AAC-42-08-00002-P Additional Reporting Requirements for Elected and Appointed Officials in Relation to Reporting Requirements

10/15/08 N.Y. St. Reg. AAC-42-08-00002-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 42

October 15, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF AUDIT AND CONTROL

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAC-42-08-00002-P

Additional Reporting Requirements for Elected and Appointed Officials in Relation to Reporting Requirements

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Renumbering of section 315.4 to 315.5 and addition of new section 315.4 to Title 2 NYCRR.

Statutory authority:

Retirement and Social Security Law, sections 11, 34, 311 and 334

Subject:

Additional reporting requirements for elected and appointed officials in relation to reporting requirements.

Purpose:

To provide further guidance for elected and appointed officials in relation to reporting requirements.

Text of proposed rule:

Section 315.4 is renumbered to section 315.5 and a new section 315.4 is added to read as follows:

315.4 Additional reporting requirements for elected or appointed officials of a participating employer.

(1) Standard Work Day Resolution. In addition to the reporting requirements set forth in subpart 315.3 and for the sole purpose of reporting service credit to the retirement system, at each re-organization meeting held on or after January 1, 2009, the governing board of a participating employer of an elected or appointed official shall establish, by resolution in a form prescribed by the Comptroller, a standard work day for each such elective or appointive office, which shall state the number of hours prescribed for the position in a standard work day. For the purpose of determining service credit, in no event shall less than six hours be considered to be a full day of work. Said resolution will list the term expiration and standard work day for each elective or appointive office. Whenever a new elective or appointive office is established by an employer, a resolution setting the standard work day shall be adopted by the governing board and posted in the manner set forth in this regulation. All such resolutions shall be posted on the employer’s website for a minimum of thirty days. In the event the employer does not maintain a website that is available to the public, the resolution shall be posted on the official sign-board or at the main entrance to the office of the clerk for the municipality or similar office of the participating employer for a minimum of thirty days. A certified copy of the resolution and an affidavit of posting shall be filed with the Comptroller within 45 days of adoption. In the event a resolution is not adopted within ninety days of establishment of a position or, for a previously established position, the re-organization meeting, no service credit shall be provided for the position until such time as a resolution is adopted, posted and filed with the Comptroller.

(2) Record of activities. In the event an employer does not maintain an actual record of time worked on a daily basis for an elective or appointive office, the official holding the office shall record his or her work activities for a period of three consecutive months. In preparing the record, the official may consider factors that require his or her attention outside the normal working hours for the purpose of actually attending to official duties, including responding to an emergency, attending an employer sponsored event or meeting with or responding to members of the public on matters of official business. Such record of activities shall be completed within 150 days of taking the office. The record of activities shall be submitted by the official to the secretary or clerk of the governing board within 180 days of the board’s adoption of the standard work day resolution with a certification, in a form prescribed by the Comptroller and signed by such official, that the official has filed the required record of activities with the secretary or clerk. The secretary or clerk shall promptly file the certification with the Comptroller. Each such record of activities shall be retained by the employer for a period of ten years and full and complete copies shall be provided to the Comptroller upon his or her request. A record of activities need not be prepared by an elected or appointed official who is not a member of the Retirement System. The failure of the official to maintain and timely file the record of activities shall result in the suspension of service crediting and retirement system membership benefits for the elected or appointed official until such time as the record is maintained and a certification is filed with the Comptroller.

(3) Reporting Resolution; Creditable Time. At the first regular meeting held after submission to the governing board of the official’s record of activities, the governing board shall also authorize, by resolution, the maximum total number of days per month based upon the standard work day and the record of activities that will be reported for the elected or appointed official. Said resolution shall be posted on the employer’s website for a minimum of thirty days. In the event the employer does not maintain a website that is available to the public, the resolution shall be posted on the official sign-board or at the main entrance to the office of the clerk for the municipality or similar office of the participating employer for a minimum of thirty days. A certified copy of the resolution and an affidavit of posting shall be filed with the Comptroller within 45 days of the meeting. The failure of the governing board to adopt such resolution shall result in the suspension of service crediting and retirement system membership benefits for the elected or appointed official until such time as the resolution is adopted, posted and filed with the Comptroller.

Text of proposed rule and any required statements and analyses may be obtained from:

Jamie Elacqua, Office of the State Comptroller, 110 State St., Albany, NY 12236, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Sections 34 and 334 of the Retirement and Social Security Law, as added by chapter 510 of the Laws of 1974, require that the Comptroller adopt rules and regulations, which shall have the force and effect of law, for the reporting of service, salary and deductions information for all member-employees of employers that participate in the New York State Employees' Retirement System and the New York State Police and Fire Retirement System. Said statutes further provide that the chief fiscal officer of the participating employer, or other officer exercising similar duties, shall file the required report in such form and at such times as we may be prescribed in the said rules and regulations. Sections 34 and 334 make the refusal or willful neglect to file the required report a violation which shall subject the officer so refusing or neglecting to a penalty of $5 per day for each day's delay beyond seven days. Sections 11 and 311 of the Retirement and Social Security Law establish the Comptroller as the administrative head of the retirement system and authorize him to adopt and amend rules and regulations for the administration and transactions of the business of the retirement system.

2. Legislative objectives: Elected officials, appointed officers and employees of participating employers are eligible for membership in the retirement system. Public employers participating in the retirement system are required to report service and salary information for all their elected officials, appointed officers and employees so that the retirement system may accurately determine the employers' obligation to contribute to the funding of the retirement system, the members' entitlement to the benefits administered by the retirement system and, ultimately, calculate the amount of benefits due to members upon retirement or death. The existing regulation instructs employers to report elected officials, appointed officers and employees who are active members of the retirement system or who are in the process of being registered to membership and it provides some instructions for the reporting of these individuals. In particular, employers are instructed to report the number of days worked for each member paid on a payroll during the month. Recognizing the difficulty in reporting days worked for elected officials and appointed officers, who may be called upon to render service to the public outside regular business hours, the existing regulation authorized the employer to adopt a sample month method in lieu of an actual time record. Under this method, the official /officer keeps a record of public activities for a period of one month which is then submitted to the governing board and used by the board to establish both a standard work day and the number of days worked per month to be reported by the employer for the official/officer.

3. Needs and benefits: The existing regulation fails to take into account changing circumstances in that it requires that the sample month be keep only once during the entire time the member holds the elective or appointive office. Furthermore, the one month recording period has proven to be insufficient to provide an accurate record of the actual number of days worked by an official. Finally, the existing regulation does not include any time frames for the completion of the sample month or the establishment of the standard work day and number of days worked to be reported to the retirement system. Consequently, it is not uncommon to find that, as elected officials and appointed officers near retirement age and begin to make inquires into their prospective benefit; the records of the retirement system are incomplete or incorrect. The amendment to the existing regulation provides employers with additional guidance and time frames to aid them in establishing a standard work day and the number of days worked to be reported for their elected officials and appointed officers. The amendment requires that, at each reorganization meeting held on or after January 1, 2009, the governing board of the employer establish by resolution the standard work day for each elective or appointive office. In the event the employer does not maintain daily time records for an elective or appointive office, the officer is required to keep a record of activities for a period of three consecutive months and submit it to the governing board. The employer is required to maintain a copy of the record of activities for a period of ten years. Based upon the previously established standard work day and the record of activities, the governing board shall then authorize, by resolution, the maximum total number of days per month to be reported for the official. Finally, the amendment requires submission of the record of activities by the member, public posting of the resolutions on the employer's website or other public place, and the filing of certified copies with the Comptroller all within established time periods. Failure to satisfy these requirements will result in the suspension of service crediting and retirement system membership benefits for the official.

4. Costs: While there may be a modest administrative cost for employers associated with the preparation, posting and submission of the resolutions, we anticipate that any such cost will be offset by the savings to employers resulting from increased accuracy of record keeping and timely reporting of days worked to the retirement system.

5. Local government mandates: The proposed rule imposes a duty on county, city, town, village, school district, fire district or other special district participating employers to post resolutions either on their website, official sign-board or other public place and to submit them to the retirement system. It will also require that they maintain a copy of a record of activities for a period of ten years.

6. Paperwork: To provide more accurate and timely reporting of the standard work day and the days worked by elected officials and appointed officers, the proposed amendment will require the employer to prepare, post and submit resolutions following each reorganization meeting and at other times as set forth in the rule.

7. Duplication: This action does not conflict with or duplicate any state or federal requirements.

8. Alternatives: No significant alternatives were considered.

9. Federal standards: Not applicable

10. Compliance schedule: Not applicable

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not submitted with this notice because the proposal will not impose any adverse economic impact or significant reporting, record keeping or compliance requirements on small businesses or local governments. Rather, this proposal may result in an economic savings by local governments as a result of the reduction in incorrect and untimely reporting of days worked for elected officials and appointed officers.

Rural Area Flexibility Analysis

This action will not impose any adverse economic impact, reporting, record keeping or other compliance requirements on public or private entities in rural areas.