Senator Jani Iwamoto proposes the following substitute bill:


1     
POSTRETIREMENT REEMPLOYMENT REVISIONS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jani Iwamoto

5     
House Sponsor: Lee B. Perry

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Postretirement Reemployment Restrictions Act by amending
10     provisions relating to postretirement reemployment.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     allows certain public safety service and firefighter service retirees to be reemployed
15     with a participating employer after a certain period from the retiree's retirement date
16     if the retiree:
17               •     does not receive certain employer provided retirement benefits for the
18     reemployment; and
19               •     is reemployed by a different participating employer than the participating
20     employer that employed the retiree at the time of retirement except in limited
21     circumstances;
22          ▸     requires a participating employer to pay certain amounts for a reemployed retiree in
23     certain circumstances;
24          ▸     requires certain member certifications on the retirement application form;
25          ▸     requires the Utah State Retirement Office to report certain information to an interim

26     committee of the Legislature;
27          ▸      authorizes the board to modify the annual cost-of-living adjustment of certain
28     reemployed retirees in certain circumstances;
29          ▸     specifies penalties for violating the reemployment provisions; and
30          ▸     makes technical changes.
31     Money Appropriated in this Bill:
32          None
33     Other Special Clauses:
34          This bill provides a special effective date.
35     Utah Code Sections Affected:
36     AMENDS:
37          49-11-1202, as enacted by Laws of Utah 2016, Chapter 310 and last amended by
38     Coordination Clause, Laws of Utah 2016, Chapter 310
39          49-11-1205, as last amended by Laws of Utah 2017, Chapter 141
40          49-11-1206, as enacted by Laws of Utah 2016, Chapter 310 and last amended by
41     Coordination Clause, Laws of Utah 2016, Chapter 310
42          49-11-1207, as last amended by Laws of Utah 2017, Chapter 141
43     

44     Be it enacted by the Legislature of the state of Utah:
45          Section 1. Section 49-11-1202 is amended to read:
46          49-11-1202. Definitions.
47          As used in this part:
48          (1) (a) "Affiliated emergency services worker" means a person who:
49          (i) is employed by a participating employer;
50          (ii) performs emergency services for another participating employer that is a different
51     agency;
52          (iii) is trained in techniques and skills required for the emergency service;
53          (iv) continues to receive regular training required for the service;
54          (v) is on the rolls as a trained affiliated emergency services worker of the participating
55     employer; and
56          (vi) provides ongoing service for a participating employer, which service may include

57     service as a volunteer firefighter, reserve law enforcement officer, search and rescue worker,
58     emergency medical technician, ambulance worker, park ranger, or public utilities worker.
59          (b) "Affiliated emergency services worker" does not include a person who performs
60     work or service but does not meet the requirements of Subsection (1)(a).
61          (2) "Amortization rate" means the amortization rate, as defined in Section 49-11-102,
62     to be applied to the system that would have covered the retiree if the retiree's reemployed
63     position were deemed to be an eligible, full-time position within that system.
64          (3) (a) "Reemployed," "reemploy," or "reemployment" means work or service
65     performed for a participating employer after retirement, in exchange for compensation.
66          (b) Reemployment includes work or service performed on a contract for a participating
67     employer if the retiree is:
68          (i) listed as the contractor; or
69          (ii) an owner, partner, or principal of the contractor.
70          (4) "Retiree":
71          (a) means a person who:
72          (i) retired from a participating employer; and
73          (ii) begins reemployment on or after July 1, 2010, with a participating employer; and
74          (b) does not include a person:
75          (i) (A) who was reemployed by a participating employer before July 1, 2010; and
76          (B) whose participating employer that reemployed the person under Subsection
77     (4)(b)(i)(A) was dissolved, consolidated, merged, or structurally changed in accordance with
78     Section 49-11-621 on or after July 1, 2010; or
79          (ii) who is working under a phased retirement agreement in accordance with Title 49,
80     Chapter 11, Part 13, Phased Retirement.
81          (5) "Retiree surcharge" means the board certified percentage of a reemployed retiree's
82     salary:
83          (a) paid on behalf of a reemployed retiree to the office;
84          (b) that is required to amortize the actuarial loss that would occur due to eligible
85     retirees being authorized to:
86          (i) commence their benefits at an earlier age; and
87          (ii) return to the workforce with a participating employer; and

88          (c) set in accordance with policies established by the board upon the advice of the
89     actuary.
90          Section 2. Section 49-11-1205 is amended to read:
91          49-11-1205. Postretirement reemployment restriction exceptions.
92          (1) (a) The office may not cancel the retirement allowance of a retiree who is
93     reemployed with a participating employer within one year of the retiree's retirement date if:
94          (i) the retiree is not reemployed by a participating employer for a period of at least 60
95     days from the retiree's retirement date;
96          (ii) upon reemployment after the break in service under Subsection (1)(a)(i), the retiree
97     does not receive any employer paid benefits, including:
98          (A) retirement service credit or retirement-related contributions;
99          (B) medical benefits;
100          (C) dental benefits;
101          (D) other insurance benefits except for workers' compensation as provided under Title
102     34A, Chapter 2, Workers' Compensation Act, Title 34A, Chapter 3, Utah Occupational Disease
103     Act, and withholdings required by federal or state law for social security, Medicare, and
104     unemployment insurance; or
105          (E) paid time off, including sick, annual, or other type of leave; and
106          (iii) (A) the retiree does not earn in any calendar year of reemployment an amount in
107     excess of the lesser of $15,000 or one-half of the retiree's final average salary upon which the
108     retiree's retirement allowance is based; or
109          (B) the retiree is reemployed as a judge as defined under Section 78A-11-102.
110          (b) Beginning January 1, 2013, the board shall adjust the amounts under Subsection
111     (1)(a)(iii) by the annual change in the Consumer Price Index during the previous calendar year
112     as measured by a United States Bureau of Labor Statistics Consumer Price Index average as
113     determined by the board.
114          (2) A retiree shall be considered as having completed the one-year separation from
115     employment with a participating employer required under Section 49-11-1204, if the retiree:
116          (a) before retiring:
117          (i) was employed with a participating employer as a public safety service employee as
118     defined in Section 49-14-102, 49-15-102, or 49-23-102;

119          (ii) and during the employment under Subsection (2)(a)(i), suffered a physical injury
120     resulting from external force or violence while performing the duties of the employment, and
121     for which injury the retiree would have been approved for total disability in accordance with
122     the provisions under Chapter 21, Public Employees' Long-Term Disability Act, if years of
123     service are not considered;
124          (iii) had less than 30 years of service credit but had sufficient service credit to retire,
125     with an unreduced allowance making the public safety service employee ineligible for
126     long-term disability payments under Chapter 21, Public Employees' Long-Term Disability Act,
127     or a substantially similar long-term disability program; and
128          (iv) does not receive any long-term disability benefits from any participating employer;
129     and
130          (b) is reemployed by a different participating employer.
131          (3) (a) The office may not cancel the retirement allowance of a retiree who is employed
132     as an affiliated emergency services worker within one year of the retiree's retirement date if the
133     affiliated emergency services worker does not receive any compensation, except for:
134          (i) a nominal fee, stipend, discount, tax credit, voucher, or other fixed sum of money or
135     cash equivalent payment not tied to productivity and paid periodically for services;
136          (ii) a length-of-service award;
137          (iii) insurance policy premiums paid by the participating employer in the event of death
138     of an affiliated emergency services worker or a line-of-duty accidental death or disability; or
139          (iv) reimbursement of expenses incurred in the performance of duties.
140          (b) For purposes of Subsections (3)(a)(i) and (ii), the total amount of any discounts, tax
141     credits, vouchers, and payments to an affiliated emergency services worker may not exceed
142     $500 per month.
143          (c) Beginning January 1, 2016, the board shall adjust the amount under Subsection
144     (3)(b) by the annual change in the Consumer Price Index during the previous calendar year as
145     measured by a United States Bureau of Labor Statistics Consumer Price Index average as
146     determined by the board.
147          (4) (a) The office may not cancel the retirement allowance of a retiree who is
148     reemployed with a participating employer within one year of the retiree's retirement date if:
149          (i) the retiree:

150          (A) is not reemployed by a participating employer for a period of at least 60 days from
151     the retiree's retirement date;
152          (B) except as provided in Subsection (8), is reemployed by a participating employer
153     that is a different participating employer than the participating employer the reemployed retiree
154     was employed by at the time of retirement;
155          (C) is reemployed by a participating employer as a:
156          (I) public safety service employee as defined in Section 49-14-102, 49-15-102, or
157     49-23-102; or
158          (II) firefighter service employee as defined in Section 49-16-102 or 49-23-102; and
159          (D) does not receive any employer paid retirement service credit or retirement related
160     contributions from the participating employer; and
161          (ii) the participating employer that reemploys the retiree pays to the office on behalf of
162     the retiree:
163          (A) the amortization rate; and
164          (B) the retiree surcharge.
165          (b) Any contribution paid to the office under Subsection (4)(a)(ii) shall be applied to
166     the system that would have covered the retiree if the retiree's reemployed position were
167     considered to be an eligible, full-time position within that system.
168          (c) The office shall, on or before November 30, 2024, study, evaluate, and report on the
169     actuarial costs and effectiveness of implementing the retiree reemployment exception
170     authorized under this Subsection (4) to the Retirement and Independent Entities Interim
171     Committee of the Legislature.
172          (5) (a) (i) A retiree receiving a retirement allowance may be reemployed under the
173     provisions of Subsections (1), (3), and (4) in only one position for only one participating
174     employer at a time following the retiree's retirement date.
175          (ii) The participating employer shall notify the office which postretirement
176     reemployment exception under this section will govern the retiree's reemployment.
177          (b) A retiree reemployed under the provisions of Subsection (1), (3), or (4) may change
178     reemployment to a new position under the provisions of Subsection (1), (3), or (4) only if:
179          (i) the retiree ceases actual work and is terminated from the current reemployed
180     position;

181          (ii) except as provided in Subsection (8), the retiree begins the subsequent
182     reemployment with a participating employer that is a different participating employer than:
183          (A) the participating employer for the retiree's current reemployment; and
184          (B) the participating employer that employed the retiree at the retiree's original time of
185     retirement; and
186          (iii) the participating employer or retiree notifies the office of the change in
187     reemployment and provides evidence to the office of the termination and change.
188          [(4)] (6) (a) If a retiree is reemployed under the provisions of Subsection (1) [or], (3),
189     or (4), the termination date of the reemployment, as confirmed in writing by the participating
190     employer, is considered the retiree's retirement date for the purpose of calculating the
191     separation requirement under Section 49-11-1204.
192          (b) If a retiree changes reemployment to another position under the provisions of
193     Subsection (1), (3), or (4), the final termination date of all reemployment, as confirmed in
194     writing by the last participating employer, is considered the retiree's retirement date for the
195     purpose of calculating the separation requirement under Subsection 49-11-505(3)(a).
196          [(b)] (7) The office shall cancel the retirement allowance of a retiree for the remainder
197     of the calendar year if the reemployment with a participating employer exceeds the limitation
198     under Subsection (1)(a)(iii) or (3)(b).
199          (8) (a) Notwithstanding Subsections (4)(a)(i)(B) and (5)(b)(ii) and subject to the
200     requirements in Subsection (3)(b), a reemployed retiree that was employed by:
201          (i) the state at the time of retirement may be reemployed by the state under Subsection
202     (4) or (5) if the reemployment is with a different agency or office; or
203          (ii) a participating employer located within a county of the fourth, fifth, or sixth class,
204     as classified under Section 17-50-501, may be reemployed by that participating employer under
205     Subsection (4) or (5).
206          (b) A participating employer may only reemploy a retiree under Subsection (8)(a) if:
207          (i) the participating employer certifies to the office, under penalty of fraud, the facts
208     and circumstances of rehire, including any prearrangement for reemployment before the
209     member's retirement date; and
210          (ii) the office performs a facts and circumstances review and determines there was a
211     bona fide termination of employment with that participating employer, including the specific

212     finding that there was not a prearrangement for reemployment before the member's retirement
213     date.
214          (9) (a) In accordance with this Subsection (9), the board may modify the benefits
215     provided to retirees reemployed under Subsection (4).
216          (b) A retiree entering into reemployment under Subsection (4) is subject to the
217     modifications described in this Subsection (9).
218          (c) The annual cost-of-living adjustment under Section 49-12-407, 49-13-407,
219     49-14-403, 49-15-403, 49-16-403, 49-17-405, 49-18-403, 49-18-403, 49-22-308, or 49-23-307
220     may be adjusted for a retiree reemployed under the provisions of Subsection (4) if the report
221     required under Subsection (4)(c) or another actuarial study commissioned by the board that
222     conforms with generally accepted actuarial principles and practices and with the Actuarial
223     Standards of Practice issued by the Actuarial Standards Board concludes:
224          (i) the aggregate actuarial loss described under Subsection 49-11-1202(5)(b) resulting
225     from the retiree reemployment exception authorized under Subsection (4) materially exceeds
226     the funding from the retiree surcharge;
227          (ii) that actuarial loss could not reasonably be funded by an increase to the retiree
228     surcharge by the board as authorized in Section 49-11-1202; and
229          (iii) contribution rate increases would be required to cover the liability of participating
230     employers for the actuarial loss not funded by the retiree surcharge.
231          (d) If the conditions under Subsection (9)(c) are met, as determined by the board and
232     certified by board action, the board shall direct the office how to offset that actuarial loss
233     through modification of the annual cost-of-living adjustment of a retiree who has been
234     reemployed under the provisions of Subsection (4), including determining:
235          (i) if the modification shall apply to all retirees who have been reemployed under the
236     provisions of Subsection (4) or certain classes of those retirees;
237          (ii) the appropriate and necessary modifications for all those retirees or classes of those
238     retirees, including reducing, suspending, or canceling the annual cost-of-living adjustment; and
239          (iii) the duration of the modifications, which may be permanent or for fixed or
240     indeterminate periods of time.
241          (e) A modification made under this Subsection (9) shall only apply after the board
242     action and may not decrease an affected retiree's allowance or prior annual cost-of-living

243     adjustments received.
244          Section 3. Section 49-11-1206 is amended to read:
245          49-11-1206. Notice of postretirement reemployment.
246          (1) A participating employer shall immediately notify the office:
247          (a) if the participating employer reemploys a retiree;
248          (b) whether the reemployment is subject to Section 49-11-1204 or Subsection
249     49-11-1205(1), (2), [or] (3), (4), or (5); and
250          (c) of any election by the retiree under Section 49-11-1204.
251          (2) A participating employer shall certify to the office whether the position of an
252     elected official is or is not full time.
253          (3) A retiree subject to this part shall report to the office the status of the reemployment
254     under Section 49-11-1204 or 49-11-1205.
255          (4) The retirement application form submitted to the office shall contain the retiring
256     member's certification, under penalty of fraud, of whether there was a prearrangement of
257     reemployment before the retiree's retirement date with a participating employer.
258          Section 4. Section 49-11-1207 is amended to read:
259          49-11-1207. Postretirement reemployment -- Violations -- Penalties.
260          (1) (a) If the office receives notice or learns of the reemployment of a retiree in
261     violation of Section 49-11-1204 or 49-11-1205, the office shall:
262          (i) immediately cancel the retiree's retirement allowance;
263          (ii) keep the retiree's retirement allowance cancelled for the remainder of the calendar
264     year if the reemployment with a participating employer exceeded the limitation under
265     Subsection 49-11-1205(1)(a)(iii)(A) or (3)(b); and
266          (iii) recover any overpayment resulting from the violation in accordance with the
267     provisions of Section 49-11-607 before the allowance may be reinstated.
268          (b) Reinstatement of an allowance following cancellation for a violation under this
269     section is subject to the procedures and provisions under Section 49-11-1204.
270          (2) If a retiree or participating employer failed to report reemployment in violation of
271     Section 49-11-1206, the retiree, participating employer, or both, who are found to be
272     responsible for the failure to report, are liable to the office for the amount of any overpayment
273     resulting from the violation.

274          (3) (a) A participating employer is liable to the office for a payment or failure to make
275     a payment in violation of this part.
276          (b) In addition to other penalties under this section, if the reemployment of a retiree is
277     in violation of Subsection 49-11-1205(4), the participating employer shall pay the office any
278     delinquent retiree surcharge and amortization rate contributions, plus interest, under Section
279     49-11-503.
280          (4) If a participating employer fails to notify the office in accordance with Section
281     49-11-1206, the participating employer is immediately subject to a compliance audit by the
282     office.
283          Section 5. Effective date.
284          This bill takes effect on January 1, 2019.