his a period of
qualified military service
in the
Armed Forces of the United States. However, a member who desires
to make up member assessments, in whole or in part, has five
years from the date of return to work, but shall not be required
to pay any interest or other charges for the assessments being
made up. The employer must pay the employer contributions for
the periods made up by the member within ninety days of each payment, or within ninety days of the normal due date. A member
who resumes duty with a paid police or fire department after
qualified military service is entitled to accrued benefits only
to the extent that the member made up the member assessments.
(b) As to any former member of a paid police or fire
department receiving disability pension benefits or retirement
pension benefits from a policemen's or firemen's pension and
relief fund, on July 1, 1985, the following provisions shall
govern and control the amount of
such the pension benefits:
(1) A former member who on June 30, 1962, was receiving
disability pension benefits or retirement pension benefits from
a policemen's or firemen's pension and relief fund, shall
continue to receive pension benefits, but on and after July 1,
1985,
such the pension benefits shall be no less than the amount
of five hundred dollars per month; and
(2) A former member who became entitled to disability
pension benefits or retirement pension benefits on or after July
1, 1962, shall continue to receive pension benefits, but on and
after July 1, 1985, shall receive the disability pension
benefits, or retirement pension benefits provided for in section
twenty-four or section twenty-five of this article, as the case
may be.
(c) As to any surviving spouse, dependent child or children,
or dependent father or mother, or dependent brothers or sisters,
of any former member of a paid police or fire department,
receiving any death benefits from a policemen's pension and
relief fund or firemen's pension and relief fund, on July 1, 1985, the following provisions shall govern and control the
amount of such death benefits:
(1) A surviving spouse, dependent child or children or
dependent father or mother, or dependent brothers or sisters, of
any former member, who on June 30, 1962, was receiving any death
benefits from a policemen's pension and relief fund or firemen's
pension and relief fund, shall continue to receive death
benefits, but on and after July 1, 1985, such death benefits
shall be no less than the following amounts: To a surviving
spouse, until death or remarriage, the sum of three hundred
dollars per month, to each dependent child the sum of thirty
dollars per month, until such child shall attain the age of
eighteen years or marries, whichever first occurs; to each
dependent orphaned child, the sum of forty-five dollars per
month, until such child attains the age of eighteen years or
marries, whichever first occurs; to each dependent father and
mother the sum of thirty dollars per month for each; to each
dependent brother or sister, the sum of fifty dollars per month,
until
such the individual attains the age of eighteen years or
marries, whichever first occurs, but in no event shall the
aggregate amount paid to such brothers and sisters exceed one
hundred dollars per month. If at any time, because of the number
of dependents, all such dependents cannot be paid in full as
herein provided, then each dependent shall receive
his a pro rata
share of
such the payments. In no case shall the payments to the
surviving spouse and children be cut below sixty-five percent of
the total amount paid to all dependents; and
(2) A surviving spouse, dependent child or children, or
dependent father or mother, or dependent brothers or sisters, of
any former member who became eligible for death benefits on or
after July 1, 1962, shall continue to receive death benefits, but
on and after July 1, 1985, shall receive the death benefits
provided for in section twenty-six of this article.
(d) A former member who is receiving disability pension
benefits on July 1, 1985, shall continue to receive disability
pension benefits provided for in section twenty-four of this
article.
CHAPTER 11. TAXATION.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-12i. Additional modification reducing federal adjusted
gross income for insurance policy premium
surcharges.
(a) For taxable years beginning on and after January 1,
2009, in addition to amounts authorized to be subtracted from
federal adjusted gross income pursuant to subsection (c), section
twelve of this article, any payment made during the taxable year
for insurance policy premium surcharges imposed for the purpose
of providing additional revenue for volunteer fire departments
and part-volunteer fire departments pursuant to sections
thirty-four and and thirty-five, article three, chapter
thirty-three of this code, is an authorized modification reducing
federal adjusted gross income, but only to the extent the amount
is not allowable as a deduction when arriving at the taxpayer's
federal adjusted gross income for the taxable year in which the payment is made.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 4. ACCOUNTS, REPORTS AND GENERAL PROVISIONS.
§12-4-14. Accountability of persons receiving state funds or
grants; criminal penalties.
(a) For the purposes of this section:
(1) "Grantor" means a state spending unit awarding a state
grant.
(2) "Person" includes any corporation, partnership,
association, individual or other legal entity. The term "person"
does not include a state spending unit or a local government as
defined in section one-a, article nine, chapter six of this code.
(3) "Report" means an engagement, such as an agreed-upon
procedures engagement or other attestation engagement, performed
and prepared by a certified public accountant to test whether
state grants were spent as intended. The term "report" does not
mean a full-scope audit or review of the person receiving state
funds.
(4) "State grant" means funding provided by a state spending
unit, regardless of the original source of the funds, to a person
upon application for a specific purpose. The term "state grant"
does not include: (A) Payments for goods and services purchased
by a state spending unit; (B) compensation to state employees and
public officials; (C) reimbursements to state employees and
public officials for travel or incidental expenses; (D) grants of
student aid; (E) government transfer payments; (F) direct
benefits provided under state insurance and welfare programs; (G) funds reimbursed to a person for expenditures made for qualified
purposes when receipts for the expenditures are required prior to
receiving the funds:
Provided, That notwithstanding the
provisions of this subdivision, funding provided pursuant to
section twelve, article two, chapter five-b is included within
the term "state grant"; (H) retirement benefits; and (I) federal
pass-through funds that are subject to the federal Single Audit
Act Amendments of 1996, 31 U.S.C. 7501,
et seq. The term "state
grant" does not include formula distributions to volunteer and
part-volunteer fire departments made pursuant to
sections
fourteen-d and thirty-three section thirty-four, article three,
chapter thirty-three of this code and section seven, article
twelve-c of said chapter.
(b)(1) Any person who receives one or more state grants in
the amount of $50,000 or more in the aggregate in a state's
fiscal year shall file with the grantor a report of the
disbursement of the state grant funds. When the grantor causes
an audit, by an independent certified public accountant, to be
conducted of the grant funds, the audit is performed using
generally accepted government auditing standards and a copy of
the audit is available for public inspection, no report is
required to be filed under this section. An audit performed that
complies with Office of Management and Budget circular A-133, as
published on the twenty-seventh day of June, two thousand three,
and submitted within the period provided in this section may be
substituted for the report.
(2) Any person who receives a state grant in an amount less than $50,000 or who is not required to file a report because an
audit has been conducted or substituted as provided by
subdivision (1) of this subsection shall file with the grantor a
sworn statement of expenditures made under the grant.
(3) Reports and sworn statements of expenditures required by
subdivisions (1) and (2) of this subsection shall be filed within
two years of the end of the person's fiscal year in which the
disbursement of state grant funds by the grantor was made. The
report shall be made by an independent certified public
accountant at the cost of the person receiving the state grant.
State grant funds may be used to pay for the report if the
applicable grant provisions allow. The scope of the report is
limited to showing that the state grant funds were spent for the
purposes intended when the grant was made.
(c)(1) Any person failing to file a required report or sworn
statement of expenditures within the two-year period provided in
subdivision (3), subsection (b) of this section for state grant
funds disbursed after July 1, 2003, is barred from subsequently
receiving state grants until the person has filed the report or
sworn statement of expenditures and is otherwise in compliance
with the provisions of this section.
(2) Any grantor of a state grant shall report any persons
failing to file a required report or sworn statement of
expenditures within the required period provided in subdivision
(3), subsection (b) of this section for a state grant disbursed
after July 1, 2003, to the Legislative Auditor for purposes of
debarment from receiving state grants.
(d)(1) The state agency administering the state grant shall
notify the grantee of the reporting requirements set forth in
this section.
(2) All grantors awarding state grants shall, prior to
awarding a state grant, take reasonable actions to verify that
the person is not barred from receiving state grants pursuant to
this section. The verification process shall, at a minimum,
include:
(A) A requirement that the person seeking the state grant
provide a sworn statement from an authorized representative that
the person has filed all reports and sworn statements of
expenditures for state grants received as required under this
section; and
(B) Confirmation from the Legislative Auditor by the grantor
that the person has not been identified as one who has failed to
file a report or sworn statement of expenditures under this
section. Confirmation may be accomplished by accessing the
computerized database provided in subsection (e) of this section.
(3) If any report or sworn statement of expenditures
submitted pursuant to the requirements of this section provides
evidence of a reportable condition or violation, the grantor
shall provide a copy of the report or sworn statement of
expenditures to the Legislative Auditor within thirty days of
receipt by the grantor.
(4) The grantor shall maintain copies of reports and sworn
statements of expenditures required by this section and make the
reports or sworn statements of expenditures available for public inspection, as well as for use in audits and performance reviews
of the grantor.
(5) The Secretary of the Department of Administration has
authority to promulgate procedural and interpretive rules and
propose legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code
to assist in implementing the provisions of subsections (a), (b),
(c) and (d) of this section.
(e)(1) Any state agency administering a state grant shall,
in the manner designated by the Legislative Auditor, notify the
Legislative Auditor of the maximum amount of funds to be
disbursed, the identity of the person authorized to receive the
funds, the person's fiscal year and federal employer
identification number and the purpose and nature of the state
grant within thirty days of making the state grant or authorizing
the disbursement of the funds, whichever is later.
If the state
grant was awarded prior to the first day of October, two thousand
five, the grantor shall provide the information required by this
section by the first day of December, two thousand five.
(2) The State Treasurer shall provide the Legislative
Auditor the information concerning formula distributions to
volunteer and part-volunteer fire departments, made pursuant to
sections fourteen-d and thirty-three section thirty-four, article
three, chapter thirty-three of this code and section seven,
article twelve-c of said chapter, the Legislative Auditor
requests and in the manner designated by the Legislative Auditor.
(3) The Legislative Auditor shall maintain a list identifying persons who have failed to file reports and sworn
statements required by this section. The list may be in the form
of a computerized database that may be accessed by state agencies
over the Internet.
(f) An audit of state grant funds may be authorized at any
time by the Joint Committee on Government and Finance to be
conducted by the Legislative Auditor at no cost to the grantee.
(g) (1) Volunteer and part-volunteer fire departments
receiving formula distributions pursuant to sections fourteen-d
and thirty-three, article three, chapter thirty-three of this
code and section seven, article twelve-c of said chapter shall
either:
(A) File a report, as defined in subdivision (3), subsection
(a) of this section with the Legislative Auditor within the same
time frames as are required for sworn statements of annual
expenditures to be filed under this section. The report shall be
made by an independent certified public accountant at the cost of
the volunteer or part-volunteer fire department. The scope of
the report is limited to showing that the funds distributed were
spent for authorized purposes; or
(B) File a sworn statement of annual expenditures with the
Legislative Auditor on or before the fourteenth day of February
of each year. The sworn statement of expenditures shall be
signed by the chief or director of the volunteer fire department
and shall be made under oath and acknowledged before a notary
public.
(2) If the sworn statement or report required by this subsection is not filed on or before the fifteenth day of May,
unless the time period is extended by the Legislative Auditor,
the Legislative Auditor may conduct an audit of the volunteer or
part-volunteer fire department.
(3) If the sworn statement of annual expenditures or report
required by this subsection is not filed with the Legislative
Auditor by the first day of July, unless the time period is
extended by the Legislative Auditor, the Legislative Auditor
shall notify the State Treasurer who shall withhold payment of
any amount that would otherwise be distributed to the fire
department under the provisions of sections fourteen-d and
thirty-three, article three, chapter thirty-three of this code
and section seven, article twelve-c of said chapter until the
report is complete. Moneys withheld pursuant to this subdivision
are to be deposited in the special revenue account created in the
State Treasury in subdivision (4) of this subsection.
(4) The Legislative Auditor may assign an employee or
employees to perform audits or reviews at the direction of the
Legislative Auditor of the disbursement of state grant funds to
volunteer fire departments. The volunteer fire department shall
cooperate with the Legislative Auditor, the Legislative Auditor's
employees and the State Auditor in performing their duties under
this section. If the Legislative Auditor determines a volunteer
fire department is not cooperating, the Legislative Auditor shall
notify the State Treasurer who shall withhold payment of any
amount that would otherwise be distributed to the fire department
under the provisions of sections fourteen-d and thirty-three, article three, chapter thirty-three of this code and section
seven, article twelve-c of said chapter until the Legislative
Auditor informs the Treasurer that the fire department has
cooperated as required by this section. The State Treasurer
shall pay the amount withheld into a special revenue account
hereby created in the State Treasury and designated the
"Volunteer Fire Department Audit Account". If, after one year
from payment of the amount withheld into the special revenue
account, the Legislative Auditor informs the State Treasurer of
continued noncooperation by the fire department, the State
Treasurer shall pay the amount withheld to the fund from which it
was distributed to be redistributed the following year pursuant
to the applicable provisions of those sections.
(5) Whenever the State Auditor performs an audit of a
volunteer fire department for any purpose the Auditor shall also
conduct an audit of other state funds received by the fire
department pursuant to sections fourteen-d and thirty-three,
article three, chapter thirty-three of this code and section
seven, article twelve-c of said chapter. The Auditor shall send
a copy of the audit to the Legislative Auditor. The Legislative
Auditor may accept an audit performed by the Auditor in lieu of
performing an audit under this section.
(6) If the Legislative Auditor is notified by a grantor that
a fire department has failed to file a report or a sworn
statement of expenditures for a state grant it received, the
Legislative Auditor shall notify the Treasurer who shall withhold
further distributions to the fire department in the same manner provided in subdivision (3) of this subsection.
(h)(g) Any report submitted pursuant to the provisions of
this section may be filed electronically in accordance with the
provisions of article one, chapter thirty-nine-a of this code.
(i)(h) Any person who files a fraudulent sworn statement of
expenditures under subsection (b)
or (g) of this section, a
fraudulent sworn statement under subsection (d) of this section
or a fraudulent report under this section is guilty of a felony
and, upon conviction thereof, shall be fined not less than $1,000
nor more than $5,000 or imprisoned in a state correctional
facility for not less than one year nor more than five years, or
both fined and imprisoned.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-15e. Study required.
The commissioner is hereby directed to study the impact of
grouping risks by classifications and by territorial areas for
the establishment of rates and minimum premiums, as set forth in
subdivision (2), subsection (c), section three, article twenty of
this chapter, and to submit a report to the Legislature by
September 30, 2009.
ARTICLE 3. LICENSING, FEES AND TAXATION OF INSURERS.
§33-3-14d. Additional fire and casualty insurance premium tax;
allocation of proceeds;
effective date repealed
July 1, 2009.
(a) For the purpose of providing additional revenue for
municipal policemen's and firemen's pension and relief funds and the teachers retirement system reserve fund and for volunteer and
part volunteer fire companies and departments, there is hereby
levied and imposed an additional premium tax equal to one percent
of taxable premiums for fire insurance and casualty insurance
policies. For purposes of this section, casualty insurance does
not include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the
debtor is disabled as defined in the policy.
All moneys collected from this additional tax shall be
received by the commissioner and paid by him or her into a
special account in the state treasury, designated the municipal
pensions and protection fund. The net proceeds of this tax after
appropriation thereof by the Legislature is distributed in
accordance with the provisions of this section.
(b)(1) Before the first day of August of each calendar year,
the treasurer of each municipality in which a municipal
policemen's or firemen's pension and relief fund has been
established shall report to the state treasurer the average
monthly number of members who worked at least one hundred hours
per month and the average monthly number of retired members of
municipal policemen's or firemen's pension systems during the
preceding fiscal year.
(2) Before the first day of September of each calendar year,
the state treasurer shall allocate and authorize for distribution
the revenues in the municipal pensions and protection fund which were collected during the preceding calendar year for the
purposes set forth in this section. Sixty-five percent of the
revenues are allocated to municipal policemen's and firemen's
pension and relief funds; twenty-five percent of the revenues
shall be allocated to volunteer and part volunteer fire companies
and departments; and ten percent of such allocated revenues are
allocated to the teachers retirement system reserve fund created
by section eighteen, article seven-a, chapter eighteen of this
code:
Provided, That in any year the actuarial report required
by section twenty, article twenty-two, chapter eight of this code
indicates no actuarial deficiency in the municipal policemen's or
firemen's pension and relief fund, no revenues may be allocated
from the municipal pensions and protection fund to that fund.
The revenues from the municipal pensions and protection fund
shall then be allocated to all other pension funds which have an
actuarial deficiency.
(3) The moneys, and the interest earned thereon, in the
municipal pensions and protection fund allocated to volunteer and
part volunteer fire companies and departments shall be allocated
and distributed quarterly to the volunteer fire companies and
departments. Before each distribution date, the state fire
marshal shall report to the state treasurer the names and
addresses of all volunteer and part volunteer fire companies and
departments within the state which meet the eligibility
requirements established in section eight-a, article fifteen,
chapter eight of this code.
(c)(1) Each municipal pension and relief fund shall have allocated and authorized for distribution a pro rata share of the
revenues allocated to municipal policemen's and firemen's pension
and relief funds based upon the corresponding municipality's
average monthly number of members who worked at least one hundred
hours per month during the preceding fiscal year. On and after
the first day of July, one thousand nine hundred ninety-seven,
from the growth in any moneys collected pursuant to the tax
imposed by this section there shall be allocated and authorized
for distribution to each municipal pension and relief fund, a pro
rata share of the revenues allocated to municipal policemen's and
firemen's pension and relief funds based upon the corresponding
municipalities average number of members who worked at least one
hundred hours per month and average monthly number of retired
members. For the purposes of this subsection, the growth in
moneys collected from the tax collected pursuant to this section
is determined by subtracting the amount of the tax collected
during the fiscal year ending the thirtieth day of June, one
thousand nine hundred ninety-six, from the tax collected during
the fiscal year for which the allocation is being made. All
moneys received by municipal pension and relief funds under this
section may be expended only for those purposes described in
sections sixteen through twenty-eight, inclusive, article
twenty-two, chapter eight of this code.
(2) Each volunteer fire company or department shall receive
an equal share of the revenues allocated for volunteer and part
volunteer fire companies and departments.
(3) In addition to the share allocated and distributed in accordance with subdivision (1) of this subsection, each
municipal fire department composed of full-time paid members and
volunteers and part volunteer fire companies and departments
shall receive a share equal to the share distributed to volunteer
fire companies under subdivision (2) of this subsection reduced
by an amount equal to the share multiplied by the ratio of the
number of full-time paid fire department members who are also
members of a municipal firemen's pension system to the total
number of members of the fire department.
(d) The allocation and distribution of revenues provided for
in this section are subject to the provisions of section twenty,
article twenty-two, and sections eight-a and eight-b, article
fifteen, chapter eight of this code.
(e) Each and every provision of this section is repealed
beginning on and after July 1, 2009.
§33-3-14e. Additional fire and casualty insurance premium tax;
allocation of proceeds; effective July 1, 2009.
(a)(1) For the purpose of providing additional revenue for
municipal policemen's and firemen's pension and relief funds,
there is hereby levied and imposed an additional premium tax
equal to one and twenty one hundredths of one percent of taxable
premiums for fire insurance and casualty insurance policies. For
purposes of this section, casualty insurance does not include
insurance on the life of a debtor pursuant to or in connection
with a specific loan or other credit transaction or insurance on
a debtor to provide indemnity for payments becoming due on a
specific loan or other credit transaction while the debtor is disabled as defined in the policy.
(2) All moneys collected from this additional tax shall be
received by the commissioner and paid into a special account in
the State Treasury, designated the Municipal Pensions Security
Fund, subject to provisions of section eighteen-b, article
twenty-two, chapter eight of this code. After the distribution
for expenses pursuant to subsection (d), section eighteen-a,
article twenty-two, chapter eight of this code, the net proceeds
of this tax after appropriation thereof by the Legislature shall
be distributed in accordance with the provisions of this section.
(b) Before August 1, 2009, the treasurer of each
municipality in which a municipal policemen's or firemen's
pension and relief fund has been established shall report to the
State Treasurer the average monthly number of members who worked
at least one hundred hours per month and the average monthly
number of retired members of municipal policemen's or firemen's
pension systems during the preceding fiscal year. Beginning in
2010, before August 1 of each year, the report shall be made to
the municipal pensions oversight board created in section
eighteen-a, article twenty-two, chapter eight of this code, and
the board shall provide a copy of the report annually to the
State Treasurer by September 1.
(c)(1) Before September 1, 2009, the State Treasurer shall
allocate and authorize for distribution the revenues in the
municipal pensions and protection fund in an amount equal to the
amount that was collected during the preceding calendar year,
together with any interest or other earnings thereon, to municipal policemen's and firemen's pension and relief funds for
the purposes set forth in this section.
(2) Before September 1, 2010, the municipal pensions
oversight board shall allocate and authorize for distribution the
revenues in Municipal Pensions Security Fund in an amount equal
to total of the amount transferred to the Municipal Pensions
Security Fund from the municipal pensions and protection fund on
September 1, 2009 and the amount collected during from September
through December, 2009, together with any interest or other
earnings thereon, to municipal policemen's and firemen's pension
and relief funds for the purposes set forth in this section,
subject to provisions in section eighteen-b, article twenty-two,
chapter eight of this code.
(3)(A) Beginning January 1, 2010, the Municipal Pensions
Oversight Board shall annually invest thirty-seven and five
tenths of one percent of collections of the additional premium
tax with the West Virginia Investment Management Board or the
Board of Treasury Investments. These amounts and any earnings
thereon shall be segregated from the collections described in
subsection (4) of this subsection and are not subject to
administrative fees. No allocations or distributions may be made
from these segregated assets before January 1, 2015.
(B) After December 31, 2014, the municipal pension oversight
board shall in each calendar year distribute an amount equal to
one-fifth of the value of these segregated assets, as determined
as of January 1 of the calendar year, to the eligible municipal
policemen's or firemen's pension and relief funds, subject to provisions in section eighteen-b, article twenty-two, chapter
eight of this code for the purposes and upon the conditions set
forth in this section.
(C) The annual allocations and distributions of the
segregated assets shall be made only to qualifying
municipalities, as defined in section two, article thirteen-c,
chapter eight of this code, that have in effect on January 1 of
the calendar year of distribution the imposition of a pension
relief municipal occupational tax, a pension relief municipal
sales and service tax, a pension relief municipal use tax or any
other tax, or any combination of those taxes, the proceeds of
which are dedicated solely for the purposes set forth in section
nine, article thirteen-c, chapter eight of this code.
(D) Except as otherwise provided in this paragraph, annual
allocations and distributions of the segregated assets shall be
made on a pro rata basis based upon the corresponding
municipalities' average number of members who worked at least one
hundred hours per month and average monthly number of retired
members. An allocation and distribution made under this
subdivision shall also be used by the municipality solely for the
purposes of section two, article thirteen-c, chapter eight of
this code. The distributions shall be provided on a matching
basis so that the amount of an allocation to a municipality may
not exceed the amount of the revenues the municipality applies
for those purposes from its collections of the tax or taxes
imposed for those purposes.
(4)(A) Beginning in 2011, before September 1 of each year, the Municipal Pensions Oversight Board shall allocate and
authorize for distribution a portion of the revenues in the
Municipal Pensions Security Fund in an amount equal to sixty-two
and five tenths of one percent, together with any interest or
other earnings thereon, of the amount of the additional premium
tax collected during the preceding calendar year to municipal
policemen's and firemen's pension and relief funds for the
purposes set forth in this section, subject to provisions in
section eighteen-b, article twenty-two, chapter eight of this
code.
(B) Allocations and distributions of the amounts described
in this subdivision shall be made on a pro rata basis based upon
the corresponding municipalities' average number of members who
worked at least one hundred hours per month and average monthly
number of retired members. All moneys received by municipal
pension and relief funds under this section may be expended only
for those purposes described in sections sixteen through
twenty-eight, inclusive, article twenty-two, chapter eight of
this code.
(d) To be eligible to receive any allocation of moneys from
the surcharge, a municipal policemen's or firemen's pension and
relief fund must have had contributions from all members in
accordance with provisions of subsection (c), section nineteen,
article twenty-two, chapter eight of this code and meet the
minimum standards for annual municipality contributions pursuant
to subsection (c), section twenty, article twenty-two, chapter
eight of this code.
(e) In any year the actuarial report required by section
twenty, article twenty-two, chapter eight of this code indicates
a municipal policemen's or firemen's pension and relief fund has
assets amounting to one hundred ten percent of its actuarially
accrued liabilities, no revenues may be allocated from the
Municipal Pensions and Protection Fund or the Municipal Pensions
Security Fund to that municipal pension and relief fund. The
revenues from the Municipal Pensions and Protection Fund or
Municipal Pensions Security Fund shall then be allocated to all
other pension funds which have not achieved a funding level of
one hundred ten percent. However, for plans with a funding level
of at least one hundred ten percent that are not eligible for
revenue from the Municipal Pensions Protection Fund or Municipal
Pensions Security Fund, the minimum standards for annual employer
contributions after July 1, 2009, as defined in subsection (c),
section twenty, article twenty-two, chapter eight of this code,
shall equal the normal cost less the amortized value of the
actuarial surplus over a period of not more than forty years
beginning on July 1, 2009. For this purpose, the actuarial
surplus equals the excess of the actuarial value of assets over
the actuarial accrued liability as defined in subdivision (1),
subsection (c), section twenty, article twenty-two, chapter eight
of this code.
(f) Except where otherwise provided by this section, each
municipal pension and relief fund shall have allocated and
authorized for distribution a pro rata share of the revenues
allocated to municipal policemen's and firemen's pension and relief funds based upon the corresponding municipalities' average
number of members who worked at least one hundred hours per month
and average monthly number of retired members. Except where
otherwise provided by this section, all moneys received by
municipal pension and relief funds under this section may be
expended only for those purposes described in sections sixteen
through twenty-eight, inclusive, article twenty-two, chapter
eight of this code.
(g) The allocation and distribution of revenues provided in
this section are subject to the provisions of section twenty,
article twenty-two, chapter eight of this code.
(h) The provisions of this section are effective beginning
July 1, 2009, and thereafter.
§33-3-33. Surcharge on fire and casualty insurance policies to
benefit volunteer and part-volunteer fire
departments; Public Employees Insurance Agency and
municipal pension plans; special fund created;
allocation of proceeds;
effective date repealed
July 1, 2009.
(a)(1) For the purpose of providing additional revenue for
volunteer fire departments, part-volunteer fire departments and
certain retired teachers and the teachers retirement reserve
fund, there is hereby authorized and imposed on and after the
first day of July, one thousand nine hundred ninety-two, on the
policyholder of any fire insurance policy or casualty insurance
policy issued by any insurer, authorized or unauthorized, or by
any risk retention group, a policy surcharge equal to one percent of the taxable premium for each such policy. After the thirtieth
day of June, two thousand five, the surcharge shall be imposed as
specified in subdivisions (2) and (3) of this subsection.
(2) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, for
the purpose of providing additional revenue for volunteer fire
departments, part-volunteer fire departments and to provide
additional revenue to the Public Employees Insurance Agency and
municipal pension plans, there is hereby authorized and imposed
on and after the first day of July, two thousand five, on the
policyholder of any fire insurance policy or casualty insurance
policy issued by any insurer, authorized or unauthorized, or by
any risk retention group, a policy surcharge equal to one percent
of the taxable premium for each such policy.
(3) After the thirty-first day of December, two thousand
five, for the purpose of providing additional revenue for
volunteer fire departments and part-volunteer fire departments,
there is hereby authorized and imposed on the policyholder of any
fire insurance policy or casualty insurance policy issued by any
insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to fifty-five one hundredths of
one percent of the taxable premium for each such policy.
(4) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the debtor is disabled as defined in the policy. The policy
surcharge may not be subject to premium taxes, agent commissions
or any other assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the Commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is
issued by a risk retention group, by the risk retention group.
The amount required to be collected under this section shall be
remitted to the Commissioner on a quarterly basis on or before
the twenty-fifth day of the month succeeding the end of the
quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before
the first day of March of the succeeding year.
(c) Any person failing or refusing to collect and remit to
the Commissioner any policy surcharge and whose surcharge
payments are not postmarked by the due dates for quarterly filing
is liable for a civil penalty of up to one hundred dollars for
each day of delinquency, to be assessed by the Commissioner. The
Commissioner may suspend the insurer, broker or risk retention
group until all surcharge payments and penalties are remitted in
full to the Commissioner.
(d)(1) All money from the policy surcharge shall be
collected by the Commissioner who shall disburse the money
received from the surcharge into a special account in the State
Treasury, designated the Fire Protection Fund. The net proceeds
of this portion of the tax and the interest thereon, after
appropriation by the Legislature, shall be distributed quarterly on the first day of the months of January, April, July and
October to each volunteer fire company or department on an equal
share basis by the State Treasurer. After the thirtieth day of
June, two thousand five, the money received from the surcharge
shall be distributed as specified in subdivisions (2) and (3) of
this subsection.
(2)(A) After the thirtieth day of June, two thousand five,
through the thirty-first day of December, two thousand five, all
money from the policy surcharge shall be collected by the
Commissioner who shall disburse one half of the money received
from the surcharge into the Fire Protection Fund for distribution
as provided in subdivision (1) of this subsection.
(B) The remaining portion of moneys collected shall be
transferred into the fund in the State Treasury of the Public
Employees Insurance Agency into which are deposited the
proportionate shares made by agencies of this state of the Public
Employees Insurance Agency costs of those agencies, until the
first day of November, two thousand five. After the thirty-first
day of October, two thousand five, through the thirty-first day
of December, two thousand five, the remain portion shall be
transferred to the special account in the State Treasury, known
as the Municipal Pensions and Protection Fund.
(3) After the thirty-first day of December, two thousand
five, all money from the policy surcharge shall be collected by
the Commissioner who shall disburse all of the money received
from the surcharge into the Fire Protection Fund for distribution
as provided in subdivision (1) of this subsection.
(4) Before each distribution date to volunteer fire
companies or departments, the State Fire Marshal shall report to
the State Treasurer the names and addresses of all volunteer and
part-volunteer fire companies and departments within the state
which meet the eligibility requirements established in section
eight-a, article fifteen, chapter eight of this code.
(e) The allocation, distribution and use of revenues
provided in the Fire Protection Fund are subject to the
provisions of sections eight-a and eight-b, article fifteen,
chapter eight of this code.
(f) Each and every provision of this section is repealed
beginning on and after July 1, 2009.
§33-3-34. Surcharge on fire and casualty insurance policies to
benefit volunteer and part-volunteer fire
departments; allocation of proceeds; effective
July 1, 2009.
(a)(1) For the purpose of providing additional revenue for
volunteer fire departments and part-volunteer fire departments,
there is hereby authorized and imposed on the policyholder of any
fire insurance policy or casualty insurance policy issued by any
insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to eighty one hundredths of one
percent of the taxable premium for each such policy.
(2) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming due on a specific loan or other credit transaction while the
debtor is disabled as defined in the policy. The policy
surcharge may not be subject to premium taxes, agent commissions
or any other assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is
issued by a risk retention group, by the risk retention group.
The amount required to be collected under this section shall be
remitted to the commissioner on a quarterly basis on or before
the twenty-fifth day of the month succeeding the end of the
quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before
March 1 of the succeeding year.
(c) Any person failing or refusing to collect and remit to
the commissioner any policy surcharge and whose surcharge
payments are not postmarked by the due dates for quarterly filing
is liable for a civil penalty of up to $100 for each day of
delinquency, to be assessed by the commissioner. The
commissioner may suspend the insurer, broker or risk retention
group until all surcharge payments and penalties are remitted in
full to the commissioner.
(d)(1) All money from the policy surcharge shall be
collected by the commissioner who shall disburse the money
received from the surcharge into a special account in the State
Treasury, designated the Fire Protection Fund. The net proceeds
of this surcharge and the interest or other earnings thereon, after appropriation by the Legislature, shall be distributed
quarterly on the first day of the months of January, April, July
and October to each volunteer fire company or department on an
equal share basis by the State Treasurer. Each volunteer fire
company or department shall receive an equal share of the
revenues allocated for volunteer and part volunteer fire
companies and departments.
(2) Each municipal fire department composed of full-time
paid members and volunteers and part volunteer fire companies and
departments shall receive a share equal to the share distributed
to volunteer fire companies under subdivision (1) of this
subsection reduced by an amount equal to the share multiplied by
the ratio of the number of full-time paid fire department members
who are also members of a municipal firemen's pension system to
the total number of members of the fire department.
(3) Before each distribution date to volunteer fire
companies or departments, the State Fire Marshal shall report to
the State Treasurer the names and addresses of all volunteer and
part-volunteer fire companies and departments within the state
which meet the eligibility requirements established in section
eight-a, article fifteen, chapter eight of this code.
(e) The allocation, distribution and use of revenues
provided from the Fire Protection Fund are subject to the
provisions of sections eight-a and eight-b, article fifteen,
chapter eight of this code.
(f) The provisions of this section are effective beginning
July 1, 2009, and thereafter.
§33-3-35. Additional surcharge on fire and casualty insurance
policies to Volunteer Firefighters Length of
Service Awards Programs Fund benefits for members
of volunteer and part volunteer fire companies and
departments; special fund created; allocation of
proceeds; duties of State Treasurer and State Fire
Marshal.
(a)(1) For the purpose of providing additional revenue for
volunteer and part volunteer fire companies and departments that
provide benefits to their members under a qualified length of
service awards program, there is hereby authorized and imposed on
and after January 1, 2010, on the policyholder of any fire
insurance policy or casualty insurance policy issued by any
insurer, authorized or unauthorized, or by any risk retention
group, an additional policy surcharge equal to thirty one
hundredths of one percent of the taxable premium for each such
policy.
(2) For purposes of this section, casualty insurance may not
include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the
debtor is disabled as defined in the policy. The policy
surcharge may not be subject to premium taxes, agent commissions
or any other assessment against premiums.
(3) The surcharge imposed under this section is in addition
to all other taxes, surcharges, licenses or other charges to which the persons charged herein are subject under the law of
this state.
(b) The policy surcharge shall be collected and remitted to
the commissioner by the insurer, or in the case of surplus lines
coverage, by the surplus lines licensee, or if the policy is
issued by a risk retention group, by the risk retention group.
The amount required to be collected under this section shall be
remitted to the commissioner on a quarterly basis on or before
the twenty-fifth day of the month succeeding the end of the
quarter in which they are collected, except for the fourth
quarter for which the surcharge shall be remitted on or before
March 1 of the succeeding year.
(c) Any person failing or refusing to collect and remit to
the commissioner any policy surcharge and whose surcharge
payments are not postmarked by the due dates for quarterly filing
is liable for a civil penalty of up to $100 for each day of
delinquency, to be assessed by the commissioner. The
commissioner may suspend the insurer, broker or risk retention
group until all surcharge payments and penalties are remitted in
full to the commissioner.
(d) All money from the policy surcharge shall be collected
by the commissioner, transferred into a special revenue fund to
be administered by the State Treasurer, designated the "Volunteer
Firefighters Length of Service Awards Program Fund," which is
hereby created, and expended for the purposes provided in this
section in accordance with subsection (e) of this section. Any
earnings or other return on the investment of the moneys in the fund shall be deposited into the General Revenue Fund, but at the
end of each fiscal year, the moneys deposited into the fund shall
not revert to the General Revenue Fund but shall continue to be
held in the fund for expenditure during the ensuing fiscal year,
except as provided in subsection (e) of this section.
(e)(1) On and after January 1, 2011, and each year
thereafter, the State Treasurer shall distribute an amount equal
to the amount of money in the Volunteer Firefighters Length of
Service Awards Program Fund that was collected and deposited into
the fund during the next preceding calendar year as provided in
this subsection.
(2) Not more than one-half of one percent of the total
amount of collections during the next preceding calendar year, in
an amount not to exceed $100,000 as certified by the State Fire
Marshal as necessary to defray the annual expenses for the
performance of the administrative duties imposed upon the State
Fire Marshal by this section and section eight-e, article
fifteen, chapter eight of this code, shall be transferred by the
State Treasurer to the Fire Marshal Fees Fund established in
section twelve-b, article three, chapter twenty-nine of this
code.
(3) Not more than one-half of one percent of the total
amount of collections during the next preceding calendar year, in
an amount not to exceed $100,000 as certified by the State
Treasurer as necessary to defray the annual expenses for the
performance of the administrative duties imposed upon the State
Treasurer by this section, shall be transferred to an account designated by the State Treasurer.
(4) From the net amount collected and deposited into the
fund during the next preceding calendar year as provided in this
subsection, the State Treasurer shall distribute a share, as
determined in subdivisions (5) and (6) of this subsection, to
each eligible volunteer and part volunteer fire company and
department that provides benefits to their members under a
qualified length of service awards program for purposes of
defraying the annual expense of the premium costs incurred by the
volunteer or part volunteer fire company or department to
participate in the program.
(5) Before each distribution, the State Fire Marshal shall
report to the State Treasurer the names and addresses of all
volunteer and part volunteer fire companies and departments
within the state which meet the eligibility requirements
established in section eight-e, article fifteen, chapter eight of
this code, and separately identify the names and addresses of
those that are enrolled in a qualified length of service awards
program and the payment or portion of payment due or that will
become due from each of those volunteer and part volunteer fire
companies and departments during the current year to continue
coverage under the program.
(6) The share distributed to each qualified volunteer and
part volunteer fire company and department shall be the lesser of
the amount of the payment or portion of payment due or that will
become due during the current year from the volunteer or part
volunteer fire company or department to continue coverage under the program, or an amount equal to the net amount collected and
deposited into the fund during the next preceding calendar year
as described in subdivision (1) of this subsection divided by the
total number of volunteer and part volunteer fire companies and
departments within the state reported by the State Fire Marshal
under subdivision (5) of this subsection.
(7) Within thirty days following the expiration of the
calendar year, the State Treasurer shall transfer any amount
undistributed and remaining of the moneys to be distributed under
subdivision (6) of this subsection to the Fire Protection Fund
administered pursuant to section thirty-four of this article and
expended for the purposes provided by that section.
(f) Funds received by volunteer and part volunteer fire
companies and departments pursuant to this section shall be used
solely for the cost of providing a length of service awards
program for their members. Any volunteer or part volunteer fire
company or department that fails to expend those funds for those
purposes shall repay the amount of the funds to the State
Treasurer within one year of receipt. The State Treasurer shall
deposit all repaid amounts into the Fire Protection Fund
administered pursuant to section thirty-four of this article.
(g) The allocation, distribution and use of revenues
provided in the Volunteer Firefighters Length of Service Awards
Program Fund are subject to sections eight-b and eight-e, article
fifteen, chapter eight of this code.
Note: The purpose of this bill is to modify statutory
provisions through which the state provides assistance to certain
political subdivision activities involving municipal policemen's and firemen's pensions and relief systems and volunteer fire
departments.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§8-15-8d, §8-15-8e, §8-22-18a, §8-22-18b, §11-21-12i, §33-2-
15e, §33-3-14e, §33-3-34 and §33-3-35 are new.