ENROLLED
Senate Bill No. 505
(By Senators Foster and Unger)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend and reenact §15-2-25a, §15-2-25b, §15-2-26,
§15-2-27, §15-2-27a, §15-2-28, §15-2-29, §15-2-30, §15-2-31,
§15-2-31a, §15-2-31b, §15-2-32, §15-2-33, §15-2-34, §15-2-35,
§15-2-37, §15-2-38, §15-2-39 and §15-2-44 of the Code of West
Virginia, 1931, as amended, all relating to the West Virginia
State Police Death, Disability and Retirement Fund; meaning of
terms; definitions; continuation of Death, Disability and
Retirement Fund; designating the Consolidated Public
Retirement Board as administrator of fund; retirement; awards
and benefits; leased employees; retirement annual annuity
adjustments; credit toward retirement for member's prior
military service; credit toward retirement when employee has
joined armed forces in time of armed conflict; qualified
military service; awards and benefits for disability incurred
in performance of duty; awards and benefits for disability due to other causes; disability physical examinations;
termination; application for disability benefit;
determinations; annual report on disability retirement
experience; retirant not to exercise police authority;
retention of group insurance; awards and benefits to
dependents of member when the member dies in performance of
duty; dependents of a duty disability retirant; dependent
child scholarship and amount; awards and benefits to
dependents of employee when the employee dies from
nonservice-connected causes; awards and benefits to dependents
of retirant or after employee serves twenty years; refunds to
certain employees upon discharge or resignation; deferred
retirement; refunds to dependents upon death of member not
eligible for benefits; dependent child or children; and
federal law maximum benefit limitations.
Be it enacted by the Legislature of West Virginia:
That §15-2-25a, §15-2-25b, §15-2-26, §15-2-27, §15-2-27a,
§15-2-28, §15-2-29, §15-2-30, §15-2-31, §15-2-31a, §15-2-31b,
§15-2-32, §15-2-33, §15-2-34, §15-2-35, §15-2-37, §15-2-38,
§15-2-39 and §15-2-44 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-25a. Meaning of terms.
Any term used in this article relating to the Death, Disability and Retirement Fund has the same meaning as when used in
a comparable context of the laws of the United States, unless a
different meaning is clearly required. Any reference in this
article to the Internal Revenue Code means the Internal Revenue
Code, as it has been amended.
§15-2-25b. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(a) "Agency" means the West Virginia State Police.
(b) "Beneficiary" means a surviving spouse or other surviving
beneficiary who is entitled to, or will be entitled to, an annuity
or other benefit payable by the fund.
(c) "Board" means the West Virginia Consolidated Public
Retirement Board created pursuant to article ten-d, chapter five of
this code.
(d) "Dependent child" means any unmarried child or children
born to or adopted by a member of the fund who is:
(1) Under the age of eighteen;
(2) After reaching eighteen years of age, continues as a
full-time student in an accredited high school, college,
university, business or trade school, until the child or children
reaches the age of twenty-three years; or
(3) Is financially dependent on the member by virtue of a
permanent mental or physical disability upon evidence satisfactory to the board.
(e) "Dependent parent" means the member's parent or
step-parent claimed as a dependent by the member for federal income
tax purposes at the time of the member's death.
(f) "Employee" means any person regularly employed in the
service of the agency as a law-enforcement officer before the
twelfth day of March, one thousand nine hundred nine-four, and who
is eligible to participate in the fund.
(g) "Fund", "plan" or "system" means the West Virginia State
Police Death, Disability and Retirement Fund.
(h) "Law-enforcement officer" means an individual employed or
otherwise engaged in either a public or private position which
involves the rendition of services relating to enforcement of
federal, state or local laws for the protection of public or
private safety, including, but not limited to, positions as deputy
sheriffs, police officers, marshals, bailiffs, court security
officers or any other law-enforcement position which requires
certification, but excluding positions held by elected sheriffs or
appointed chiefs of police whose duties are determined by the board
to be purely administrative in nature.
(i) "Member" means any person who has contributions standing
to his or her credit in the fund and who has not yet entered into
retirement status.
(j) "Partially disabled" means an employee's inability, on a probable permanent basis, to perform the essential duties of a
law-enforcement officer by reason of any medically determinable
physical or mental impairment which has lasted or can be expected
to last for a continuous period of not less than twelve months, but
which impairment does not preclude the employee from engaging in
other types of nonlaw-enforcement employment.
(k) "Physical or mental impairment" means an impairment that
results from an anatomical, physiological or psychological
abnormality that is demonstrated by medically accepted clinical and
laboratory diagnostic techniques.
(l) "Retirant" or "retiree" means any former member who is
receiving an annuity payable by the fund;
(m) "Surviving spouse" means the person to whom the member was
legally married at the time of the member's death and who survived
the member.
(n) "Totally disabled" means an employee's probable permanent
inability to engage in substantial gainful activity by reason of
any medically determined physical or mental impairment that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than twelve months. For
purposes of this subsection, an employee is totally disabled only
if his or her physical or mental impairments are so severe that he
or she is not only unable to perform his or her previous work as an
employee of the agency but also cannot, considering his or her age, education and work experience, engage in any other kind of
substantial gainful employment which exists in the state regardless
of whether: (1) The work exists in the immediate area in which the
employee lives; (2) a specific job vacancy exists; or (3) the
employee would be hired if he or she applied for work.
§15-2-26. Continuation of Death, Disability and Retirement Fund;
designating the Consolidated Public Retirement Board
as administrator of fund.
(a) There is continued the Death, Disability and Retirement
Fund created for the benefit of members, retirants and any
dependents of retirants or deceased members of the fund.
(b) There shall be deducted from the monthly payroll of each
employee and paid into the fund six percent of the amount of his or
her salary:
Provided, That beginning on the first day of July, one
thousand nine hundred ninety-four, there shall be deducted from the
monthly payroll of each employee and paid into the fund seven and
one-half percent of the amount of his or her salary:
Provided,
however, That on and after the first day of July, one thousand nine
hundred ninety-five, there shall be deducted from the monthly
payroll of each employee and paid into the fund nine percent of the
amount of his or her salary. An additional twelve percent of the
monthly salary of each employee shall be paid by the State of West
Virginia monthly into the fund out of the annual appropriation for
the agency:
Provided further, That beginning on the first day of July, one thousand nine hundred ninety-five, the agency shall pay
thirteen percent of the monthly salary of each employee into the
fund:
And provided further, That beginning on the first day of
July, one thousand nine hundred ninety-six, the agency shall pay
fourteen percent of the monthly salary of each employee into the
fund:
And provided further, That on and after the first day of
July, one thousand nine hundred ninety-seven, the agency shall pay
fifteen percent of the monthly salary of each employee into the
fund. There shall also be paid into the fund amounts that have
previously been collected by the superintendent of the agency on
account of payments to employees for court attendance and mileage,
rewards for apprehending wanted persons, fees for traffic accident
reports and photographs, fees for criminal investigation reports
and photographs, fees for criminal history record checks, fees for
criminal history record reviews and challenges or from any other
sources designated by the superintendent. All moneys payable into
the fund shall be deposited in the State Treasury and the board
shall keep a separate account thereof.
(c) Notwithstanding any other provisions of this article,
forfeitures under the fund shall not be applied to increase the
benefits any member would otherwise receive under the fund.
(d) The moneys in this 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 exempt from any state or municipal tax; are not subject to execution, garnishment,
attachment or any other process whatsoever, with the exception that
the benefits or contributions under the fund are 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 are unassignable except as is provided in
this article. The fund shall be administered by the board created
pursuant to article ten-d, chapter five of this code.
(e) All moneys paid into and accumulated in the fund, except
amounts designated or set aside by the awards, shall be invested by
the West Virginia Investment Management Board as provided by law.
§15-2-27. Retirement; awards and benefits; leased employees.
(a)
The board shall retire any member of the fund who has filed
with the board his or her voluntary petition in writing for
retirement and:
(1) Has or shall have completed twenty-five years of service
as a member of the fund (including military service credit granted
under the provisions of section twenty-eight of this article);
(2) Has or shall have attained the age of fifty years and has
or shall have completed twenty years of service as a member of the
fund (excluding military service credit granted under section
twenty-eight of this article); or
(3) Being under the age of fifty years has or shall have completed twenty years of service as a member of the fund
(excluding military service credit granted under section twenty-
eight of this article).
(b) When the board retires any member under any of the
provisions of this section, the member is entitled to receive
annually and shall be paid from the fund in equal monthly
installments during his or her lifetime while in status of
retirement, one or the other of two amounts, whichever is the
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the employee during the whole period of
service as an employee of the agency; or
(2) The sum of six thousand dollars.
When a member has or shall have served twenty years or longer
but less than twenty-five years as a member of the fund and is
retired under any of the provisions of this section before he or
she has attained the age of fifty years, payment of monthly
installments of the amount of retirement award to the member shall
commence on the day following the date he or she attains the age of
fifty years.
Beginning on the fifteenth day of July, one thousand
nine hundred ninety-four, in no event may the provisions of section
thirteen, article sixteen, chapter five
of this code be applied in
determining eligibility to retire with either immediate or deferred
commencement of benefit.
(c) A member meeting the age and service requirements of this
section who terminates employment at two thousand four hundred
hours may begin to receive retirement annuity payments immediately
upon termination of employment. Any member meeting the age and
service requirements of this section who terminates employment at
a time of day other than two thousand four hundred hours shall
receive a pro rata share of a full day's amount for that day. Upon
receipt of properly executed forms from the agency and the member,
the board shall process the member's retirement petition and
commence annuity payments as soon as administratively feasible.
(d) Any individual who is a leased employee is not eligible to
participate in the fund. For purposes of this fund, 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.
§15-2-27a. Retirement annual annuity adjustments.
(a) Every retirant of the fund who is fifty-five years of age
or older and who is retired by the board under the provisions of
section twenty-seven of this article; every retirant of the fund
who is retired by the board under the provisions of section twenty-
nine or thirty of this article; and every beneficiary receiving a
benefit pursuant to section thirty-three or thirty-four 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 beneficiary award. The adjustments
may not be retroactive. Yearly adjustments shall begin upon the
first day of July of each year. The annuity adjustments shall be
paid to the retirants or beneficiaries from the fund in equal
monthly installments while in status of retirement or payment of
beneficiary award. The annuity adjustments shall supplement the
retirement awards and benefits as provided in this article.
(b) Any retirant or beneficiary who receives a benefit
pursuant to the provisions of section twenty-nine, thirty,
thirty-three or thirty-four 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 retirant
has been retired for less than one year or if the beneficiary has
been in receipt of beneficiary payments for less than one year when
the first annuity adjustment is given on that July first, that
first annuity adjustment shall be a pro rata share of the full
year's annuity adjustment.
§15-2-28. Credit toward retirement for member's prior military
service; credit toward retirement when employee has
joined armed forces in time of armed conflict;
qualified military service.
(a) For purposes of this section, the term "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
employee has been called to active full-time duty and has received
no compensation during the period of the duty from any person other
than the armed forces.
(b) Any member of the fund who has previously served on active
military duty is entitled to and shall receive credit on the
minimum period of service required by law for retirement pay from
the service of the West Virginia State Police 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 not receiving credit from any other
retirement system administered by the board for his or her active
military duty; and
(4) That, except with respect to disability retirement pay
awarded under section thirty of this article, he or she has
actually served with the fund for twenty years exclusive of his or
her active military duty.
(c) The amount of retirement pay to which any member is
entitled shall be calculated and determined as if he or she had
been receiving for the period of his or her active military duty a
monthly salary from the agency equal to the average monthly salary
which he or she actually received from the agency for his or her
total service with the agency exclusive of the active military
duty. The superintendent shall transfer and pay into the fund from
moneys appropriated for the agency, a sum equal to eighteen percent
of the aggregate of the salaries on which the retirement pay of all
members has been calculated and determined for their periods of
active military duty. In addition, any person who, while an
employee of the agency 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 the 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 West Virginia State Police for a period equal to
the full time he or she has or shall, pursuant to the commission,
enlistment, induction or call, 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 has presented himself or herself to the
superintendent and offered to resume service as an active employee
of the agency; 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.
(d) That amount of retirement pay to which any employee is
entitled shall be calculated and determined as if the employee has
continued in the active service of the agency at the rank or grade
to him or her appertaining at the time of the commission,
induction, enlistment or call, during a period coextensive with the
time the employee served with the armed forces pursuant to the
commission, induction, enlistment or call. The superintendent of the agency shall transfer and pay each month into the fund from
moneys appropriated for the agency a sum equal to eighteen percent
of the aggregate of salary which all employees would have been
entitled to receive had they continued in the active service of the
agency during a period coextensive with the time the employee
served with the armed forces pursuant to the commission, induction,
enlistment or call: Provided, That the total amount of military
service credit allowable under this section shall not exceed five
years.
(e) Notwithstanding any of 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 board may
determine all questions and make all decisions relating to this
section and, pursuant to the authority granted to the 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.
§15-2-29. Awards and benefits for disability incurred in
performance of duty.
(a) Any member of the fund who has not yet entered retirement
status on the basis of age and service and who becomes partially disabled by injury, illness or disease resulting from any
occupational risk or hazard inherent in or peculiar to the services
required of employees of the agency or incurred pursuant to or
while the employee was engaged in the performance of his or her
duties as an employee of the agency shall, if, in the opinion of
the board, he or she is by reason of that cause probably
permanently unable to perform adequately the duties required of him
or her as an employee of the agency, but is able to engage in any
other gainful employment in a field other than law enforcement, be
retired from active service by the board. The member thereafter is
entitled to receive annually from the fund in equal monthly
installments during his or her lifetime; or until the disability
eligibility sooner terminates, one or the other of two amounts,
whichever is greater:
(1) An amount equal to five and one-half percent of the total
salary which would have been earned during twenty-five years, or
during actual service if more than twenty-five years in the fund,
based on the average earnings of the retirant while employed as an
employee of the agency; or
(2) The sum of six thousand dollars.
(b) A retirant who is partially disabled under this article
may not, while in receipt of benefits for partial disability, be
employed as a law-enforcement officer: Provided, That a retirant
retired on partial disability under this article may serve as an elected sheriff or appointed chief of police in the state without
a loss of disability retirement benefits so long as the elected or
appointed position is shown, to the satisfaction of the board, to
require the performance of administrative duties and functions
only, as opposed to the full range of duties of a law-enforcement
officer.
(c) If any member not yet in retirement status on the basis of
age and service is found by the board to be permanently and totally
disabled as the result of a physical or mental impairment resulting
from any occupational risk or hazard inherent in or peculiar to the
services required of employees of the agency or incurred pursuant
to or while the member was engaged in the performance of his or her
duties as an employee of the agency, the member is entitled to
receive annually and there shall be paid from the fund in equal
monthly installments during his or her lifetime or until the
disability eligibility sooner terminates, an amount equal to eight
and one-half percent of the total salary which would have been
earned by the employee during twenty-five years, or during actual
service if more than twenty-five years of service in the fund,
based on the average earnings of the retirant while employed as an
employee of the agency: Provided, That in no event may the amount
be less than fifteen thousand dollars per annum, unless otherwise
required by this article.
(d) The superintendent may expend moneys from funds appropriated for the agency 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 or disability retirant who has
or becomes 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 employees of the
agency or incurred pursuant to or while the member was or shall be
engaged in the performance of duties as an employee of the agency.
Whenever the superintendent determines that any disabled member or
retirant is ineligible to receive any of the aforesaid benefits at
public expense, the superintendent shall, at the request of the
disabled member or retirant, refer the matter to the board for
hearing and final decision. In no case will the compensation
rendered to health care providers for medical and hospital services
exceed the then current rate schedule approved by the West Virginia
Insurance Commission.
(e) Any member awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and
receipt of properly executed forms from the agency and the member,
the board shall process the member's disability retirement benefit and commence annuity payments as soon as administratively feasible.
(f) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-30. Awards and benefits for disability due to other causes.
(a) If any employee who has served less than twenty years and
who remains in the active service of the agency has, in the opinion
of the board, become permanently partially or totally disabled to
the extent that the employee cannot adequately perform the duties
required of an employee of the agency 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
employee shall be retired by the board. The employee is entitled to
receive annually and shall be paid from the fund in equal monthly
installments during a period equal to one-half the time he or she
served as an employee of the agency or until the disability
eligibility sooner terminates, a sum equal to five and one-half
percent of the total salary which would have been earned during
twenty-five years of service. At the end of the one-half time
period of service, the benefit payable for the remainder of the
retirant's life is an annual sum paid in monthly installments equal
to one-half the base salary received by the retirant from the
agency in the preceding twelve-month period immediately prior to
the disability award: Provided, That if the retirant was not
employed with the agency for twelve months immediately prior to the disability award, the amount of monthly salary shall be annualized
for the purpose of determining the benefit.
(b) If the employee, at the time of retirement under the terms
of this section, has served twenty years or longer as an employee
of the agency, the employee is entitled to receive annually and
shall be paid from the fund in equal monthly installments,
commencing on the date the employee is retired and continuing
during his or her lifetime while in status of retirement or until
the disability eligibility sooner terminates, a sum equal to five
and one-half percent of the aggregate of salary paid to the
retirant through the day immediately preceding his or her
disability award, to be determined in the manner provided by
subsection (c), section twenty-seven of this article.
(c) An employee awarded a disability benefit under the
provisions of this section may receive retirement disability
annuity payments on the day following the board's approval of his
or her disability application. Upon termination of employment and
receipt of properly executed forms from the agency and the
employee, the board shall process the disability retirement benefit
and commence annuity payments as soon as administratively feasible.
(d) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-31. Disability physical examinations; termination.
The board may require any retirant who has been 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 board and cause all costs incident to the
examination including hospital, laboratory, X ray, medical and
physicians' fees to be paid out of funds appropriated to defray the
current expense of the agency and a report of the findings of the
physician or physicians shall be submitted in writing to the board
for its consideration. If, from the report or from the report and
hearing on the report, the board is of the opinion and finds that
the disabled retirant has recovered from the disability to the
extent that he or she is able to perform adequately the duties of
a law-enforcement officer, the board shall order that all payments
from the fund to that disabled retirant be terminated. If, from the
report or the report and hearing on the report, the board is of the
opinion and finds that the disabled retirant has recovered from his
or her previously determined probable permanent disability to the
extent that he or she is able to engage in gainful employment but
remains unable to adequately perform the duties of a law-
enforcement officer, the board shall order the payment, in monthly
installments of an amount equal to two thirds of the salary, in the
case of a retirant retired under the provisions of section twenty-
nine of this article or equal to one half of the salary, in the
case of a retirant retired under the provisions of section thirty
of this article, excluding any compensation paid for overtime service, for the twelve-month employment period immediately
preceding the disability award: Provided, That if the retirant had
not been employed with the fund for twelve months immediately prior
to the disability award, the amount of monthly salary shall be
annualized for the purpose of determining the benefit.
§15-2-31a. Application for disability benefit; determinations.
(a) Application for a disability benefit may be made by a
member under the provisions of section twenty-nine of this article,
by an employee under the provisions of section thirty of this
article or, if the member or employee is under an incapacity, by a
person acting with legal authority on the member's or the
employee's behalf. After receiving an application for a disability
benefit, the board shall notify the superintendent of the agency
that an application has been filed: Provided, That when, in the
judgment of the superintendent, an employee is no longer physically
or mentally fit for continued duty as an employee of the West
Virginia State Police and the employee has failed or refused to
make application for disability benefits under this article, the
superintendent may petition the board to retire the employee on the
basis of disability pursuant to rules which may be established by
the board. Within thirty days of the superintendent's receipt of
the notice from the board or the filing of the superintendent's
petition with the board, the superintendent shall forward to the
board a statement certifying the duties of the employee's employment, information relating to the superintendent's position
on the work relatedness of the employee's alleged disability,
complete copies of the employee's medical file and any other
information requested by the board in its processing of the
application, if this information is requested timely.
(b) The board shall propose legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code relating to the processing of applications and petitions for
disability retirement under this article.
(c) The board shall notify the member and the superintendent
of its final action on the disability application or petition
within ten days of the board's final action. The notice shall be
sent by certified mail, return receipt requested. If either the
member or the superintendent is aggrieved by the decision of the
board and intends to pursue judicial review of the board's decision
as provided in section four, article five, chapter twenty-nine-a of
this code, the party so aggrieved shall notify the board within
twenty days of the member's or superintendent's receipt of the
board's notice that they intend to pursue judicial review of the
board's decision.
(d) (1) The board shall require each disability benefit
recipient to file an annual certified statement of earnings, to
include the amount and source of earnings and any other information
required in legislative rules which may be proposed by the board. The board may waive or modify the requirement that a recipient of
total disability benefits file the annual statement of earnings if
the board's physician certifies that the recipient's disability is
ongoing. The board shall annually examine the information submitted
by each recipient. If a disability retirant refuses to file a
statement and other information required by the board, the
disability benefit shall be suspended, after notice and opportunity
to be heard, until the statement and information are filed.
(2) The board shall annually examine any information available
from the State Tax Commissioner on all recipients of disability
benefits pursuant to article ten, chapter eleven of this code.
(e) (1) A nonblind recipient earning annual income exceeding
the equivalent of eight hundred sixty dollars per month in the year
two thousand six, after impairment-related work expenses are
subtracted from earnings, has engaged in substantial gainful
activity. A statutorily blind recipient has engaged in substantial
gainful activity in the year two thousand six if the recipient has
earned annual income exceeding the equivalent of one thousand four
hundred fifty dollars per month after impairment-related work
expenses are subtracted from earnings.
(2) The substantial gainful activity dollar limit shall be
automatically adjusted annually to correspond to the dollar limit
as established and published by the United States Social Security
Administration for each year in accordance with methods published in the Federal Register (FR6582905 December 29, 2000) and similar
methods used by the Social Security Administration applying the
average annual wage index.
(3) If after review of a disability retirant's annual
statement of earnings, tax records or other financial information,
as required or otherwise obtained by the board, the board
determines that earnings of the recipient of total disability
benefits in the preceding year are sufficient to show that the
recipient engaged in substantial gainful activity, the disability
retirant's disability annuity shall be terminated by the board,
upon recommendation of the board's disability review committee and
after notice and opportunity to be heard, on the first day of the
month following the board's action.
(4) If the board obtains information that a recipient of
partial disability benefits is employed as a law-enforcement
officer, upon recommendation of the board's disability review
committee and after notice and an opportunity to be heard, the
board shall terminate the recipient's disability benefits on the
first day of the month following the board's action.
(f) Any person who wishes to reapply for disability retirement
and whose disability retirement has been terminated by the board
pursuant to this section may do so within ninety days of the
effective date of termination: Provided, That any person reapplying
for disability benefits shall undergo an examination at the applicant's expense by an appropriate medical professional selected
by the board as part of the reapplication process.
(g) Notwithstanding other provisions in this section, any
person whose disability retirement has been terminated by the board
pursuant to this section may apply for regular retirement benefits
upon meeting the eligibility requirements of age and years of service.
§15-2-31b. Annual report on disability retirement experience.
Not later than the first day of January, two thousand six, and
each first day of January thereafter, the board shall prepare a
report for the preceding fiscal year of the disability retirement
experience of the West Virginia State Police Death, Disability and
Retirement Fund. The report shall specify the total number of
disability applications submitted, the status of each application
as of the last day of the fiscal year, total applications granted
or denied, and the percentage of disability benefit recipients to
the total number of West Virginia State Police employees who are
members of the fund. The report shall be submitted to the Governor
and the chairpersons of the standing committees of the Senate and
House of Delegates with primary responsibility for retirement
legislation.
§15-2-32. Retirant not to exercise police authority; retention of
group insurance.
A retirant may not exercise any of the powers conferred upon
active employees by section twelve of this article; but is entitled to receive free of cost to the retirant and retain as his or her
separate property one complete standard uniform prescribed by
section ten of this article: Provided, That the uniform may be worn
by a retirant on occasions prescribed by the superintendent. The
superintendent shall maintain at public expense for the benefit of
all retirants that group life insurance mentioned in section ten of
this article. The superintendent, when he or she is of opinion that
the public safety shall require, may recall to active duty during
any period determined by the superintendent, any retiree who is
retired under the provisions of section twenty-seven of this
article, provided the consent of the retiree to reassume duties of
active membership shall first be obtained. Any retirant who resumes
status of active membership is not entitled to receive retirement
pay or benefits, but in lieu thereof, is entitled to receive that
rate of salary and allowance pertinent to the rank or grade
previously held by the retirant. When the former retirant is
released from active duty, he or she shall reassume the status of
retirement and shall be entitled to receive appropriate benefits as
provided by this article: Provided, That the amount of the benefits
shall in no event be less than the amount determined by the order
of the board previously made in his or her behalf.
§15-2-33. Awards and benefits to dependents of member when the
member dies in performance of duty; to dependents of
a duty disability retirant; dependent child scholarship and amount.
(a) The surviving spouse or the dependent child or children or
dependent parent or parents of any member who has lost or loses 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 employees while the member was or is engaged in
the performance of his or her duties as an employee of the agency,
or if a retirant dies from any cause after having been retired
pursuant to the provisions of section twenty-nine of this article,
the surviving spouse or other dependent is 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 the greater of one or the other of two amounts:
(1) An amount equal to five and one-half percent of the total
salary which was or would have been earned by the deceased member
or duty disability retirant during twenty-five years of service
based on the average earnings of the member or duty disability
retirant while employed by the agency; or
(2) The sum of six thousand dollars.
(b) In addition, the surviving spouse is entitled to receive
and shall be paid 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 twenty-five percent of the surviving spouse's entitlement. If there is 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 or retirant during their
joint lifetimes a sum equal to the amount which a surviving spouse,
without children, would have received: Provided, That when there is
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.
(c) Any person qualified as a surviving dependent child under
this section, in addition to any other benefits due under this or
other sections of this article, is 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 those institutions so long as the
recipient makes application to the board on an approved form and
under rules as provided by the board 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.
(d) A surviving spouse or dependent of an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day following the date the deceased employee
is removed from payroll by the agency. A surviving spouse or
dependent of a member who is not currently an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day following the date of the deceased
member's death. A surviving spouse or dependent of a retirant
meeting the requirements of this section is entitled to receive
beneficiary payments on the first day of the month following the
date of the deceased retirant's death. Upon receipt of properly
executed forms from the agency and the surviving spouse or
dependent, the board shall process the surviving spouse or
dependent benefit as soon as administratively feasible.
(e) For the purposes of this section, the term "salary" does
not include any compensation paid for overtime service.
§15-2-34. Awards and benefits to dependents of employee when the
employee dies from nonservice-connected causes.
(a) If an employee of the agency, before having completed
twenty years of service as an employee of the agency, dies 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 employee during his or
her lifetime, or until such time as the surviving spouse remarries,
a sum equal to two and three-quarters percent of the total salary
which would have been earned by the employee during twenty-five
years of service with the agency based on his or her average
earnings while employed with the agency. 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, a
sum equal to twenty-five percent of the surviving spouse's
entitlement. If there is 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
employee during their joint lifetimes, a sum equal to the amount
which a surviving spouse would have been entitled to receive:
Provided, That when there is only 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.
(b) A surviving spouse or dependent meeting the requirements
of this section is entitled to receive beneficiary payments on the
first day following the date the deceased employee is removed from
payroll by the agency. Upon receipt of properly executed forms from
the agency and the surviving spouse or dependent, the board shall process the surviving spouse or dependent benefit as soon as
administratively feasible.
(c) For the purposes of this section, the term "salary" does
not include compensation paid for overtime service.
§15-2-35. Awards and benefits to dependents of retirant or after an
employee serves twenty years.
(a) When any employee of the agency has completed twenty years
of service or longer as an employee of the agency and has died or
dies from any cause or causes other than those specified in this
article before having been retired by the board, and when a
retirant has died or dies 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 employee or retirant during the lifetime or until remarriage
of the surviving spouse, an amount equal to three-fourths the
retirement benefits the deceased retirant was receiving or would
have been entitled to receive while in status of retirement, or
would have been entitled to receive to the same effect as if the
employee had been retired under the provisions of this article
immediately prior to the time of his or her death and in no event
to be less than five thousand dollars, unless otherwise required
under this article, and in addition the surviving spouse shall be
entitled to receive and shall be paid 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 employee or retirant a sum equal
to twenty-five percent 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 employee or retirant 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 only one dependent parent surviving, the 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.
(b) A surviving spouse or dependent of an employee meeting the
requirements of this section is entitled to receive beneficiary
payments on the first day following the date the deceased employee
is removed from payroll by the agency. A surviving spouse or
dependent of a retirant meeting the requirements of this section is
entitled to receive beneficiary payments on the first day of the
month following the date of the deceased retirant's death. Upon
receipt of properly executed forms from the agency and the
surviving spouse or dependent, the board shall process the
surviving spouse or dependent benefit as soon as administratively feasible.
§15-2-37. Refunds to certain employees upon discharge or
resignation; deferred retirement.
(a) Any employee who is discharged by order of the
superintendent or otherwise terminates employment with the agency,
at the written request of the member to the board, is entitled to
receive from the fund a sum equal to the aggregate of the principal
amount of moneys deducted from his or her salary and paid into the
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
reemployed by the agency shall not receive any prior service credit
in the fund on account of former service. The employee may
redeposit in the fund established in article two-a of this chapter
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. He or she shall become a member of the
retirement system established in article two-a of this chapter.
(c) Every employee who completes ten years of service with the
agency is eligible, upon separation of employment, either to
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 is
eligible to receive a retirement annuity. Any member choosing to
receive the deferred annuity under this subsection is not eligible
to receive the annual annuity adjustment provided in section
twenty-seven-a of this article. When the board retires any member
under any of the provisions of this section, the member is entitled
to receive annually and shall be paid from the fund in equal
monthly installments during the lifetime of the member while in
status of retirement one or the other of two amounts, whichever is
greater:
(1) An amount equal to five and one-half percent of the
aggregate of salary paid to the employee during the whole period of
service as an employee of the agency; or
(2) The sum of six thousand dollars.
(d) A member may choose, in lieu of a life annuity available
under the provisions of subsection (c) of this section, an annuity
in a reduced amount payable during the member's lifetime, with one
half of the reduced monthly amount paid to his or her surviving
spouse, for the spouse's remaining lifetime after the death of the
retirant. Reduction of this monthly benefit amount shall be
calculated to be of equal actuarial value to the life annuity the
member could otherwise have chosen.
(e) A member retiring under the provisions of this section may receive retirement annuity payments on the day following his or her
attaining age sixty-two. Upon receipt of properly executed forms
from the agency and the member, the board shall process the
member's retirement benefit and commence annuity payments as soon
as administratively feasible.
§15-2-38. Refund to dependents upon death of member not eligible
for benefits.
If any member dies
and the board
is of the opinion after
hearing that the dependent or dependents of the member are
ineligible under the provisions of this article to receive any of
the benefits provided herein, the board shall refund to the spouse,
if surviving, but if not surviving, to the children of the member,
and if there is no surviving spouse or children, to the dependent
parents, a sum equal to the aggregate of the principal amount of
all moneys deducted from the salary of the member and paid into the
fund. If there is no surviving spouse or children or dependent
parent or parents, then a sum equal to the aggregate of the
principal amount of all moneys deducted from the salary of the
member and paid into the fund will be paid to the member's estate.
Whenever a refund is made to the surviving spouse or other
dependents of the deceased member, the surviving spouse or other
dependents shall not be entitled to any other rights or benefits
from the fund.
§15-2-39. Dependent child or children.
In any case where under the terms of this article benefits are
provided for dependent child or children, the benefits shall be
paid for so long as they continue to meet the qualifications
provided under the provisions of this article.
§15-2-44. Federal law maximum benefit limitations.
Notwithstanding any other provision of this article or state
law, the board shall administer the fund in compliance with the
limitations of Section 415 of the Internal Revenue Code and
regulations under that section to the extent applicable to
governmental plans so that no annuity or other benefit provided
under this fund shall exceed those limitations. The extent to which
any annuity or other benefit payable under this fund 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 determined by the board in a manner that shall maximize the
aggregate benefits payable to the member. If the reduction is under
this fund, the board shall advise affected members or retirants of
any additional limitation on the annuities required by this
section.
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