§5-10-22c. Temporary early retirement incentives program; legislative declaration and finding of compelling state interest and public purpose; specifying eligible and ineligible members for incentives program; options, conditions, and exceptions; cer...


Published: 2015

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WEST VIRGINIA CODE











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WVC 5 - 10 - 22 C

§5-10-22c. Temporary early retirement incentives program;

legislative declaration and finding of compelling

state interest and public purpose; specifying

eligible and ineligible members for incentives

program; options, conditions, and exceptions;

certain positions abolished; special rule of

eighty; effective, termination, and notice dates.

The Legislature hereby finds and declares that a compelling

state interest exists in providing a temporary early retirement

incentives program for encouraging the early, voluntary retirement

of those public employees who were current, active contributing

members of this retirement system on the first day of April, one

thousand nine hundred eighty-eight, in the reduction of the number

of such employees and in reduction of governmental costs therefor;

that such program constitutes a public purpose; and that the

special classifications and differentiations provided in respect of

such program are reasonable and equitable ones for the

accomplishment of such purpose and program as enacted in Enrolled

Committee Substitute for H. B. No. 4672, regular session, one

thousand nine hundred eighty-eight, and as clarified and

supplemented herein, retroactive to such beginning date, aforesaid.

The Legislature further finds that maintaining an actuarially sound

retirement fund is a necessity and that the reemployment of persons

who retire under this section in any manner, including reemployment

on a contract basis, is contrary to the intent of the early retirement program and severely threatens the fiscal integrity of

the retirement fund.

(a) For the purposes of this section: (1) "Contract" means

any personal service agreement, not involving the sale of

commodities, that cannot be performed within sixty days or that

exceeds two thousand five hundred dollars in any twelve-month

period. The term "contract" does not include any agreement

obtained by a retirant through a bidding process and which is for

the furnishing of any commodity to a government agency and that

term does not include any person who retired under this section who

works as a contract employee for the Legislature when such

employment commences after the thirty-first day of December, one

thousand nine hundred ninety-nine: Provided, That such employment

may not exceed one hundred ten days; (2) "governmental entity"

means the state of West Virginia; a constitutional branch or office

of the state government, or any subdivision thereof; a county, city

or town in the state; a county board of education; a separate

corporation or instrumentality established pursuant to a state

statute; any other entity currently permitted to participate in any

state public retirement system or the public employees insurance

agency; or any officer or official of any entity listed above who

is acting in his or her official capacity; (3) "part-time elected

or appointed office" means any elected or appointed office that

pays annual compensation of less than two thousand five hundred

dollars or requires less than sixty days of service in any twelve-month period; (4) "substitute teacher" means a teacher,

public school librarian, registered professional nurse employed by

the county board of education or any other person employed for

counseling or instructional purposes in a public school in this

state who is temporarily fulfilling the duties of an existing real

person employed in a specific position who is temporarily absent

from that specified position.

(b) Beginning on the first day of April, one thousand nine

hundred eighty-eight, and continuing through the thirty-first day

of December, one thousand nine hundred eighty-eight (or as extended

by eligibility qualification requirement, as hereinafter

specified), eligible members, being those active, contributing

members actually and currently employed on such beginning date,

retiring pursuant to this section, and from any state, county or

municipal position, covered under the two divisions of this

retirement system (the state division and the public employer,

nonstate division) including those so employed on said beginning

date and leaving the system during the incentive period and who are

eligible for taking deferred retirement (but not disability

retirees) may elect to participate in this incentive program and

may elect any one of the three following incentive options:

(1) Retirement incentive option one:

For the purpose of computing the member's annuity, the normal

final average salary shall be computed and one-eighth thereof shall

be added thereto in arriving at the true final average salary for use in actual computation of retirement benefit.

(2) Retirement incentive option two:

A member may elect a lump sum payment, in addition to his or

her regular retirement annuity, equal to ten percent of his or her

final average salary not to exceed five thousand dollars, and in

the case of a deferred retirement electing this option, such lump

sum payment shall be receivable and deferred to the time of receipt

of such deferred retirement annuity.

(3) Retirement incentive option three:

A person shall be credited with an additional two years of

contributing service and an additional two years of age. The years

credited under this option shall in no way add to a member's final

average salary factor of computation.

Active, contributing members who desire to retire under this

section but who are unable to retire by the thirty-first day of

December, one thousand nine hundred eighty-eight, and make use of

the incentive retirement program because an element of eligibility

for retirement, such as age or other element, will not be met until

a date after the thirty-first day of December, one thousand nine

hundred eighty-eight, and before the first day of July, one

thousand nine hundred eighty-nine, shall be permitted to postpone

actual retirement until the date of fulfilling such element of

eligibility and shall retire on such date, before the temporary

retirement incentive program ends on the thirtieth day of June, one

thousand nine hundred eighty-nine, with proper credit to be granted for such extended period: Provided, That they shall have made

application for retirement, including choice of their respective

option, and given notice to their respective employer by the

thirty-first day of December, one thousand nine hundred

eighty-eight, although postponing actual retirement, as aforesaid.

(c) Any member participating in this retirement incentive

program is not eligible to accept further employment or accept,

directly or indirectly, work on a contract basis from any

governmental entity: Provided, That nothing in this section shall

affect any contract entered into prior to the effective date of

this section: Provided, however, That the executive director may

approve, upon written request and for good cause shown, an

exception allowing a retirant to perform work on a contract basis.

The executive director shall report all approved exceptions to the

board of trustees: Provided further, That a person may retire

under this section and thereafter serve in an elective office: And

provided further, That he or she shall not receive an incentive

option under this section during the term of service in said

office, but shall receive his or her annuity calculated on regular

basis, as if originally taken not under this section but on such

regular basis. At the end of such term and cessation of service

in such office during which the member shall rejoin and reenter the

retirement system and pay contributions therefor, such regular

annuity shall be recalculated and an increased annuity due to such

additional employment shall be granted and computed on regular basis and in similar manner as under section forty-eight of this

article. In respect of an appointive office, as distinguished

from an elective office, any person retiring under this section and

thereafter serving in such appointive office shall not receive an

incentive option under this section during the term of service in

said office, but the same shall be suspended during such period:

And provided further, That at the end of such term and cessation of

service in such appointive office the incentive option provided for

under this section shall be resumed: And provided further, That

any person elected or appointed to office by the state or any of

its political subdivisions who waives whatever salary, wage or per

diem compensation he or she may be entitled to by virtue of service

in such office and who does not receive any income therefrom except

such reimbursement of out-of-pocket costs and expenses as may be

permitted by the statutes governing such office shall continue to

receive an incentive option under this section. Such service shall

not be counted as contributed or credited service for purposes of

computing retirement benefits.

If such elected or appointed office is a part-time elected or

appointed office, a person electing retirement under this section

may serve in such elected or appointed office without a loss of the

benefits provided under this section.

Prior to the initiation or renewal of any contract entered

into pursuant to the provisions of this section or the acceptance

of any elective or appointive office by a person who has elected to retire under the early retirement provisions of this article, such

person shall complete a disclosure and waiver statement executed

under oath and acknowledged by a notary public. The board shall

promulgate rules, pursuant to chapter twenty-nine-a, of this code

regarding the form and contents of the disclosure and waiver

statement. The disclosure and waiver statement shall be forwarded

to the appropriate state public retirement system administrator who

shall take action to ensure that the early retirement incentive

benefits are reduced in accordance with the provisions of this

section. The administrator shall then certify such action in

writing to the appropriate governmental entity.

In any event, an eligible member may retire under this section

and thereafter continue to receive his or her incentive annuity and

be employed as a substitute teacher or as adjunct faculty.

Any such incentive retirants, under this section, may not

thereafter receive such annuity and enter or reenter any

governmental retirement system established or authorized to be

established by the state, notwithstanding any provision of the code

to the contrary, unless required by constitutional provision or as

hereby specifically permitted to those retiring and thereafter

serving in elective office, as aforesaid.

The additional annuity allowed for temporary early retirement

under these options, in respect of state division retirants of this

system, is intended to be paid from the retirement incentive

account hereby created as a special account in the state treasury and from the funds therein established with moneys required to be

transferred by heads of spending units from the unused portion of

salary and fringe benefits in their budgets accruing in respect of

such positions vacated and subsequently canceled under this

temporary early retirement program. Salary and fringe benefit

moneys actually saved in a particular fiscal year shall constitute

the fund source for payment of such additional annuity, the funds

of the retirement system to be used for payment of the base annuity

under the early retirement incentive program: Provided, That such

additional annuity shall be paid from the unused portion of both

salary and fringe benefits and with any remainder of any fringe

benefit moneys, as such, to remain with the spending unit and any

remainder of salary, as such, to be directed as additional funding

to the teachers retirement system and as a part of the assets

thereof. No such additional annuity shall be disallowed even

though initial receipts may not be sufficient, with funds of the

system to be applied for such purpose, as for the base annuity.

With respect to public employer division retirants (nonstate

division retirants of the system), such incentive annuity shall be

paid from the nonstate division funds of the system.

(d) The executive secretary of the retirement system shall

provide forms for applicants. Such forms shall include a detailed

description of the incentive plan options.

The executive secretary of the retirement system shall file a

report to the Legislature no later than the fifteenth day of February, one thousand nine hundred eighty-nine, and quarterly

thereafter, detailing the number of retirees who have elected to

accept early retirement incentive options, the dollar cost to date

by option selected, and the projected annual cost through the year

two thousand.

(e) Within every spending unit, department, board,

corporation, commission, or any other agency or entity wherein two

or multiples of two members elect to retire either under the

temporary early retirement incentives set forth above, or under

regular, voluntary retirement, and countable on an agency-wide or

entity-wide basis, no more than one of such vacated positions may

be filled, with the second position being abolished upon the

effective day of the member's retirement. The vacant position

abolishment requirement shall not apply to elective positions or

appointed public officers whose positions are established by state

constitutional or statutory provision. The retirant's employing

entity shall decide as to which of the vacated positions made

available through special early retirement or through regular,

voluntary retirement are to be abolished and the head of such

spending unit shall immediately notify the state auditor, the

legislative auditor, and the commissioner of the department of

finance and administration of the decisions and shall then apply

and/or transfer the remaining salary and fringe benefits as

aforesaid: Provided, That this vacant position abolishment

provision shall not apply to any county or municipal position except those under the authority of a county board of education,

nor to any position or positions, whether designated by spending

unit, department, agency, commission, entity or otherwise, which

the governor in respect of the executive branch, or the chief

justice of the supreme court of appeals in respect of the judicial

branch, or the president of the Senate or speaker of the House of

Delegates, in respect of the legislative branch, may exempt or

amend, under such abolishment provision, upon his or her respective

recommendation that such exemption or amendment is necessary to

provide for continuity of governmental operation or to preserve the

health, welfare or safety of the people of West Virginia, and with

the prior concurrence of the joint committee on government and

finance in such recommendation, after the chairmen thereof shall

cause such committee to meet.

(f) Special rule of eighty. -- Any active, contributing member

of the retirement system as of the first day of April, one thousand

nine hundred eighty-eight, who selects one of the incentive options

in this section, may retire under the special early retirement

provisions with full pension rights, without reduction of benefits

if the sum of such member's age plus years of contributing service

equals or exceeds eighty: Provided, That such person has at least

twenty years of contributing service; up to two years of which may

be military service, or prior service, or any combination thereof

not exceeding an aggregate of two years.

(g) Termination of temporary retirement incentives program. -- The right to elect, choose, select or use any of the options,

special rule of eighty, or other benefits set forth in this section

shall terminate on the thirtieth day of June, one thousand nine

hundred eighty-nine.

(h) The board shall promulgate rules and regulations in

accordance with the provisions of article three, chapter

twenty-nine of this code regarding the calculation of the amount of

incentive option that may be forfeited pursuant to the provisions

of subsection (b) of this section.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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