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2017 Op. Va. Att'y Gen. 1 (2017)

handle is hein.sag/sagva0138 and id is 1 raw text is: 

                          COMMONWEALTH of VIRGINIA

                                           Office of the Attorney General
Mark R. Herring                                                                                  202 North Ninth Street
Attorney General                                                                               Richmond, Virginia 23219
                                                 January 18, 2017                                   Fax 804-786-1991
                                                                                                Virginia Relay Services

        Andrew  R. McRoberts, Esquire
        Essex County Attorney
        1111 East Main Street
        Post Office Box 1998
        Richmond, Virginia 23218-1998

        Dear Mr. McRoberts:

               I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
        the Code of Virginia.

                                                Issues Presented

               You  ask three questions regarding the interpretation of § 51.1-124.13 of the Code of Virginia,
        which requires the forfeiture of pension, retirement, and related benefits provided under the Virginia
        Retirement System (VRS) to public employees convicted of certain felonies:

            1) Does  an employer have discretion under § 51.1-124.13 and Form VRS-180  (Employer
               Request for Forfeiture of Member Benefits) to file Form VRS-180 to initiate forfeiture
               of VRS   benefits once it has determined that an employee's  felony conviction was
               associated with the performance of the employee's job duties;

           2)  Does  the response to the first question above change based on the language of Form
               VRS-180,  in effect on February 4, 2014, indicating if an employee is convicted of a
               felony for misconduct occurring on or after July 1, 2011 and you have determined that
               the felony was in association with the performance of the employee's job duties, you may
               request the employee forfeit all VRS benefits . . . . (emphasis added); and

           3)  Must  an  employer  which   relied on the  permissive language  of  Form       VRS-180
               (Rev. 12/11) as described above in electing not to seek the forfeiture of employee VRS
               benefits in 2014 now reconsider the forfeiture of VRS benefits issue?

                                         Applicable Law  and Discussion

               Title 51.1 of the Code of Virginia establishes pension, retirement, and related benefits for various
        public employees,t including benefits for public employees in positions covered under the Virginia

           ' An employee includes any employee of a locality participating in the Retirement System. VA. CODE ANN.
        § 51.1-124.3 (2013).

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