House Bill 417

AN ACT TO AMEND SECTION 25-11-127, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THROUGH JUNE 30, 2013, NO PERSON WHO IS RECEIVING A RETIREMENT ALLOWANCE FROM THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM AFTER RETIREMENT MAY BE EMPLOYED OR PAID FOR ANY SERVICE BY A STATE AGENCY, NO RETIRED MEMBER OF THE RETIREMENT SYSTEM WHO IS REEMPLOYED AFTER RETIREMENT BY A STATE AGENCY MAY CONTINUE TO RECEIVE A RETIREMENT ALLOWANCE WHILE SO REEMPLOYED, AND A STATE AGENCY SHALL NOT CONTRACT WITH ANY PERSON WHO IS RECEIVING A RETIREMENT ALLOWANCE TO PROVIDE SERVICES AS AN INDEPENDENT CONTRACTOR; TO PROVIDE AN EXCEPTION TO THE PRECEDING PROVISIONS ONLY IF THE SERVICES OF A RETIRED MEMBER ARE NECESSARY FOR A STATE AGENCY BECAUSE OF THE EXISTENCE OF AN EMERGENCY SITUATION OF SUCH MAGNITUDE THAT THE ESSENTIAL MISSION OF THE AGENCY CANNOT BE CARRIED OUT WITHOUT THE SERVICES OF THE RETIRED MEMBER, AND A MAJORITY OF THE MEMBERS OF THE JOINT LEGISLATIVE BUDGET COMMITTEE APPROVE THE EMPLOYMENT OR CONTRACTING WITH THE RETIRED MEMBER; TO AMEND SECTIONS 25-9-120 AND 27-104-17, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 25-11-127, Mississippi Code of 1972, is amended as follows:

[Through June 30, 2011, this section shall read as follows:]

(b) No retiree of this retirement system who is reemployed or is reelected to office after retirement shall continue to draw retirement benefits while so reemployed, except as provided in this section.

(c) No person employed or elected under the exceptions provided for in this section shall become a member under Article 3 of the retirement system.

(d) From the effective date of House Bill No. ___, 2011 Regular Session, through June 30, 2013, notwithstanding any provision of this section to the contrary, except as authorized under paragraph (e) of this subsection:

(i) No person who is receiving a retirement allowance under this article after retirement may be employed or paid for any service by the State of Mississippi or any agency, department or institution of the state;

(ii) No retired member of the retirement system who is reemployed after retirement by the State of Mississippi or any agency, department or institution of the state may continue to receive a retirement allowance under this article while so reemployed; and

(iii) The State of Mississippi or any agency, department or institution of the state shall not contract with any person who is receiving a retirement allowance under this article to provide services as an independent contractor, as defined by the board.

(e) Notwithstanding the provisions of paragraph (d) of this subsection, the State of Mississippi or any agency, department or institution of the state may employ or contract with a retired member of the retirement system after retirement as an employee, contract employee or independent contractor and the retired member may continue to receive a retirement allowance under this article during the period of employment or the contract, only if the services of the retired member are necessary for the employer because of the existence of an emergency situation of such magnitude that the essential mission of the employer cannot be carried out without the services of the retired member. Before the State of Mississippi or any agency, department or institution of the state may employ or contract with a retired member under the exception provided in this paragraph, a majority of the members of the Joint Legislative Budget Committee must approve the employment or contracting with the retired member.

(2) Any person who has been retired under the provisions of Article 3 and who is later reemployed in service covered by this article shall cease to receive benefits under this article and shall again become a contributing member of the retirement system. When the person retires again, if the reemployment exceeds six (6) months, the person shall have his or her benefit recomputed, including service after again becoming a member, provided that the total retirement allowance paid to the retired member in his or her previous retirement shall be deducted from the member's retirement reserve and taken into consideration in recalculating the retirement allowance under a new option selected.

(3) The board shall have the right to prescribe rules and regulations for carrying out the provisions of this section.

(4) The provisions of this section shall not be construed to prohibit any retiree, regardless of age, from being employed and drawing a retirement allowance either:

(a) For a period of time not to exceed one-half (1/2) of the normal working days for the position in any fiscal year during which the retiree will receive no more than one-half (1/2) of the salary in effect for the position at the time of employment, or

(b) For a period of time in any fiscal year sufficient in length to permit a retiree to earn not in excess of twenty-five percent (25%) of retiree's average compensation.

To determine the normal working days for a position under paragraph (a) of this subsection, the employer shall determine the required number of working days for the position on a full-time basis and the equivalent number of hours representing the full-time position. The retiree then may work up to one-half (1/2) of the required number of working days or up to one-half (1/2) of the equivalent number of hours and receive up to one-half (1/2) of the salary for the position. In the case of employment with multiple employers, the limitation shall equal one-half (1/2) of the number of days or hours for a single full-time position.

Notice shall be given in writing to the executive director, setting forth the facts upon which the employment is being made, and the notice shall be given within five (5) days from the date of employment and also from the date of termination of the employment.

(5) (a) A member may retire and continue in municipal or county elective office provided that the member has reached the age and/or service requirement that will not result in a prohibited in-service distribution as defined by the Internal Revenue Service, or a retiree may be elected to a municipal or county office, provided that the person:

(i) Files annually, in writing, in the office of the employer and the office of the executive director of the system before the person takes office or as soon as possible after retirement, a waiver of all salary or compensation and elects to receive in lieu of that salary or compensation a retirement allowance as provided in this section, in which event no salary or compensation shall thereafter be due or payable for those services; however, any such officer or employee may receive, in addition to the retirement allowance, office expense allowance, mileage or travel expense authorized by any statute of the State of Mississippi; or

(ii) Elects to receive compensation for that elective office in an amount not to exceed twenty-five percent (25%) of the retiree's average compensation. In order to receive compensation as allowed in this subparagraph, the retiree shall file annually, in writing, in the office of the employer and the office of the executive director of the system, an election to receive, in addition to a retirement allowance, compensation as allowed in this subparagraph.

(b) The municipality or county in which the retired person holds elective office shall pay to the board the amount of the employer's contributions on the full amount of the regular compensation for the elective office that the retired person holds.

(c) As used in this subsection, the term "compensation" does not include office expense allowance, mileage or travel expense authorized by a statute of the State of Mississippi.

[From and after July 1, 2011, this section shall read as follows:]

25-11-127. (1) (a) No person who is being paid a retirement allowance or a pension after retirement under this article shall be employed or paid for any service by the State of Mississippi, including services as an employee, contract worker, contractual employee or independent contractor, until the retired person has been retired for not less than ninety (90) consecutive days from his or her effective date of retirement. After the person has been retired for not less than ninety (90) consecutive days from his or her effective date of retirement or such later date as established by the board, he or she may be reemployed while being paid a retirement allowance under the terms and conditions provided in this section.

(c) No person employed or elected under the exceptions provided for in this section shall become a member under Article 3 of the retirement system.

(3) The board shall have the right to prescribe rules and regulations for carrying out the provisions of this section.

(4) The provisions of this section shall not be construed to prohibit any retiree, regardless of age, from being employed and drawing a retirement allowance either:

(b) For a period of time in any fiscal year sufficient in length to permit a retiree to earn not in excess of twenty-five percent (25%) of retiree's average compensation.

(5) Except as otherwise provided in subsection (6) of this section, the employer of any person who is receiving a retirement allowance and who is employed in service covered by subsection (4) of this section as an employee or a contractual employee shall pay to the board the full amount of the employer's contribution on the amount of compensation received by the retiree for his or her employment in accordance with regulations prescribed by the board. The retiree shall not receive any additional creditable service in the retirement system as a result of the payment of the employer's contribution. This subsection does not apply to persons who are receiving a retirement allowance and who contract with an employer to provide services as a true independent contractor, as defined by the board through regulation.

(6) (a) A member may retire and continue in municipal or county elective office provided that the member has reached the age and/or service requirement that will not result in a prohibited in-service distribution as defined by the Internal Revenue Service, or a retiree may be elected to a municipal or county office, provided that the person:

(c) As used in this subsection, the term "compensation" does not include office expense allowance, mileage or travel expense authorized by a statute of the State of Mississippi.

SECTION 2. Section 25-9-120, Mississippi Code of 1972, is amended as follows:

25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the state employee health plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.

(2) There is * * * created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife and Fisheries, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.

(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:

(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, any personal service contracts entered into by the Mississippi Department of Transportation, and any contract for attorney, accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Those rules and regulations shall provide for maintaining continuous internal audit covering the activities of the agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d);

(b) Approve all personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00);

(c) Develop standards with respect to contractual services personnel that require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise the contract for public bid, and may reserve the right to reject any or all bids;

(d) Prescribe certain circumstances by which agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;

(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;

(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;

(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided that a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;

(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;

(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making the report.

(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.

(5) Contractual services personnel and contracts for personal and professional services to which this section applies shall be subject to the provisions of Section 25-11-127(1)(d) and (e).

SECTION 3. Section 27-104-17, Mississippi Code of 1972, is amended as follows:

27-104-17. (1) An allotment period shall be one-half (1/2) of twelve (12) months, and expenditure one-half (1/2) of the appropriated amount, unless otherwise specified in the appropriation bill or justified by the agency to the Department of Finance and Administration, and the first allotment period shall commence on July 1. Estimates shall be filed with the Department of Finance and Administration not later than the first day of the month preceding the beginning period.

* * * The Department of Finance and Administration may, in its discretion, restrict an agency to a monthly allotment period when it becomes evident that an agency's rate of expenditure to date indicates this restriction will be necessary to prevent depletion of its appropriation before the close of the fiscal year or when the condition of the State General Fund requires monthly monitoring and control of the rate of General Fund expenditures.

(2) Except as otherwise provided in subsection (3), and unless otherwise specified in the agency appropriation bill, if any emergency or unforeseen circumstances * * * arises, the agency head may authorize increases in major objects of expenditure within each specific budget within each appropriation bill in total amounts not to exceed ten percent (10%) of the appropriated amount of each object, provided that other major objects of expenditure are decreased by a corresponding dollar amount. No transfers shall be authorized that increase or decrease the major object of expenditure "Salaries, Wages and Fringe Benefits," or that increase the major object of expenditure "Capital Outlay - Equipment." The agency head shall submit written justification for the transfer to the Legislative Budget Office, the Department of Finance and Administration, and the State Auditor, on or before the fifteenth of the month before the effective date of the transfer. The transfer shall be effective the first working day of the month following timely submissions required in this subsection. In cases of extreme hardship, certified in writing by the agency head and submitted with timely submissions required in this subsection, the Executive Director of the Department of Finance and Administration, in his discretion, may authorize an earlier effective date for the transfer.

(3) From and after March 12, 2009, and until June 30, 2009, due to the unforeseen financial circumstances, the agency head of any state agency, with the approval of the Department of Finance and Administration, may authorize increases in major objects of expenditure within each specific budget within each appropriation bill, provided that other major objects of expenditure are decreased by a corresponding dollar amount. No state agency shall take any action to promote or otherwise award salary increases through reallocation, reclassification, realignment, education benchmark, career ladder, or any other means to increase salaries of employees or positions unless specifically exempted by the following conditions: the immediate replacement of a departing employee with an individual from within state service or a new hire at a salary level equivalent to that of the departing employees or the emergency appointment of nurses, pharmacists or other health care professionals at a salary to be determined by the State Personnel Board. The agency head shall submit written justification for the transfer(s) to the Department of Finance and Administration, the Legislative Budget Office and the State Auditor on or before the fifteenth of the month before the effective date of the transfer. The transfer shall be effective the first working day of the month following timely submissions and approval required in this subsection. In cases of extreme hardship, certified in writing by the agency head and timely submitted as required in this section, the Executive Director of the Department of Finance and Administration, in his discretion, may authorize an earlier effective date for the transfer.

(4) No former employee who is receiving State of Mississippi retirement benefits shall be hired under contract for an amount exceeding Twenty Thousand Dollars ($20,000.00) a year without prior approval by an agency's proper governing board or authority. Upon approval of those contracts a written report shall be submitted detailing the cost and need of such contract services to the Chairmen and members of the Senate and House Appropriations Committees. From the effective date of House Bill No. , 2011 Regular Session, through June 30, 2013, any contract between an agency and a former employee who is receiving State of Mississippi retirement benefits shall be subject to the provisions of Section 25-11-127(1)(d) and (e).

SECTION 4. This act shall take effect and be in force from and after its passage.