AGO 1989-10.

• Case Date: October 16, 1989
• Court: West Virginia

West Virginia Attorney General Opinions 1989. AGO 1989-10. West VirginiaAttorney General Opinion1989-10October 16, 1989ROGER W. TOMPKINS ATTORNEY GENERAL Glen B. Gainer, Chairman, andBoard of Trustees West Virginia Public Employee Retirement System 10th Floor, Building 5 State Capitol Complex Charleston, West Virginia 25305 Dear Chairman Gainer: As you and the other Board members are aware, controversy still surrounds the interpretation of Senate Bill 10 (1988) and the treatment of an early incentive retiree who may serve in an "appointive office" following early retirement. I have reviewed both House Bill 4672 and Senate Bill 10 (1988), and have discussed the application of the law with my Assistants James A. Swart and Lowell Greenwood, and feel fairly well briefed on the impact the Legislature created for the Public Employees Retirement System. This letter is written to you in the customary lawyer/client relationship.In enacting Senate Bill 10 (1988) and adding W. Va. Code § 5-10-22c, the Legislature declared the early incentive retirement program as a compelling state interest for reduction of State government. Clearly, the purpose of the program was to reduce the actual number of employees on the governmental payrolls as well as the costs of running government. To fulfill this purpose, W. Va. Code 5-10-22c(b) states, in pertinent part, "Any member participating in this retirement incentive program is not eligible to accept further employment from the state or any of its political subdivisions * * *." (Underlining added.) However, the Legislature carved out two specific exceptions to that prohibition (substitute teacher or an adjunct faculty member), and two general exceptions to the employment prohibition (those early retirees who serve in an "elective office" and those who serve in an "appointive office"). Under the statute, if an early retiree serves in an "elective office," whether part-time or full-time, salaried or non-salaried, three things occur: 1. He or she shall not receive an incentive annuity during the term of service in said office; and 2. He or she shall receive his or her regular annuity calculated on a basis as if originally taken; and 3. He or she shall rejoin and reenter the retirement system and pay contributions therefor, with such regular annuity re-calculated upon cessation of...