Chapter 5. General Powers And Authority Of The Governor, Secretary Of State And Attorney General; Board Of Public Works; Miscellaneous Agencies, Commissions, Offices, Programs, Etc


Published: 2015

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WEST VIRGINIA CODE











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WVC 5-

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

WVC -10A-

ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.







WVC 5-10A-1

§5-10A-1. Findings and declarations.

The Legislature finds and declares that every retirement plan

instituted and created under the laws of this state has from the

inception thereof contemplated and each now contemplates that the

service rendered by any participating public officer or employee

shall at all times be honorable. The Legislature further finds and

declares that honorable service is a condition to receiving any

pension, annuity, disability payment or any other benefit under a

retirement plan.







WVC 5 - 10 A- 2

§5-10A-2. Definitions.

     As used in this article:

     (a) "Retirement plan" or "plan" means the Public Employees

Retirement Act pursuant to article ten of this chapter; each

municipal employees retirement plan pursuant to article twenty-two,

chapter eight of this code; each policemen's and firemen's pension

and relief fund pursuant to article twenty-two, chapter eight of

this code; the West Virginia Municipal Police Officers and

Firefighters Retirement System pursuant to article twenty-two-a,

chapter eight of this code; the West Virginia State Police Death,

Disability and Retirement Fund pursuant to article two, chapter

fifteen of this code; the West Virginia State Police Retirement

System pursuant to article two-a, chapter fifteen of this code; the

State Teachers Retirement System pursuant to article seven-a,

chapter eighteen of this code; the Teachers' Defined Contribution

Retirement System pursuant to article seven-b, chapter eighteen of

this code; the Deputy Sheriff Retirement System pursuant to article

fourteen-d, chapter seven of this code; the higher education

retirement plan and supplemental retirement plans pursuant to

section four-a, article twenty-three, chapter eighteen of this

code; the Judges' Retirement System pursuant to article nine,

chapter fifty-one of this code; the West Virginia Emergency Medical

Services Retirement System pursuant to article five-v, chapter

sixteen of this code; and any other plan established pursuant to

this code for the payment of pension, annuity, disability or other benefits to any person by reason of his or her service as an

officer or employee of this state or of any political subdivision,

agency or instrumentality thereof, whenever the plan is supported,

in whole or in part, by public funds.

     (b) "Beneficiary" means any person eligible for or receiving

benefits on account of the service for a public employer by a

participant or former participant in a retirement plan.

     (c) "Benefits" means pension, annuity, disability or any other

benefits granted pursuant to a retirement plan.

     (d) "Conviction" means a conviction on or after the effective

date of this article in any federal or state court of record

whether following a plea of guilty, not guilty or nolo contendere

and whether or not the person convicted was serving as an officer

or employee of a public employer at the time of the conviction.

     (e) "Former participant" means any person who is no longer

eligible to receive any benefit under a retirement plan because

full distribution has occurred.

     (f) "Less than honorable service" means:

     (1) Impeachment and conviction of a participant or former

participant under the provisions of section nine, article four of

the Constitution of West Virginia, except for a misdemeanor;

     (2) Conviction of a participant or former participant of a

felony for conduct related to his or her office or employment which

he or she committed while holding the office or during the

employment; or

     (3) Conduct of a participant or former participant which

constitutes all of the elements of a crime described in either

subdivision (1) or (2) of this subsection but for which the

participant or former participant was not convicted because: (i)

Having been indicted or having been charged in an information for

the crime, he or she made a plea bargaining agreement pursuant to

which he or she pleaded guilty to or nolo contendere to a lesser

crime: Provided, That the lesser crime is a felony containing all

the elements described in subdivision (1) or (2) of this

subsection; or (ii) having been indicted or having been charged in

an information for the crime, he or she was granted immunity from

prosecution for the crime.

     (g) "Participant" means any person eligible for or receiving

any benefit under a retirement plan on account of his or her

service as an officer or employee for a public employer.

     (h) "Public employer" means the State of West Virginia and any

political subdivision, agency or instrumentality thereof for which

there is established a retirement plan.

     (i) "Supervisory board" or "board" means the Consolidated

Public Retirement Board; the board of trustees of any municipal

retirement fund; the board of trustees of any policemen's or

firemen's retirement plan; the governing board of any supplemental

retirement plan instituted pursuant to authority granted by the

previous provisions of section four-a, article twenty-three,

chapter eighteen of this code; and any other board, commission or public body having the duty to supervise and operate any retirement

plan.







WVC 5 - 10 A- 3

§5-10A-3. Notice of intention to terminate benefits; waiver;

failure to reply.

(a) Whenever a supervisory board, upon receipt of a verified

complaint or otherwise, has reasonable cause to believe that a

participant or former participant rendered less than honorable

service as defined in section two of this article, it shall notify

the affected participant, former participant or beneficiary that it

believes that the participant or former participant rendered less

than honorable service and that the participant, former participant

or beneficiary is thereby ineligible to receive benefits. A

supervisory board may not issue a notice:

(1) If more than two years have elapsed since the judgment of

conviction upon which the notice is based became final; or

(2) In cases described in subdivision (3), subsection (f),

section two of this article, if more than two years have elapsed

since, as the case may be: The plea bargaining agreement or the

grant of immunity; or

(3) With respect to conduct which occurred prior to the

effective date of this article.

(b) The notice shall contain a concise statement of the

reasons why the board believes that the participant or former

participant rendered less than honorable service and shall be made

either by personal service or by certified mail, return receipt

requested, to the address which the participant, former participant

or beneficiary maintains for purposes of corresponding with the board. If notice is made by certified mail, service shall be

considered complete upon mailing and a completed receipt

constitutes proof of the receipt of the notice. The notice shall

inform the participant, former participant or beneficiary that he

or she has the right to demand that the board seek a determination

in circuit court of his or her eligibility for benefits and

membership in the retirement plan by notifying the board of the

demand within forty days. The notice shall also inform the

participant, former participant or beneficiary that the board will

terminate the benefits in accordance with section four of this

article and refund the participant's or former participant's

contributions with interest, less benefits previously paid as

provided in section six of this article if the participant, former

participant or beneficiary either waives the right to demand that

the board take the matter before the circuit court or fails to

respond to the board's notice within forty days after service.







WVC 5 - 10 A- 4

§5-10A-4. Determination by circuit court of ineligibility;

jurisdiction; appeal.

(a) If a participant, former participant or beneficiary

informs the supervisory board within forty days after service of

the notice as provided in section three of this article that he or

she demands that the board seek a determination in circuit court,

the board shall immediately file a petition in the circuit court in

the county in which the board is located or in which the

participant, former participant or beneficiary resides seeking that

the court determine that the participant or former participant

rendered less than honorable service as defined in section two of

this article and that the affected participant, former participant

or beneficiary is thereby ineligible to receive benefits. The

circuit courts have jurisdiction to make the determinations.

(b) Upon the filing of a petition by a supervisory board, the

circuit court shall give to the affected parties notice and an

opportunity to be heard consistent with the demands of due process

and necessary for a fair determination of the matter. Upon

completion of its hearings the court shall make such findings of

fact and conclusions of law as are appropriate. Except in the case

of exigent circumstances, the court shall make its determination

within sixty days of the filing of the petition by the board.

(c) A determination of the circuit court shall be a final

order which may be appealed to the Supreme Court of Appeals in the

same manner as decisions in other civil actions.







WVC 5 - 10 A- 5

§5-10A-5. Termination of benefits.

(a) The board shall terminate a participant's, former

participant's or beneficiary's membership in any and all plans in

which he or she is or has been a member and shall not thereafter

pay any benefits to the participant, former participant or his or

her beneficiaries if an affected participant, former participant or

beneficiary either waives the right to demand that the board seek

a determination of eligibility in circuit court as set forth in

section three of this article or fails to respond to the notice

within forty days after service thereof as set forth in said

section or if a circuit court has determined that the participant

or former participant rendered less than honorable service in

accordance with section four of this article: Provided, That this

article does not authorize the termination of benefits received by

a beneficiary that are received as a result of the beneficiary's

own membership in a plan or the beneficiary's status as a

beneficiary of a member other than the participant or former

participant.

(b) If the participant or former participant is deceased and

there are two or more beneficiaries at least one of whom has given

the board timely notice that he or she wishes to exercise the right

to demand that the board seek a determination of eligibility in

circuit court, the board shall take the action as provided in this

section with respect to all the beneficiaries only upon a

determination by the court that the participant or former participant has rendered less than honorable service.







WVC 5 - 10 A- 6

§5-10A-6. Refund of contributions.

     The supervisory board shall refund to a participant or

beneficiary terminated from benefits by section five of this

article the contributions of the participant in the same manner and

with the same interest as provided to those participants or

beneficiaries otherwise eligible to withdraw the participant's

contributions under the retirement plan, less the amount of any

benefits which the participant or his or her beneficiaries have

previously received: Provided, That a member of the Teachers'

Defined Contribution Retirement System whose benefits have been

terminated pursuant to section five of this article shall be

refunded only his or her employee contributions and the earnings on

those contributions; and any vested employer contributions shall

remain in the Teachers' Defined Contribution Retirement System and

be used to offset future employer contributions for each

contributing employer: Provided, however, That any former member

of the Teachers' Defined Contribution Retirement System who

affirmatively elected to transfer to the State Teachers' Retirement

System pursuant to article seven-d, chapter eighteen of this code

and whose benefits have been terminated pursuant to section five of

this article shall be refunded only his or her employee

contributions and the earnings on those contributions; and any

vested employer contributions from the Teachers' Defined

Contribution Retirement System shall remain in the State Teachers

Retirement System to be used to offset future employer contributions for each contributing employer.







WVC 5 - 10 A- 7

§5-10A-7. Eligibility for new participation upon rehabilitation.

Nothing in this article prohibits a participant or former

participant made ineligible for benefits by virtue of conviction of

a crime under this article and who has paid the full penalty

imposed by law for the crime from accepting a position as an

officer or employee of the same or different public employer and

joining a retirement plan as a new member; but the new member and

his or her beneficiaries shall remain forever ineligible for any

benefits arising from the new member's former participation in a

retirement plan.







WVC 5 - 10 A- 8

§5-10A-8. Setoff; unpaid benefits subject to execution, freezing

of account upon finding of probable cause.

(a) The State of West Virginia or any of its political

subdivisions shall have the right of setoff against any unpaid

benefits which have accrued or may thereafter accrue under the

plan, including any contributions by the participant or former

participant for any claim caused by less than honorable service by

the participant or former participant.

(b) Notwithstanding any provision of this article to the

contrary, upon being notified by an agency of the State of West

Virginia or any of its political subdivisions that an employee has

been charged by criminal complaint, indictment or information with

an offense which constitutes less than honorable service and

larceny of funds or property from a state agency or political

subdivision, the retirement board shall withhold payment or

refunding of any participant's or former participant's

contributions until it receives an order from a court of competent

jurisdiction reflecting that the charge has been dismissed,

reflecting that the participant or former participant is found not

guilty, ordering the release of all or part of the funds or

directing restitution to the state or political subdivision.

(c) Notwithstanding any provision of the law to the contrary,

any unpaid benefits which have accrued or may thereafter accrue are

subject to execution, garnishment, attachment or any other legal

process for collection of a judgment for the recovery of loss or damages incurred by the state or its political subdivision caused

by the participant's or former participant's less than honorable

service.







WVC 5-10A-9

§5-10A-9. Rules of construction.

If any provision of this article is determined to deprive a

person of any property right which is vested and is indefeasible as

of the effective date of this article, the provisions of this

article shall nonetheless be effective as to any benefits or a part

of any benefit under a retirement plan which shall be deemed to

vest on or after the effective date of this article; and the right

to receive any benefit under a retirement plan, which right shall

vest on or after the effective date of this article, is hereby

conditioned upon the full compliance and observance of the

provisions hereof and the rendering of honorable service throughout

the service in public employment or public office in respect of

which such benefit is payable.







WVC 5-10A-10

§5-10A-10. Severability.

If any section, subsection, subdivision, provision, clause or

phrase of this article or the application thereof to any person or

circumstance is held unconstitutional or invalid, such

unconstitutionality or invalidity shall not affect other sections,

subsections, subdivisions, provisions, clauses or phrases or

applications of the article, and to this end each and every

section, subsection, subdivision, provision, clause and phrase of

this article are declared to be severable. The Legislature hereby

declares that it would have enacted the remaining sections,

subsections, subdivisions, provisions, clauses and phrases of this

article even if it had known that any sections, subsections,

subdivisions, provisions, clauses and phrases thereof would be

declared to be unconstitutional or invalid, and that it would have

enacted this article even if it had known that the application

thereof to any person or circumstance would be held to be

unconstitutional or invalid.







WVC 5 - 10 A- 11

§5-10A-11. Notification from prosecuting attorneys.

The prosecuting attorneys of the counties of this state shall,

within sixty days of a conviction or a plea agreement meeting the

definition of less than honorable service, report the conviction or

plea agreement to the executive director of the Board, including

with the report the indictment, plea agreement and any order

finding the defendant guilty.





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

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