GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

S                                                                                                                                                     4

SENATE BILL 117*

Judiciary Committee Substitute Adopted 3/7/17

Appropriations on Pensions, Compensation, and Benefits Committee Substitute Adopted 4/6/17

House Committee Substitute Favorable 6/15/17

 

Short Title:      Forfeit. Retiremnt Benefits/Anti-Pen. Spiking.		(Public)
Sponsors:
Referred to:

February 22, 2017

A BILL TO BE ENTITLED

AN ACT to prohibit the receipt of benefits from the consolidated JUDICIAL retirement system for judges who have been impeached and convicted or removed from office, To amend felony forfeiture statutes, to clarify ANTI‑pension‑spiking CONTRIBUTION‑BASED BENEFIT CAP, AND TO PROVIDE AN EXEMPTION FROM RULE MAKING.

The General Assembly of North Carolina enacts:

 

PART I. FORFEITURE OF RETIREMENT BENEFITS/JUDGES

SECTION 1.  Article 4 of Chapter 135 of the General Statutes is amended by adding a new section to read:

"§ 135‑75.1B.  Forfeiture of retirement benefits for conviction on impeachment or removal from office.

(a)        Except as provided in G.S. 135‑56(k), the Board of Trustees shall not pay any retirement benefits or allowances, except for a return of member contributions plus interest, to any justice or judge of the General Court of Justice for whom the following apply:

(1)        The justice or judge of the General Court of Justice is convicted on impeachment under Article IV of the North Carolina Constitution and Chapter 123 of the General Statutes for reasons other than physical and mental incapacity.

(2)        The justice or judge of the General Court of Justice is removed from office under G.S. 7A‑376(b).

(b)        If a justice or judge of the General Court of Justice or former justice or judge of the General Court of Justice whose benefits under the System were forfeited under this section, except for the return of member contributions plus interest, subsequently has the conviction on impeachment or removal from office vacated or set aside for any reason, then the member or former member may seek a reversal of the benefit forfeiture by presenting sufficient evidence to the State Treasurer. If the State Treasurer determines a reversal of the benefit forfeiture is appropriate, then all benefits will be restored upon repayment of all accumulated contributions plus interest. Repayment of all accumulated contributions that have been received by the individual under the forfeiture provisions of this section must be made in a total lump‑sum payment with interest compounded annually at a rate of six and one‑half percent (6.5%) for each calendar year from the year of forfeiture to the year of repayment. An individual receiving a reversal of benefit forfeiture must receive reinstatement of the service credit forfeited."

SECTION 2.  G.S. 135‑56 is amended by adding a new subsection to read:

"(k)      If a justice or judge of the General Court of Justice who is in service and has not vested in this System on December 1, 2017, is convicted on impeachment or removed from office for acts committed after December 1, 2017, then that member shall forfeit all benefits under this System, except for a return of member contributions plus interest. If a member who is in service and has vested in this System on December 1, 2017, is convicted on impeachment or removed from office for acts committed after December 1, 2017, then that member is not entitled to any creditable service that accrued after December 1, 2017."

SECTION 3.  G.S. 7A‑376(b) reads as rewritten:

"(b)      Upon recommendation of the Commission, the Supreme Court may issue a public reprimand, censure, suspend, or remove any judge for willful misconduct in office, willful and persistent failure to perform the judge's duties, habitual intemperance, conviction of a crime involving moral turpitude, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. A judge who is suspended for any of the foregoing reasons shall receive no compensation during the period of that suspension. A judge who is removed for any of the foregoing reasons shall receive no retirement compensation compensation, except for a return of member contributions plus interest as provided in G.S. 135‑56(k), and is disqualified from holding further judicial office."

SECTION 4.  The General Assembly and the Supreme Court shall notify the State Treasurer and the Board of Trustees of the conviction on impeachment or removal from office of a justice or judge of the General Court of Justice.

 

PART II. FELONY FORFEITURE STATUTES

SECTION 5.(a)  G.S. 135‑18.10A(b) is repealed.

SECTION 5.(b)  G.S. 128‑38.4A(b) is repealed.

SECTION 5.(c)  G.S. 135‑75.1A(b) is repealed.

SECTION 5.(d)  G.S. 120‑4.33A is repealed.

 

PART III. ANTI‑PENSION‑SPIKING CONTRIBUTION‑BASED BENEFIT CAP

SECTION 6.(a)  G.S. 135‑5(a3) reads as rewritten:

"(a3)    Anti‑Pension‑Spiking Contribution‑Based Benefit Cap. – Notwithstanding any other provision of this section, every service retirement allowance provided under this section for members who retire on or after January 1, 2015, is subject to adjustment pursuant to a contribution‑based benefit cap under this subsection. The Board of Trustees shall adopt Notwithstanding Article 2A of Chapter 150B of the General Statutes, the Board of Trustees shall adopt a contribution‑based benefit cap factor recommended by the actuary, based upon actual experience, such that no more than three‑quarters of one percent (0.75%) of retirement allowances are expected to be capped. The Board of Trustees shall modify such factors every five years, as shall be deemed necessary, based upon the five‑year experience study as required by G.S. 135‑6(n). Prior to establishing a service retirement allowance under this section, the Board shall:

(1)        Determine an amount equal to the member's accumulated contributions as required under G.S. 135‑8(b)(1) for all years during which the member earned membership service used in the calculation of the retirement allowance that the member would receive under this section.

(2)        Determine the amount of a single life annuity that is the actuarial equivalent of the amount determined under subdivision (1) of this subsection, adjusted for the age of the member at the time of retirement or, when appropriate, the age at the time of the member's death.

(3)        Multiply the annuity amount determined under subdivision (2) of this subsection by the contribution‑based benefit cap factor.

(4)        Determine the amount of the retirement allowance that results from the member's membership service.

The product of the multiplication in subdivision (3) of this subsection is the member's contribution‑based benefit cap. If the amount determined under subdivision (4) of this subsection exceeds the member's contribution‑based benefit cap, the member's retirement allowance shall be reduced by an amount equal to the difference between the contribution‑based benefit cap and the amount determined under subdivision (4) of this subsection.

Notwithstanding the foregoing, the retirement allowance of a member with an average final compensation of less than one hundred thousand dollars ($100,000), as hereinafter indexed, shall not be subject to the contribution‑based benefit cap. The minimum average final compensation necessary for a retirement allowance to be subject to the contribution‑based benefit cap shall be increased on January 1 each year by the percent change between the December June Consumer Price Index in the year prior to retirement and the December June Consumer Price Index in the fiscal year most recently ended, calculated to the nearest tenth of a percent (0.1%), provided that this percent change is positive.

Notwithstanding the foregoing, the retirement allowance of a member who became a member before January 1, 2015, or who has not earned at least five years of membership service in the Retirement System after January 1, 2015, shall not be reduced; however, the member's last employer shall be required to make an additional contribution as specified in G.S. 135‑8(f)(2)f., if applicable."

SECTION 6.(b)  G.S. 128‑27(a3) reads as rewritten:

"(a3)    Anti‑Pension‑Spiking Contribution‑Based Benefit Cap. – Notwithstanding any other provision of this section, every service retirement allowance provided under this section for members who retire on or after January 1, 2015, is subject to adjustment pursuant to a contribution‑based benefit cap under this subsection. The Board of Trustees shall adopt Notwithstanding Article 2A of Chapter 150B of the General Statutes, the Board of Trustees shall adopt a contribution‑based benefit cap factor recommended by the actuary, based upon actual experience, such that no more than three‑quarters of one percent (0.75%) of retirement allowances are expected to be capped. The Board of Trustees shall modify such factors every five years, as shall be deemed necessary, based upon the five‑year experience study as required by G.S. 128‑28(o).

Prior to establishing a service retirement allowance under this section, the Board shall:

(1)        Determine an amount equal to the member's accumulated contributions as required under G.S. 128‑30(b)(1) for all years during which the member earned membership service used in the calculation of the retirement allowance that the member would receive under this section.

(2)        Determine the amount of a single life annuity that is the actuarial equivalent of the amount determined under subdivision (1) of this subsection, adjusted for the age of the member at the time of retirement or, when appropriate, the age at the time of the member's death.

(3)        Multiply the annuity amount determined under subdivision (2) of this subsection by the contribution‑based benefit cap factor.

(4)        Determine the amount of the retirement allowance that results from the member's membership service.

The product of the multiplication in subdivision (3) of this subsection is the member's contribution‑based benefit cap. If the amount determined under subdivision (4) of this subsection exceeds the member's contribution‑based benefit cap, the member's retirement allowance shall be reduced by an amount equal to the difference between the contribution‑based benefit cap and the amount determined under subdivision (4) of this subsection.

Notwithstanding the foregoing, the retirement allowance of a member with an average final compensation of less than one hundred thousand dollars ($100,000), as hereinafter indexed, shall not be subject to the contribution‑based benefit cap. The minimum average final compensation necessary for a retirement allowance to be subject to the contribution‑based benefit cap shall be increased on January 1 each year by the percent change between the December June Consumer Price Index in the year prior to retirement and the December  June Consumer Price Index in the fiscal year most recently ended, calculated to the nearest tenth of a percent (0.1%), provided that this percent change is positive.

Notwithstanding the foregoing, the retirement allowance of a member who became a member before January 1, 2015, or who has not earned at least five years of membership service in the Retirement System after January 1, 2015, shall not be reduced; however, the member's last employer shall be required to make an additional contribution as specified in G.S. 128‑30(g)(2)b., if applicable."

SECTION 6.(c)  G.S. 135‑6(l) reads as rewritten:

"(l)       Duties of Actuary. – The Board of Trustees shall designate an actuary who shall be the technical adviser of the Board of Trustees on matters regarding the operation of the funds created by the provisions of this Chapter and shall perform such other duties as are required in connection therewith. For purposes of the annual valuation of System assets, the The experience studies, and all other actuarial calculations required by this Chapter, all the assumptions used by the System's actuary, including mortality tables, interest rates, annuity factors, contribution‑based benefit cap factor, and employer contribution rates, shall be set out in the actuary's periodic reports reports, annual valuations of System assets, or other materials provided to the Board of Trustees. These Notwithstanding Article 2A of Chapter 150B of the General Statutes, these materials, once accepted by the Board, shall be considered part of the Plan documentation governing this Retirement System; System and shall be effective the first day of the month following adoption, unless a different date is included in the adopting resolution; similarly, the Board's minutes relative to all actuarial assumptions used by the System shall also be considered part of the Plan documentation governing this Retirement System, with the result of precluding any employer discretion in the determination of benefits payable hereunder, consistent with Section 401(a)(25) of the Internal Revenue Code."

SECTION 6.(d)  G.S. 128‑28(m) reads as rewritten:

"(m)     Duties of Actuary. – The Board of Trustees shall designate an actuary who shall be the technical adviser of the Board of Trustees on matters regarding the operation of the funds created by the provisions of this Chapter and shall perform such other duties as are required in connection therewith. For purposes of the annual valuation of System assets, the The experience studies, and all other actuarial calculations required by this Chapter, all the assumptions used by the System's actuary, including mortality tables, interest rates, annuity factors, contribution‑based benefit cap factor, and employer contribution rates, shall be set out in the actuary's periodic reportsreports, annual valuations of System assets, or other materials provided to the Board of Trustees. These Notwithstanding Article 2A of Chapter 150B of the General Statutes, these materials, once accepted by the Board, shall be considered part of the Plan documentation governing this Retirement System; System and shall be effective on the first day of the month following adoption, unless a different date is included in the adopting resolution; similarly, the Board's minutes relative to all actuarial assumptions used by the System shall also be considered part of the Plan documentation governing this Retirement System, with the result of precluding any employer discretion in the determination of benefits payable hereunder, consistent with Section 401(a)(25) of the Internal Revenue Code."

SECTION 6.(e)  This section is intended to clarify and not change existing law by making clear that the rule‑making provisions of Article 2A of Chapter 150B of the General Statutes never required the benefit cap factor under G.S. 135‑5(a3) to be adopted as a rule by the Board of Trustees.

SECTION 6.(f)  This section is effective when it becomes law and applies retroactively to January 1, 2015.

 

PART Iv. EXEMPTION FROM RULE MAKING

SECTION 7.(a)  G.S. 150B‑1(d) is amended by adding a new subdivision to read:

"§ 150B‑1.  Policy and scope.

 …

(d)       Exemptions from Rule Making. – Article 2A of this Chapter does not apply to the following:

…

(29)      The Retirement System Boards of Trustees established under G.S. 128‑28 and G.S. 135‑6 when adopting actuarial tables, assumptions, and contribution‑based benefit cap factors after presentation of recommendations from the actuary. This exemption includes, but is not limited to, the following actuarial tables and assumptions:

a.         Interest rate assumptions.

b.         Salary increase assumptions.

c.         Required contribution rates.

d.         Mortality assumptions.

e.         Separation and retirement assumptions.

f.          Joint and survivor tables.

g.         Reserve transfer tables.

h.         Contribution‑based benefit cap factors."

SECTION 7.(b)  G.S. 135‑6(n) reads as rewritten:

"(n)      In 1943, and at least once in each five‑year period thereafter, the actuary shall make an actuarial investigation into the mortality, service and compensation experience of the members and beneficiaries of the Retirement System, and shall make a valuation of the assets and liabilities of the funds of the System, and taking into account the result of such investigation and valuation, the Board of Trustees shall:

(1)        Adopt for the Retirement System such mortality, service service, contribution‑based benefit cap factors, and other tables as shall be deemed necessary; and

(2)        Certify the rates of contributions payable by the State of North Carolina on account of new entrants at various ages."

SECTION 7.(c)  G.S. 128‑28(o) reads as written:

"(o)      In the year 1945, and at least once in each five‑year period thereafter, the actuary shall make an actuarial investigation into the mortality, service and compensation experience of the members and beneficiaries of the Retirement System, and shall make a valuation of the assets and liabilities of the funds of the System, and taking into account the result of such investigation and valuation, the Board of Trustees shall:

(1)        Adopt for the Retirement System such mortality, service service, contribution‑based benefit cap factors, and other tables as shall be deemed necessary; and

(2)        Certify the rates of contributions payable by the participating units on account of new entrants at various ages."

SECTION 7.(d)  This section is intended to clarify and not change existing law by making clear that the rule‑making provisions of Article 2A of Chapter 150B of the General Statutes never required the benefit cap factor under G.S. 135‑5(a3) to be adopted as a rule by the Board of Trustees.

SECTION 7.(e)  This section is effective when it becomes law and applies retroactively to January 1, 2015.

SECTION 8.  Except as otherwise provided, this act becomes effective December 1, 2017, and applies to offenses committed on or after that date.