34 TAC §301.5, §301.6,
The Office of the Fire Fighters' Pension Commissioner (FFPC)
proposes amendments to §301.5 and §301.6, concerning the Rules of
the Texas Statewide Emergency Services Personnel Retirement Fund.
The amendment to §301.5 is proposed to subsection (b)(5). The amendment
is proposed to simplify the assessment of administrative penalties for late
reports and to reduce future database programming costs. The amendment to §301.6
adds a new subsection (f). The amendment is necessary to clarify that local
boards of trustees are to elect board officers each year.
Morris Sandefer, Commissioner, has determined that for the first five-year
period the amended rules 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-year
period that the amended rules are in effect, the public benefit will be current
and updated regulations. There will be no economic impact to small or micro
businesses. There are no anticipated economic costs to persons who are required
to comply with the amended rules 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 no later than 30 days from the date that the proposed amendments
are published in the
Texas Register
.
The amendments are proposed under Texas Civil Statutes, Article
6243e.3, 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. The late payment penalty formula is: ((total bill x assumed actuarial
rate of return on investments)/365)x number of days payment is late.
(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
received
in the office of the Commissioner
before April 1
[
within 60 days after January 31
].
(A)
The initial penalty is $500 (five hundred dollars) for
the first violation.
(B)
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 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 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.
(f)
A local board of trustees annually
shall elect a chairman, vice-chairman, and secretary.
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 June 10, 2003.
TRD-200303465
Morris E. Sandefer
Commissioner
Office of the Fire Fighters' Pension Commissioner
Earliest possible date of adoption: July 27, 2003
For further information, please call: (512) 936-3372