34 TAC §301.5, §301.6
The Office of the Fire Fighters' Pension Commissioner (FFPC)
proposes amendments to §301.5 and §301.6 concerning Rules of the
Texas Statewide Emergency Services Retirement Fund. These sections were previously
proposed for public comment in the January 18, 2002 issue of the
Texas Register
(27 TexReg 464). Due to some changes made by the board,
the Office of the Fire Fighters' Pension Commissioner (FFPC) has withdrawn
that proposed action elsewhere in this issue of the
Texas Register
in order to repropose these sections.
Morris Sandefer, Commissioner, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Sandefer also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be current and updated regulations. There will be no effect
on small businesses. There are no anticipated economic costs to persons who
are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Morris Sandefer, Commissioner,
Office of the Fire Fighters' Pension Commissioner, P.O. Box 12577, Austin,
Texas 78711-2577.
The amendments are proposed under Texas Civil Statutes, Article
6243e.3, (Senate Bill 411) 65th Legislature (1977), revised in the 72nd Legislature
(1991), revised in the 75th Legislature (1997), and revised in the 77th Legislature
(2001), which provide the Office of the Fire Fighters' Pension Commissioner
with the authority to promulgate rules necessary for the administration of
the pension fund.
No other statutes, articles, or codes are affected by the proposed amendments.
§301.5.Billings and Annual Reports.
(a)
Billings.
(1)
Each governing body shall contribute the funds for the
department's participation in the system.
(2)
Although the department and governing body may have an
agreement between themselves that the department will pay for participation
in the system, if the department is unable to pay, the governing body is held
liable for the payment.
(3)
The governing body may choose yearly or twice yearly billings.
It may also choose to have billings based on the governing body's fiscal year
instead of a calendar year.
(4)
Billings cannot be altered by the department or governing
body without prior approval by the Commissioner or State Board of Trustees.
Payments are deemed late if they are not received by the Commissioner within
60 days from the mailing date as indicated on the bill. Late payments accrue
interest at the most recent assumed actuarial rate of return on investments
of the fund. Although the current assumed actuarial rate of the fund is 8%,
that rate is subject to change at any time and without notice.
(5)
Requests for extensions of payments by
the governing entity must be in writing to the Commissioner. The governing
entity must demonstrate that the delay was beyond the control of the entities
responsible for payment and was not the result of neglect, indifference or
lack of diligence.
(b)
Annual Reports.
(1)
Annual report forms are mailed by the Commissioner in December
of each year.
(2)
Annual reports are based on a calendar year in all cases.
(3)
The reports are due in the Office of the Fire Fighters'
Pension Commissioner by January 31.
(4)
The guidelines accompanying the report forms should be
followed by the local pension board.
(5)
Administrative Penalties for late departmental annual report.
An annual report is deemed late if the complete report is not in the office
of the Commissioner within 60 days after January 31.
(A)
The initial penalty is $500 (five hundred dollars) for
the first violation. A penalty of $100 (one hundred dollars) will be added
to the initial penalty for every 30 days the report is late.
(B)
Departments which habitually (2 times in 3 years) submit
late reports will have an initial penalty of $1000.00 (one thousand dollars)
the second time the report is late. A penalty of $100 (one hundred dollars)
shall be added to the initial penalty for every 30 days the report is late.
(C)
Every consecutive year that an annual report is submitted
late, the initial penalty will be at least $500 (five hundred dollars) greater
than the initial penalty assessed the previous year.
(6)
The Commissioner may[
, with the approval of the state
board,
] waive penalties when a local board demonstrates that the delay
in submission was beyond the control of the local entities responsible for
preparing and submitting the report.
(A)
Requests for waivers of the late annual
report penalty must be in writing to the Commissioner.
(B)
The local board must demonstrate that
the delay was beyond the control of the entities responsible for preparing
and submitting the report, and was not the result of neglect, indifference,
or lack of diligence.
(C)
If the Commissioner denies a waiver, the
Commissioner must present the department's documentation to the State Board
of Trustees at its next scheduled meeting for a determination by the State
Board.
(D)
A local board whose waiver of the penalty
is denied by the State Board of Trustees shall have 60 days from the receipt
of the denial of waiver to request that the Commissioner schedule a contested
case hearing with the State Office of Administrative Hearings (SOAH). The
request from the local board shall be in writing.
(7)
The Commissioner
shall
[
with the approval
of the state board may
] withhold an individual's pension payments when
a local board cannot verify a recipient's eligibility to receive payments
due to the recipient's failure to cooperate or to provide information. The
chairman of the local board must make the request to withhold payments to
the Commissioner in writing. The request shall outline the attempts the board
has made to obtain this information. The Commissioner shall make a decision
and shall notify the recipient in writing of the decision.
(8)
The Commissioner shall not begin retirement annuity, disability,
or death payments based on the service of a person in departments whose service
information has not been updated by the latest annual report.
(9)
When correcting prior years of service
on an annual report for a member of the TSESRA (SB 411) system, the chairman,
the current chief or head of department, and the secretary of the local board
shall sign and have notarized a letter to the Commissioner correcting the
service record. This letter shall be accompanied by a copy of the minutes
of the local board of trustees showing that they voted to make the change.
§301.6.Local Boards of Trustees.
(a)
Composition and terms of the local board are contained
in Section 22, Local Board of Trustees, of Article 6243e.3, Vernons Texas
Civil Statutes. The term limitations set forth in Section 22 of the TSESRA,
Article 6243e.3, do not apply to the representative appointed by the governing
body, and the governing body has the authority to select its representative
to serve on the board in a manner that the local governing body chooses.
(b)
Duties of the local board are contained in Section 23,
Additional Duties of the Local Board of Trustees, and throughout the pension
fund law Article 6243e and Article 6243e.3. These duties are also summarized
in the information booklet issued by the Commissioner. The local board members
are expected to be aware of the duties imposed on them by the law and these
rules, and are legally responsible for errors and omissions made at the local
level resulting in non-payment of benefits.
(c)
By signing and notarizing Form LPB-411 of their department's
annual report, the board members are certifying that, to the best of their
knowledge, the report is correct.
(d)
Meetings held by the local board of trustees shall be conducted
as open meetings under the Texas Open Meetings Act, Texas Government Code
Annotated, Chapter 551 as amended.
(e)
In a department with five or less volunteer
members all volunteer members should be on the local board.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on March 4, 2002.
TRD-200201308
Morris E. Sandefer
Commissioner
Office of the Fire Fighters' Pension Commissioner
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 936-3372