SB 427 Text

Senate Bill No. 427
(By Senators Love and Hunter)
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[Introduced February 3, 2003; referred to the Committee on

Pensions; and then to the Committee on Finance.]

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A BILL to amend chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fourteen-f, relating to creating the "West Virginia Division of Corrections Retirement System Act".

Be it enacted by the Legislature of West Virginia:

That chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fourteen-f, to read as follows:
ARTICLE 14F. WEST VIRGINIA DIVISION OF CORRECTIONS RETIREMENT SYSTEM ACT.

§7-14F-1. Short title.
This article shall be known and may be cited as the "West Virginia Division of Corrections Retirement System Act."
§7-14F-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:

(1) "Active military duty" means full-time active duty with the armed forces of the United States, namely, the United States air force, army, coast guard, marines or navy; and service with the national guard or reserve military forces of any of the armed forces when the member has been called to active full-time duty and has received no compensation during the period of such duty from any person other than the armed forces.

(2) "Base salary" means compensation paid to a member without regard to any overtime pay.

(3) "Board" means the consolidated public retirement board created pursuant to article ten-d, chapter five of this code.

(4) "Division" means the division of corrections.

(5) "Final average salary" means the average of the highest annual compensation received for employment with the division, including compensation paid for overtime service, received by the member during any five years within the member?s last ten years of service.

(6) "Fund" means the West Virginia division of corrections retirement fund created pursuant to section four of this article.

(7) "Member" or "employee" means a person regularly employed in the service of the division of corrections after the effective date of this article.

(8) "Salary" means the compensation of a member, excluding any overtime payments.

(9) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended.

(10) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending the following thirtieth day of June.

(11) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the calendar year in which he or she retires or otherwise separates from service with the department.

(12) "Retirement system" or "system" means the West Virginia division of corrections retirement system created and established by this article.

§7-14F-3. Creation and administration of West Virginia division of corrections retirement system; leased employees; federal qualification requirements.

(a) There is hereby created the West Virginia division of corrections retirement system. Any West Virginia division of corrections employee employed by the West Virginia division of corrections on or after the effective date of this article shall be a member of this retirement system and may not qualify for membership in any other retirement system administered by the consolidated public retirement board, so long as he or she remains employed by the division of corrections.

(b) Any individual who is a leased employee shall not be eligible to participate in the system. For purposes of this system, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question.

(c) The consolidated public retirement board created pursuant to article ten-d, chapter five of this code shall administer the West Virginia division of corrections retirement system. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the West Virginia division of corrections retirement system.

(d) This retirement system is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the retirement system to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements shall be effective as of the date required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to section one, article ten-d, chapter five of this code, to assure compliance with this section.
§7-14F-4. Participation in system; creation of fund.
There is hereby created the "West Virginia Division of Corrections Retirement Fund" for the benefit of the members of the retirement system created pursuant to this article and the dependents of any deceased or retired member of the system.

All moneys paid into and accumulated in the fund, except such amounts as shall be designated or set aside by the board for payments of benefits as provided in this article, shall be invested by the state board of investments as provided by law.
§7-14F-4a. Specification of actuarial assumptions.
The board shall specify and adopt all actuarial assumptions for the fund at its first meeting in each calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the terms of the system.
§7-14F-5. Members? contributions; employer contributions; forfeitures.

(a) There shall be deducted from the monthly payroll of each member and paid into the fund created pursuant to section four of this article twelve percent of the amount of his or her salary. An additional twelve percent of the monthly salary of each member of the department shall be paid by the state of West Virginia monthly into such fund out of the annual appropriation for the division.

(b) Notwithstanding any other provisions of this article, forfeitures under the system shall not be applied to increase the benefits any member would otherwise receive under the system.
§7-14F-6. Retirement; commencement of benefits.
A member may retire with full benefits upon attaining the age of fifty-five and completing twenty or more years of service, by lodging with the consolidated public retirement board his or her voluntary petition in writing for retirement. A member who is less than age fifty-five may retire upon completing twenty years or more of service: Provided, That he or she will receive a reduced benefit that is of equal actuarial value to the benefit the member would have received if the member deferred commencement of his or her accrued retirement benefit to the age of fifty-five.

When the retirement board retires a member with full benefits under the provisions of this section, the board, by order in writing, shall make a determination that the member is entitled to receive an annuity equal to two and three-fourths percent of his or her final average salary multiplied by the number of years, and fraction of a year, of his or her service in the division at the time of retirement.

In no event may the provisions of section thirteen, article sixteen, chapter five be applied in determining eligibility to retire with either a deferred or immediate commencement of benefit.
§7-14F-6a. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and treasury regulations under that section to the extent applicable to governmental plans so that no annuity or other benefit provided under this system shall exceed those limitations. The extent to which any annuity or other benefit payable under this retirement system shall be reduced as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced shall be determined by the board in a manner that shall maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall advise affected members of any additional limitation on the annuities required by this section.
§7-14F-6b. Federal law minimum required distributions.
The requirements of this section apply to any distribution of a member?s interest and take precedence over any inconsistent provisions of this retirement system. This section applies to plan years beginning after the thirty-first day of December, two thousand three. Notwithstanding anything in the retirement system to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401(a) (9) of the Internal Revenue Code and the regulations thereunder. For this purpose, the following provisions apply:

(a) The payment of benefits under the retirement system to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401(a) (9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary.

(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the retirement system has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.

(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the retirement system shall be distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member?s death, except as follows:

(1) If a members interest is payable to a beneficiary distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of the beneficiary commencing on or before the thirty-first of December of the calendar year immediately following the calendar year in which the member died; or

(2) If the member?s beneficiary is the surviving spouse, the date distributions are required to begin shall be no later than the later of:

(A) The thirty-first day of December of the calendar year in which the member would have attained age seventy and one-half; or

(B) The earlier of: (i) The thirty-first day of December of the calendar year following the calendar year in which the member died; or (ii) the thirty-first day of December of the calendar year following the calendar year in which the spouse died.
§7-14F-6c. Direct rollovers.
(a) This section applies to distributions made on or after the first day of January, two thousand four. Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee?s election under this system, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution that is equal to at least five hundred dollars paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions shall apply:

(1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (i) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee?s designated beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under Section 401(a) (9) of the Internal Revenue Code; (iii) the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities; (iv) any hardship distribution described in Section 4.01(k) (2) (B) (i) (iv) of the Internal Revenue Code; and (v) any other distribution or distributions expected to total less than two hundred dollars during a year.

(2) "Eligible retirement plan" means an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code or a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee?s eligible rollover distribution: Provided, That in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity.

(3) "Distributee" means an employee or former employee. In addition, the employee?s or former employee?s surviving spouse and the employee?s or former employee?s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section l4(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse.

(4) "Direct rollover" means a payment by the system to the eligible retirement plan.

(b) Nothing in this section may be construed as permitting rollovers into this system or any other retirement system administered by the board.
§7-14F-7. Annual annuity adjustment.
Every member of the division of corrections who is sixty-three years of age or older and who is retired by the retirement board under the provisions of section six of this article; every member who is retired under the provisions of section nine or ten of this article; and every surviving spouse receiving a benefit pursuant to
section twelve, thirteen or fourteen of this article is eligible to receive an annual retirement annuity adjustment equal to three and seventy-five hundredths percent of his or her retirement award or surviving spouse award. Such adjustments may not be retroactive. Yearly adjustments shall begin upon the first day of July of each year. The annuity adjustments shall be awarded and paid to a member from the fund in equal monthly installments while the member is in status of retirement. The annuity adjustments shall supplement the retirement awards and benefits provided in this article.

Any member or beneficiary who receives a benefit pursuant to the provisions of section nine, ten, twelve, thirteen or fourteen of this article shall begin to receive the annual annuity adjustment one year after the commencement of the benefit on the next July first: Provided, That if the member has been retired for less than one year when the first annuity adjustment is given on the first day of July, that first annuity adjustment will be a pro rata share of the full year?s annuity adjustment.
§7-14F-8. Refunds to certain members upon discharge or resignation; deferred retirement.

(a) Any member who shall be discharged by order of the commissioner or shall otherwise terminate employment with the division shall, at the written request of the member to the retirement board, be entitled to receive from the retirement fund a sum equal to the aggregate of the principal amount of moneys deducted from the salary of the member and paid into the retirement fund plus four percent interest compounded thereon calculated annually as provided and required by this article.

(b) Any member withdrawing contributions who may thereafter be reenlisted as a member of the division shall not receive any prior service credit on account of the former service, unless following his or her reenlistment the member shall redeposit in the fund the amount of the refund, together with interest thereon at the rate of seven and one-half percent per annum from the date of withdrawal to the date of redeposit, in which case he or she shall receive the same credit on account of his or her former service as if no refund had been made.

(c) Every member who completes ten years of service with the division of corrections is eligible, upon separation of employment with the division, to either withdraw his or her contributions in accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated contributions with interest. Upon attainment of age sixty-two, a member who chooses not to withdraw his or her contributions will be eligible to receive a retirement annuity. The annuity shall be payable during the lifetime of the member, and shall be in the amount of his or her accrued retirement benefit as determined under section six of this article. The retiring member may choose, in lieu of such a life annuity, an annuity in reduced amount payable during the member?s lifetime, with one half of the reduced monthly amount paid to his or her surviving spouse if any, for the spouse?s remaining lifetime after the death of the member. Reduction of such monthly benefit amount shall be calculated to be of equal actuarial value to the life annuity the member could otherwise have chosen. Any member choosing to receive the deferred annuity under this subsection is not eligible to receive the annual annuity adjustment provided in section seven of this article.

§7-14F-9. Awards and benefits for disability -- Incurred in performance of duty.

Any member of the division who has been or shall become physically or mentally permanently disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division and incurred pursuant to or while the member was or shall be engaged in the performance of his or her duties as a member of the division shall, if, in the opinion of the retirement board, he or she is by reason of such cause unable to perform adequately the duties required of him or her as a member of the division, but is able to engage in other gainful employment be retired from active service by the board. The member shall thereafter be entitled to receive annually and there shall be paid to the member from the fund in equal monthly installments during the lifetime of the member, or until the member attains the age of fifty-five or until such disability shall sooner terminate, one or the other of two amounts, whichever is greater:

(1) An amount equal to two thirds of the base salary received in the preceding twelve-month employment period: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or

(2) The sum of six thousand dollars.

Upon attaining age fifty-five, the member shall receive the benefit provided for in section six of this article as it would apply to his or her final average salary based on earnings from the division through the day immediately preceding his or her disability. The recalculation of benefit upon a member attaining age fifty-five shall be considered to be a retirement under the provisions of section six of this article, for purposes of determining the amount of annual annuity adjustment and for all other purposes of this article.

If any member shall become permanently physically or mentally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the division and incurred pursuant to or while such member was or shall be engaged in the performance of his or her duties as a member of the division to the extent that the member is or shall be incapacitated ever to engage in any gainful employment, the member shall be entitled to receive annually, and there shall be paid to such member from the fund in equal monthly installments during the lifetime of the member or until such disability shall sooner terminate, an amount equal to the amount of the base salary received by the member in the preceding twelve-month employment period.

The commissioner of the division is authorized to expend moneys from funds appropriated for the division in payment of medical, surgical, laboratory, X ray, hospital, ambulance and dental expenses and fees, and reasonable costs and expenses incurred in the purchase of artificial limbs and other approved appliances which may be reasonably necessary for any member of the division who has or shall become temporarily, permanently or totally disabled by injury, illness or disease resulting from any occupational risk or hazard inherent in or peculiar to the service required of members of the division and incurred pursuant to or while the member was or shall be engaged in the performance of duties as a member of the division. Whenever the commissioner shall determine that any disabled member is ineligible to receive any of the aforesaid benefits at public expense, the commissioner shall, at the request of the disabled member, refer such matter to the board for hearing and final decision.
§7-14F-10. Same -- Due to other causes.
If any member while in active service of the division has or shall, in the opinion of the board, become permanently disabled to the extent that he or she cannot adequately perform the duties required of a member of the division from any cause other than those set forth in the preceding section and not due to vicious habits, intemperance or willful misconduct on his or her part, the member shall be retired by the board. There shall be paid to the member from the fund in equal monthly installments, commencing on the date the member shall be retired and continuing during the lifetime of the member; or until the member attains the age of fifty-five; while in status of retirement an amount equal to one-half the base salary received by the member in the preceding twelve-month period: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.

§7-14F-11. Same -- Physical examinations; recall to active duty; termination.

The board may require any member who has been or who shall be retired with compensation on account of disability to submit to a physical and/or mental examination by a physician or physicians selected or approved by the retirement board and cause all costs incident to such examination including hospital, laboratory, X ray, medical and physicians? fees to be paid out of funds appropriated to defray the current expenses of the division, and a report of the findings of such physician or physicians shall be submitted in writing to the board for its consideration. If from the report or from the report and hearing thereon the board shall be of opinion and find that the disabled member shall have recovered from such disability to the extent that he or she is able to perform adequately the duties of a member of the division, the board shall order the member to reassume active duty as a member of the division and thereupon all payments from the fund shall be terminated. If from the report or the report and hearing thereon, the board shall be of the opinion and find that the disabled member has recovered from the disability to the extent that he or she is able to engage in any gainful employment but unable to adequately perform the duties required as a member of the division, the board shall order in the case of a member retired under the provisions of section nine of this article that the disabled member be paid from the fund an amount equal to six tenths of the base salary paid to the member in the last twelve-month employment period. The board shall order in the case of a member retired under the provisions of section ten of this article that the disabled member be paid from the fund an amount equal to one fourth of the base salary paid to the member in the last twelve-month employment period: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit.

§7-14F-12. Awards and benefits to dependents of member -- When member dies in performance of duty, etc.; dependent child scholarship and amount.

The surviving spouse, the dependent child or children or dependent parent or parents of any member who has lost or shall lose his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while the member was or shall be engaged in the performance of his or her duties as a member of the division, or the survivor of a member who dies from any cause after having been retired pursuant to the provisions of section nine of this article, shall be entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime an amount equal to two thirds of the base salary received in the preceding twelve-month period by the deceased member: Provided, That if the member had not been employed with the division for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit.

In addition thereto, the surviving spouse shall be entitled to receive and there shall be paid to such person one hundred dollars monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the fund a sum equal to one fourth of the surviving spouse?s entitlement. If there are no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.

Any person qualifying as a surviving dependent child under this section shall, in addition to any other benefits due under this or other sections of this article, be entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding seven thousand five hundred dollars, shall be paid from the fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under such rules as the board may provide, and maintains scholastic eligibility as defined by the institution or the board. The board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.

Awards and benefits for a surviving spouse or dependents of a member received under any section or any of the provisions of this retirement system shall be in lieu of receipt of any benefits for these persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of state retirement benefits shall occur.

§7-14F-13. Same -- When member dies from nonservice-connected causes.

In any case where a member while in active service of the division, before having completed twenty years of service as a member of the division, has died or shall die from any cause other than those specified in this article and not due to vicious habits, intemperance or willful misconduct on his or her part, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the member during his or her lifetime, or until such time as the surviving spouse remarries, a sum equal to one half of the base salary received in the preceding twelve-month employment period by the deceased member: Provided, That if the member had not been employed with the division for twelve months prior to the disability, the amount of monthly salary shall be annualized for the purpose of determining the benefit. If there is no surviving spouse or the surviving spouse dies or remarries, there shall be paid monthly to each dependent child or children from the fund sum equal to one fourth of the surviving spouse?s entitlement. If there are no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount that a surviving spouse would have been entitled to receive: Provided, however, That when there is but one dependent parent surviving, then that parent shall be entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
§7-14F-14. Awards and benefits to dependents of member -- When member dies after retirement or after serving twenty years.

When any member of the division has completed twenty years of service or longer as a member of the division and has died or shall die from any cause or causes other than those specified in this article before having been retired by the board, and when a member in retirement status has died or shall die after having been retired by the board under the provisions of this article, there shall be paid annually in equal monthly installments from the fund to the surviving spouse of the member, commencing on the date of the death of the member and continuing during the lifetime or until remarriage of the surviving spouse, an amount equal to two thirds of the retirement benefit which the deceased member was receiving while in status of retirement, or would have been entitled to receive to the same effect as if the member had been retired under the provisions, of this article immediately prior to the time of his or her death. In no event shall the annual benefit payable be less than five thousand dollars. In addition thereto, the surviving spouse is entitled to receive and there shall be paid to the surviving spouse from the fund the sum of one hundred dollars monthly for each dependent child or children. If the surviving spouse dies or remarries, or if there is no surviving spouse, there shall be paid monthly from the fund to each dependent child or children of the deceased member a sum equal to one fourth of the surviving spouse's entitlement. If there is no surviving spouse or no surviving spouse eligible to receive benefits and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse without children would have been entitled to receive: Provided, That when there is but one dependent parent surviving, that parent shall be entitled to receive during his or her lifetime one half the amount which both parents, if living, would have been entitled to receive.

The member may choose a higher percentage of surviving spouse benefits by taking an actuarially determined reduced initial benefit so that the chosen spouse benefit and initial benefit would be actuarially equivalent to the normal spouse benefit and initial benefit. The retirement board shall design these benefit options and provide them as choices for the member to select. For the purposes of this subsection, "initial benefit" means the benefit received by the member upon retirement.
§7-14F-15. Exemption from taxation, garnishment and other process; exception for certain qualified domestic relations orders.

The moneys in the fund and the right of a member to a retirement allowance, to the return of contributions, or to any benefit under the provisions of this article, are hereby exempt from any state or municipal tax; shall not be subject to execution, garnishment, attachment or any other process whatsoever except that the benefits or contributions under this system shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans; and shall be unassignable except as is provided in this article.
§7-14F-16. Fraud; penalties.
Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record or records of the retirement system in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed one thousand dollars, or confinement in the county or regional jail not to exceed one year or both.

§7-14F-17. Awards and benefits to dependents of member -- Termination.

When any surviving spouse of a member shall die or remarry while receiving or being entitled to receive any benefits under any section except section twelve of this article, the surviving spouse may not from the date of his or her remarriage, nor may the estate from the date of death of the deceased member?s surviving spouse, be entitled to receive any benefits hereunder whatsoever: Provided, That in any case where under the terms of this article benefits are provided for a child or children surviving the death or remarriage of the surviving spouse, payment of benefits to that child or children shall be calculated for payment from the date the surviving spouse dies or remarries.
§7-14F-18. Authority to continue payments to certain dependents.
The board may continue payments of a surviving spouses entitlement in full to any dependent child who continues to be dependent by reason of mental or physical incapacity as determined by the board, notwithstanding the age of the dependent child or other provisions of this article.
§7-14F-19. Credit toward retirement for member?s prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) Any member who has previously served on active military duty is entitled to receive additional credited service for the purpose of determining the amount of retirement award under the provisions of this article for a period equal to the active military duty not to exceed five years, subject to the following:

(1) That he or she has been honorably discharged from the armed forces;

(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty;

(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty; and

(4) That, except with respect to disability retirement pay awarded under this article, he or she has actually served with the division for twenty years exclusive of his or her active military duty.

(b) In addition, any person who while a member of the division was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers? corps, was called to active duty in the armed forces between the first day of September, one thousand nine hundred forty, and the close of hostilities in World War II, or between the twenty-seventh day of June, one thousand nine hundred fifty, and the close of the armed conflict in Korea on the twenty-seventh day of July, one thousand nine hundred fifty-three, between the first day of August, one thousand nine hundred sixty-four, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the president, is entitled to and shall receive credit on the minimum period of service required by law for retirement pay from the service of the division of corrections, or its predecessor agency, for a period equal to the full-time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the armed forces subject to the following:

(1) That he or she has been honorably discharged from the armed forces;

(2) That within ninety days after honorable discharge from the armed forces, he or she presented himself or herself to the commissioner and offered to resume service as an active member of the division; and

(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.

(c) The total amount of military service credit allowable under this section may not exceed five years for any member of the division.

(d) Notwithstanding the preceding provisions of this section, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The retirement board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the retirement board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
§7-14F-20. Benefits not forfeited if system terminates.
If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of such termination or discontinuance, to the extent then funded, are not forfeited.

NOTE: The purpose of this bill is to create the West Virginia Division of Corrections Retirement System Act.

This article is new; therefore, strike-throughs and underscoring have been omitted.

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