CHAPTER 7. RETIREMENT FUND
IC 33-39-7
Chapter 7. Retirement Fund
IC 33-39-7-1
Application of chapter
Sec. 1. This chapter applies only to:
(1) an individual who serves as a prosecuting attorney or chiefdeputy prosecuting attorney on or after January 1, 1990; and
(2) a participant employed in a position described in section8(a)(2) or 8(a)(3) of this chapter who serves in the position afterJune 30, 1995.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-2
Americans with Disabilities Act defined
Sec. 2. As used in this chapter, "Americans with Disabilities Act"refers to the Americans with Disabilities Act (42 U.S.C. 12101 etseq.) and any amendments and regulations related to the Act.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-3
Board defined
Sec. 3. As used in this chapter, "board" refers to the board oftrustees of the public employees' retirement fund.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-4
Fiscal year defined
Sec. 4. As used in this chapter, "fiscal year" means the periodbeginning on July 1 in any year and ending on June 30 of thefollowing year.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-5
Fund defined
Sec. 5. As used in this chapter, "fund" refers to the prosecutingattorneys retirement fund established by this chapter.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-6
Participant defined
Sec. 6. As used in this chapter, "participant" means a personserving in a position described in section 8 of this chapter who isparticipating in the fund.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-7
Salary defined
Sec. 7. As used in this chapter, "salary" means the salary paid toa participant by the state, determined without regard to any salary
reduction agreement established under Section 125 of the InternalRevenue Code. The term does not include an amount paid to aparticipant by a county or counties.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-8
Services defined
Sec. 8. (a) As used in this chapter, "services" means the periodbeginning on the first day upon which a person first became:
(1) a prosecuting attorney or chief deputy prosecuting attorney;
(2) any other deputy prosecuting attorney who is:
(A) appointed under IC 33-39-6-2; and
(B) paid by the state from the state general fund; or
(3) the executive director or the assistant executive director ofthe prosecuting attorneys council of Indiana;
whether that date is before, on, or after January 1, 1990, and endingon the date under consideration, including all interveningemployment in a position described in subdivisions (1) through (3).If an individual is elected or appointed to a position described insubdivisions (1) through (3) and serves one (1) or more terms or partof a term, then retires from office, but at a later period or periods isappointed or elected and serves in a position described insubdivisions (1) through (3), the individual shall pay into the fundduring all the periods that the individual serves in that position,except as otherwise provided in this chapter, whether the periods areconnected or disconnected.
(b) A senior prosecuting attorney appointed under IC 33-39-1 isnot required to pay into the fund during any period of service as asenior prosecuting attorney.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-9
Establishment of fund; contents
Sec. 9. The prosecuting attorneys retirement fund is established.The fund consists of the following:
(1) Each participant's contributions to the fund.
(2) All gifts, grants, devises, and bequests in money, property,or other form made to the fund.
(3) All interest on investments or on deposits of the funds.
(4) A contribution or payment to the fund made in a mannerprovided by the general assembly.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-10
Fund construed as trust; purpose
Sec. 10. The fund shall be construed to be a trust, separate anddistinct from all other entities, maintained to:
(1) secure payment of benefits to the participants and theirbeneficiaries; and
(2) pay the costs of administering this chapter.As added by P.L.98-2004, SEC.18.
IC 33-39-7-11
Administration; commingling; duties of board; appeals;confidentiality of fund records
Sec. 11. (a) The board shall administer the fund, which may becommingled with the public employees' retirement fund forinvestment purposes.
(b) The board shall do the following:
(1) Determine eligibility for and make payments of benefitsunder this chapter.
(2) In accordance with the powers and duties granted the boardin IC 5-10.3-3-7, IC 5-10.3-3-7.1, IC 5-10.3-3-8, andIC 5-10.3-5-3 through IC 5-10.3-5-6, administer the fund.
(3) Provide by rule for the implementation of this chapter.
(4) Authorize deposits.
(c) A determination by the board may be appealed underIC 4-21.5.
(d) The powers and duties of:
(1) the director and the actuary of the board;
(2) the attorney general; and
(3) the auditor of state;
with respect to the fund are those specified in IC 5-10.3-3 andIC 5-10.3-4.
(e) The board may hire additional personnel, including hearingofficers, to assist in the implementation of this chapter.
(f) Fund records of individual participants and participants'information are confidential, except for the name and years of serviceof a fund participant.
As added by P.L.98-2004, SEC.18. Amended by P.L.94-2004, SEC.7;P.L.99-2010, SEC.10.
IC 33-39-7-12
Contributions
Sec. 12. (a) Except as provided in subsection (b), each participantshall make contributions to the fund as follows:
(1) A participant described in section 8(a)(1) of this chaptershall make contributions of six percent (6%) of each paymentof salary received for services after December 31, 1989.
(2) A participant described in section 8(a)(2) or 8(a)(3) of thischapter shall make contributions of six percent (6%) of eachpayment of salary received for services after June 30, 1994.
A participant's contributions shall be deducted from the participant'smonthly salary by the auditor of state and credited to the fund.
(b) The state may pay the contributions for a participant.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-13
Withdrawals
Sec. 13. (a) A participant who: (1) ceases service in a position described in section 8 of thischapter, other than by death or disability; and
(2) is not eligible for a retirement benefit under this chapter;
is entitled to withdraw from the fund, beginning on the date specifiedby the participant in a written application. The date upon which thewithdrawal begins may not be before the date of final termination ofemployment or the date thirty (30) days before the receipt of theapplication by the board. Upon withdrawal the participant is entitledto receive the total sum contributed plus interest at the rate of fiveand one-half percent (5.5%) compounded annually, payable not laterthan sixty (60) days from the date of the withdrawal application.
(b) Notwithstanding section 8 of this chapter, a participant whowithdraws from the fund under subsection (a) and becomes aparticipant again at a later date is not entitled to service credit foryears of service before the withdrawal.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-14
Interest credits
Sec. 14. (a) Interest shall be credited annually on June 30 at therate of five and one-half percent (5.5%) on all amounts credited tothe member as of June 30 of the preceding year.
(b) Contributions begin to accumulate interest at the beginning ofthe fiscal year after the year in which the contributions are due.
(c) When a member retires or withdraws, a proportional interestcredit determined under this chapter shall be paid for the periodelapsed since the last date on which interest was credited.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-15
Eligibility for retirement benefits
Sec. 15. A participant whose employment in a position describedin section 8 of this chapter is terminated is entitled to a retirementbenefit computed under section 16 or 18 of this chapter, beginningon the date specified by the participant in a written application, if allof the following conditions are met:
(1) The application for retirement benefits and the choice of theretirement date is filed on a form provided by the board, and theretirement date is:
(A) after the cessation of the participant's service;
(B) on the first day of a month; and
(C) not more than six (6) months before the date theapplication is received by the board.
However, if the board determines that a participant isincompetent to file for benefits and choose a retirement date,the retirement date may be any date that is the first of the monthafter the time the participant became incompetent.
(2) The participant:
(A) is at least sixty-two (62) years of age and has at leasteight (8) years of service credit; or (B) meets the requirements for disability benefits undersection 17 of this chapter.
(3) The participant is not receiving and is not entitled to receiveany salary for services currently performed, except for servicesrendered as a senior prosecuting attorney under IC 33-39-1.
As added by P.L.98-2004, SEC.18. Amended by P.L.33-2006, SEC.1.
IC 33-39-7-16
Computation of retirement benefits
Sec. 16. (a) This section does not apply to a participant who meetsthe requirements for disability benefits under section 17 of thischapter.
(b) Except as provided in subsections (c) and (d), the amount ofthe annual retirement benefit to which a participant who applies fora retirement benefit and who is at least sixty-five (65) years of age isentitled equals the product of:
(1) the highest annual salary that was paid to the participantbefore separation from service; multiplied by
(2) the percentage prescribed in the following table:
Participant's Years Percentage
of Service
Less than 8 0
8 24%
9 27%
10 30%
11 33%
12 50%
13 51%
14 52%
15 53%
16 54%
17 55%
18 56%
19 57%
20 58%
21 59%
22 or more 60%
(c) If a participant who applies for a retirement benefit is not atleast sixty-five (65) years of age, the participant is entitled to receivea reduced annual retirement benefit that equals the benefit that wouldbe payable if the participant were sixty-five (65) years of age reducedby one-fourth percent (0.25%) for each month that the participant'sage at retirement precedes the participant's sixty-fifth birthday.
(d) Benefits payable to a participant under this section are reducedby the pension, if any, that would be payable to the participant fromthe public employees' retirement fund if the participant had retiredfrom the public employees' retirement fund on the date of theparticipant's retirement from the prosecuting attorneys retirementfund. Benefits payable to a participant under this section are notreduced by annuity payments made to the participant from the public
employees' retirement fund.
(e) If benefits payable from the public employees' retirement fundexceed the benefits payable from the prosecuting attorneysretirement fund, the participant is entitled at retirement to withdrawfrom the prosecuting attorneys retirement fund the total sumcontributed plus interest at the rate of five and one-half percent(5.5%) compounded annually.
As added by P.L.98-2004, SEC.18. Amended by P.L.33-2006, SEC.2.
IC 33-39-7-17
Eligibility for disability benefits; transcripts, reports, records, andother materials
Sec. 17. (a) Except as provided in subsection (b), a participantwho becomes disabled while in active service in a position describedin section 8 of this chapter may retire for the duration of thedisability if:
(1) the participant has at least five (5) years of creditableservice;
(2) the participant has qualified for Social Security disabilitybenefits and has furnished proof of the Social Securityqualification to the board; and
(3) at least once each year until the participant becomessixty-five (65) years of age a representative of the board verifiesthe continued disability.
For purposes of this section, a participant who has qualified fordisability benefits under the federal civil service system is consideredto have met the requirement of subdivision (2) if the participantfurnishes proof of the qualification to the board.
(b) Benefits may not be provided under this chapter for anydisability that:
(1) results from an intentionally self-inflicted injury orattempted suicide while sane or insane;
(2) results from the participant's commission or attemptedcommission of a felony; or
(3) begins within two (2) years after a participant's entry orreentry into active service in a position described in section 8 ofthis chapter and was caused or contributed to by a mental orphysical condition that manifested itself before the participantentered or reentered active service.
(c) To the extent required by the Americans with Disabilities Act,the transcripts, reports, records, and other material generated to provethat an individual is qualified for disability benefits under thissection shall be:
(1) kept in separate medical files for each member; and
(2) treated as confidential medical records.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-18
Computation of disability benefits
Sec. 18. (a) Except as provided in subsection (b), the amount of
the annual benefit payable to a participant who meets therequirements for disability benefits under section 17 of this chapteris equal to the product of:
(1) the annual salary that was paid to the participant at the timeof separation from service; multiplied by
(2) the percentage prescribed in the following table:
Participant's Years Percentage
of Service
Less than 5 0
5-10 40%
11 41%
12 42%
13 43%
14 44%
15 45%
16 46%
17 47%
18 48%
19 49%
20 or more 50%
(b) Benefits payable to a participant under this section are reducedby the amounts, if any, that are payable to the participant from thepublic employees' retirement fund.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-19
Benefits payable to surviving spouse; eligibility; computation
Sec. 19. (a) The surviving spouse of a participant who:
(1) dies; and
(2) on the date of death:
(A) was receiving benefits under this chapter;
(B) had completed at least eight (8) years of service in aposition described in section 8 of this chapter; or
(C) met the requirements for disability benefits under section17 of this chapter;
is entitled, regardless of the participant's age, to the benefitprescribed by subsection (b).
(b) The surviving spouse is entitled to a benefit for life equal to thegreater of:
(1) seven thousand dollars ($7,000); or
(2) fifty percent (50%) of the amount of retirement benefit theparticipant was drawing at the time of death, or to which theparticipant would have been entitled had the participant retiredand begun receiving retirement benefits on the date of death,with reductions as necessary under section 16(c) of this chapter.
(c) Benefits payable to a surviving spouse under this section arereduced by the amounts, if any, that are payable to the survivingspouse from the public employees' retirement fund as a result of theparticipant's death.
As added by P.L.98-2004, SEC.18. Amended by P.L.33-2006, SEC.3.
IC 33-39-7-20
Benefits payable to dependent children; eligibility; computation;distribution
Sec. 20. (a) If a participant's spouse does not survive theparticipant, the dependent child of a participant is, upon the death ofthe participant, entitled to a benefit equal to the benefit theparticipant's spouse would have received under section 19 of thischapter.
(b) If a surviving spouse of a decedent participant dies and adependent child of the surviving spouse and the decedent participantsurvives them, that dependent child is entitled to receive a benefitequal to the benefit the spouse was receiving or would have receivedunder section 19 of this chapter.
(c) If there is more than one (1) dependent child, the dependentchildren are entitled to share the benefit equally.
(d) Each dependent child is entitled to receive that child's shareuntil the child becomes eighteen (18) years of age or during theentire period of the child's physical or mental disability, whicheverperiod is longer.
(e) Benefits payable to a dependent child are reduced by theamounts, if any, that are payable to the dependent child from thepublic employees' retirement fund.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-21
Withdrawal of funds by survivors or participant's estate
Sec. 21. (a) If benefits are not payable to the survivors of aparticipant who dies, and if a withdrawal application is filed with theboard by the survivors or the participant's estate, the total of theparticipant's contributions plus interest at the rate of five andone-half percent (5.5%) compounded annually, minus any paymentsmade to the participant, shall be paid to:
(1) the surviving spouse of the participant;
(2) any dependent or dependents of the participant, if a spousedoes not survive; or
(3) the participant's estate, if a spouse or dependent does notsurvive.
(b) The amount owed a spouse, dependent or dependents, or estateunder subsection (a) is payable not later than sixty (60) days after thedate of receipt of the withdrawal application.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-22
Satisfaction of Section 401 of the Internal Revenue Coderequirements
Sec. 22. The fund shall satisfy the qualification requirements inSection 401 of the Internal Revenue Code as applicable to the fund.In order to meet those requirements, the fund is subject to thefollowing provisions, notwithstanding any other provision of thischapter: (1) The board shall distribute the corpus and income of the fundto participants and their beneficiaries in accordance with thischapter.
(2) A part of the corpus or income of the fund may not be usedfor or diverted to any purpose other than the exclusive benefit ofthe participants and their beneficiaries.
(3) Forfeitures arising from severance of employment or death,or for any other reason, may not be applied to increase thebenefits a participant would otherwise receive under theretirement fund law.
(4) If the fund is terminated, or if all contributions to the fund arecompletely discontinued, the rights of each affected participantto the benefits accrued at the date of the termination ordiscontinuance, to the extent then funded, are nonforfeitable.
(5) All benefits paid from the fund shall be distributed inaccordance with the requirements of Section 401(a)(9) of theInternal Revenue Code and the regulations under that section. Inorder to meet those requirements, the fund is subject to thefollowing provisions:
(A) The life expectancy of a participant, the participant'sspouse, or the participant's beneficiary shall not berecalculated after the initial determination for purposes ofdetermining any benefits.
(B) If a participant dies before the distribution of theparticipant's benefits has begun, distributions to beneficiariesmust begin no later than December 31 of the calendar yearimmediately following the calendar year in which the memberdied.
(6) The board may not:
(A) determine eligibility for benefits;
(B) compute rates of contribution; or
(C) compute benefits of participant's beneficiaries;
in a manner that discriminates in favor of participants who areconsidered officers, supervisors, or highly compensated, asprohibited under Section 401(a)(4) of the Internal Revenue Code.
(7) Benefits paid under this chapter may not exceed themaximum benefits specified by Section 415 of the InternalRevenue Code. If a participant's benefits under this chapterwould exceed that maximum benefit, the benefit payable underthis chapter shall be reduced as necessary.
(8) The salary taken into account under this chapter may notexceed the applicable amount under Section 401(a)(17) of theInternal Revenue Code.
(9) The board may not engage in a transaction prohibited bySection 503(b) of the Internal Revenue Code.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-23
Appropriations
Sec. 23. (a) For purposes of this chapter, the following amounts are
appropriated for each biennium:
(1) From the state general fund, the amount required toactuarially fund participants' retirement benefits, as determinedby the board on recommendation of an actuary.
(2) From the fund, the amount required for administrationpurposes.
(b) The biennial appropriations provided in this section shall becredited to the board annually in equal installments in the month ofJuly of each year of the biennium.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-24
Rollover to eligible retirement plan
Sec. 24. Notwithstanding any other provision of this chapter, to theextent required by Internal Revenue Code Section 401(a)(31), asadded by the Unemployment Compensation Amendments of 1992(P.L.102-318), and any amendments and regulations related toSection 401(a)(31), the fund shall allow participants and qualifiedbeneficiaries to elect a direct rollover of eligible distributions toanother eligible retirement plan.
As added by P.L.98-2004, SEC.18.
IC 33-39-7-25
Administration; service credit
Sec. 25. (a) Notwithstanding any other provision of this chapter,the fund must be administered in a manner consistent with theFamily and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.). Amember on a leave of absence that qualifies for the benefits andprotections afforded by the Family and Medical Leave Act is entitledto receive credit for vesting and eligibility purposes to the extentrequired by the Family and Medical Leave Act, but is not entitled toreceive credit for service for benefit purposes.
(b) Notwithstanding any other provision of this chapter, aparticipant is entitled to service credit and benefits in the amount andto the extent required by the Uniformed Services Employment andReemployment Rights Act (38 U.S.C. 4301 et seq.).
As added by P.L.98-2004, SEC.18.