19-20-716. Termination pay. (1) If a member terminates and receives termination pay at the time of retirement, the member shall select, subject to subsections (5) and (6), by signing a binding, irrevocable written election at least 90 days before the member's termination date, one of the following options:
     (a) Option 1--The member may use the total termination pay in the calculation of the member's average final compensation. The member and the employer shall pay contributions to the retirement system as determined by the board to adequately compensate the system for the additional retirement benefit. The contributions must be made at the time of termination.
     (b) Option 2--The member may use a yearly amount of the total termination pay added to each of the 3 consecutive years' salary used in the calculation of the member's average final compensation. To determine the amount of termination pay used in the calculation of average final compensation, termination pay must be divided by the total number of years of creditable service to determine a yearly amount. The member and the employer shall pay contributions on the termination pay according to the rates provided for in 19-20-602 and 19-20-605(1). For the purposes of this subsection (1)(b), the employer shall also pay as a contribution an amount equal to the termination pay multiplied by the rate established in 19-20-607 that would have been payable by the state as a supplemental contribution. The contributions must be made at the time of termination.
     (c) Option 3--The member may exclude the termination pay from the average final compensation. A contribution is not required of either the member or the employer.
     (2) A binding, irrevocable written election required by this section must be signed by both the member and the employer at least 90 days prior to the member's termination date and must contain statements with regard to the contributions required to be made by the member under subsections (1)(a) and (1)(b) that:
     (a) the contributions being picked up, although designated as member contributions, are being paid by the employer directly to the system in lieu of contributions by the member and that the picked up contributions are paid from the same source as compensation is paid;
     (b) the member may not choose to directly receive the amounts deducted from the member's termination pay instead of having them paid by the employer to the system;
     (c) the member may not prepay any portion of the contributions; and
     (d) the effective date of the pickup is the date that the irrevocable written election is signed by both the member and employer. The effective date must be at least 90 days prior to the date of the member's termination. The pickup does not apply to a contribution made before the effective date of the pickup.
     (3) For the purpose of this section, the date of termination is the last day the member is performing any services covered under this chapter.
     (4) Pursuant to subsection (2), contributions required under subsection (1)(a) or (1)(b) must be:
     (a) deducted from the portion of termination pay that:
     (i) constitutes wages for the purposes of section 3121 of the Internal Revenue Code, determined without regard to the wage base limitation; and
     (ii) can be included in the member's gross income for federal tax purposes; and
     (b) picked up by the employer, except as provided in subsections (5) and (6).
     (5) A member's contributions greater than the total amount of the member's termination pay may not be picked up by the employer and are subject to the limitations of section 415 of the Internal Revenue Code.
     (6) If a member and the member's employer fail to sign the written election within the time period required in subsection (1), the member may contribute for the purposes specified in subsections (1)(a) and (1)(b) on all or any part of the termination pay received. A contribution made pursuant to this subsection may not be picked up by the employer and is subject to the limitations of section 415 of the Internal Revenue Code.

     History: En. Sec. 2, Ch. 442, L. 1997; amd. Sec. 18, Ch. 111, L. 1999; amd. Sec. 20, Ch. 45, L. 2001; amd. Sec. 10, Ch. 320, L. 2005; amd. Sec. 14, Ch. 90, L. 2007; amd. Sec. 8, Ch. 305, L. 2007.