AAC-24-15-00005-P Reporting Requirements for Elected and Appointed Officials

6/17/15 N.Y. St. Reg. AAC-24-15-00005-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 24

June 17, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF AUDIT AND CONTROL

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAC-24-15-00005-P

Reporting Requirements for Elected and Appointed Officials

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

Proposed Action:

This is a consensus rule making to amend section 315.4 of Title 2 NYCRR.

Statutory authority:

Retirement and Social Security Law, sections 11 and 311

Subject:

Reporting requirements for elected and appointed officials.

Purpose:

To update the reporting requirements for elected and appointed officials.

Text of proposed rule:

§ 315.4 Additional reporting requirements for elected or appointed officials [of] who work for a participating employer of the Retirement System and are required to be reported to the Retirement System.

(a) Record of Work Activities.

(i) Except as otherwise provided in this subdivision, [an] any elected or appointed official who is not paid hourly or does not participate in an employer’s time keeping system that consists of a daily record of actual time worked and time charged to accruals, shall record his or her work activities for a period of three consecutive months. The elected or appointed official should extend the period of his or her record of work activities by the amount of time utilized for vacations, illness, holidays or other reasons during the three-month period. [Such requirement shall not apply to any elected or appointed official who is not a member of the Retirement System nor to any elected or appointed official whose employer maintains a daily record of actual time worked.] The record of work activities must represent months that are not unusually slow or busy. If a position is seasonal in nature, the record of work activities should be kept for an extended period of up to twelve months to capture an accurate account of work activities

In recording the description of work activities, such elected or appointed official shall include the start and end time of each activity performed. The elected or appointed official may also include [time] activities performed outside the normal working hours that require his or her attention to attend 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. During a period that an elected or appointed official is required to be on-call, he or she may only record the time actually spent performing a work-related activity. The elected or appointed official may not include activities that would not be considered work-related such as attending electoral or campaign events, socializing after town board meetings or attending a candidates’ forum.

The elected or appointed official’s initial three-month record of work activities shall be completed within 150 days of [taking] commencing a new or subsequent term of office, or upon joining the Retirement System, on or after August 12, 2009. The elected or appointed official must sign the record of work activities attesting to its accuracy and submit it [and shall be submitted by such official] to the secretary or clerk of the governing board within [180 days of taking office] 30 days of completion. [Such record of activities shall be accepted by such secretary or clerk as submitted without alteration thereof. An elected or appointed official who has prepared a record of activities pursuant to this subdivision for a previous term, may certify in writing to the governing board within 180 days of taking office that his or her duties, responsibilities and hours have not substantially or materially changed. A record of work activities and any certification based upon such record shall not be valid for more than eight years from the date of the taking of office for which the record of activities was initially maintained.] Each such record of work activities and any subsequent recertification shall be retained by the employer for a period of at least [ten] thirty years and full and complete copies thereof shall be provided to the State Comptroller upon his or her request. A record of work activities shall not be valid for more than eight years from the date it was initially maintained. If the hours worked have not substantially or materially increased or decreased during the eight year period, the elected or appointed official may certify to such in writing to the governing board in lieu of maintaining a new record of work activities. The elected or appointed official must submit this certification to the governing board within 180 days of taking a subsequent term of office. . If the hours worked have substantially increased or decreased during the eight year period, the elected and appointed official must prepare, sign and submit a new record of activities.

(ii) In the event the elected or appointed official or the employer determines the initial recording of work activities for a period of three consecutive months is not representative of the average number of hours worked by the elected or appointed official, he or she [may] must record work activities during the same calendar year for an alternative period of three consecutive months which is representative of the average number of hours worked by such official. Such [alternate] record of work activities shall be signed by such elected or appointed official and submitted to the secretary or clerk of the governing board within thirty days of the completion of the record.

The failure of an elected or appointed official to record, sign and submit a record of work activities within the required time frame shall result in the suspension of service crediting and Retirement System membership benefits. The suspension of service crediting will remain in effect until such time as the elected or appointed official completes a record of work activities that complies with the requirements of this regulation and submits it to the secretary or clerk of the governing board. The record of work activities must be submitted to the secretary or clerk prior to the elected or appointed official ending service in that title.

(b) Completion of the Standard Work Day and Reporting Resolution.

In addition to the reporting requirements set forth in subpart 315.3 of this Part, and for the sole purpose of reporting days worked to the Retirement System, the governing board of a participating employer of an elected or appointed official shall establish, by resolution, a standard work day for each elective or appointive office or position using the Standard Work Day and Reporting Resolution form provided by the Retirement System or a form or format approved by the Retirement System. Such Standard Work Day and Reporting Resolution shall indicate (i) the title of the position; (ii) the first and last name of the elected or appointed official holding the position; (iii) the last four digits of the Social Security Number of each elected or appointed official; (iv) the Registration Number of each elected or appointed official; (v) the number of hours prescribed as a standard work day equal to no fewer than six hours nor more than eight hours for each such elective or appointed office or position; [(ii)] (vi) the full month, day and year of the commencement and expiration of the term for each such office or position. [; (iii)] For each elected or appointed official who is not paid hourly or does not participate in an employer’s time keeping system that consists of a daily record of actual time worked and time charged to accruals and who has submitted a record of work activities pursuant to paragraph (i) of subdivision (a) of this section, the employer shall indicate the average number of days worked per month in the Resolution. In the event that the [employer maintains an actual daily record of time worked for the elected or appointed official or that the]official[ holding the office ] has not recorded and submitted to the secretary or clerk of the governing board his or her record of work activities for a period of three consecutive months the employer shall so indicate in the Resolution[; and (iv) for each elected and appointed official who has submitted a record of work activities pursuant to paragraph (i) of subdivision (a) of this section, the total number of days per month to be reported based on such record of work activities].

The governing board shall determine whether activities listed on the record of work activities are official duties of the position. Activities that do not consist of official duties as described in paragraph (i) of subdivision (a) of this section are to be excluded from the calculation of the average number of days worked per month to be listed on the Standard Workday and Reporting Resolution [For the purpose of determining days worked, no fewer than six hours nor more than eight hours shall be established as a full-time standard work day. ] Such Standard Work Day and Reporting Resolution [resolution] shall be adopted [no later than] at the first regular meeting held after a record of work activities has been submitted [180 days following commencement of the term of office and shall be applicable to employers whose elected and appointed officials are members of the Retirement system and are reported to the Retirement System by the employer]. In the event an elected or appointed official submits [an alternate] a new record of work activities pursuant to Paragraph (ii) subdivision (a) of this section, the governing board [may ] must pass an additional resolution for that individual amending the [maximum total number of ] average number of days worked per month [ that will be reported for such official] based on such record of work activities [ and directing the appropriate personnel to submit an adjustment report amending the number of days previously reported to the Retirement System].

(c) Standard Work Day and Reporting Resolution: Filing and Posting Requirements.

The Standard Work Day and Reporting Resolution [resolution] required by subdivision (b) of this section shall be prominently posted on the employer’s website for a minimum of thirty days or, in the event the employer does not maintain a website available to the public, such [resolution] Standard Work Day and Reporting 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 employer[ for a minimum of thirty days]. After the thirty day posting period, the Standard Work Day and Reporting Resolution shall be made available either through the website or upon request. The elected or appointed official’s Social Security Number (last four digits) and Registration Number must be omitted from the copy of the Standard Work Day and Reporting Resolution that is publicly posted. A certified copy of the Standard Work Day and Reporting Resolution [] and an affidavit of posting shall be filed by the secretary or clerk of the governing board with the Office of the State Comptroller within [45] 15 days [of the adoption of the resolution] after the public posting period has ended. The failure of the governing board to adopt such Standard Work Day and Reporting Resolution [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] Standard Work Day and Reporting Resolution is adopted, posted and filed with the Comptroller. In the event the governing board submits an additional Standard Work Day and Reporting Resolution [resolution] amending the [maximum total] average number of days worked per month [that will be reported] for an elected or an appointed official pursuant to subdivision (b) of this section, such additional [resolution] Standard Work Day and Reporting Resolution shall be subject to the posting and filing requirements set forth in this subdivision.

(d) Reporting Days Worked on the Monthly (Quarterly/Semi-Annual/Annual) Report.

Once a Standard Work Day and Reporting Resolution is passed, the average number of days worked per month listed on the Standard Work Day and Reporting Resolution must be provided to the individual(s) responsible for reporting days worked to the Retirement System on the employer’s behalf. These individual(s) must ensure that the days worked reported on the Standard Work Day and Reporting Resolution are accurately converted to correspond with the official’s payroll frequency and recorded on the report submitted to the Retirement System.

In the event that the report submitted to the Retirement System does not reflect the average days worked per month documented on a Standard Work Day and Reporting Resolution, then retroactive adjustments must be submitted for the period covered by the corresponding record of work activities.

A record of work activities submitted by an elected or appointed official, pursuant to section 315.4, should be used as the basis for his or her days worked reported for prior terms served in the same title, if no record of work activities was submitted for the prior terms.

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

Jamie Elacqua, Office of the State Comptroller, 110 State Street, 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.

Consensus Rule Making Determination

This is a consensus rulemaking proposed for the sole purpose of clarifying and updating the additional reporting requirements for elected and appointed officials. This amendment relates to clarifying the additional reporting requirements for elected and appointed officials and it has been determined that no person is likely to object to the adoption of the rule as written.