A Public Officer is a person either elected or appointed to a governmental position with the following general characteristics:
- The position is authorized by statute, resolution or charter to exercise part of the sovereign power of the governmental entity.
- The duties of the position involve the exercise of discretion on behalf of the governmental entity. If the duties of the position are routine, subordinate, advisory, or directed, then the position is more likely to be a position of employment, rather than a public office.
- The State or local enactment creating the position refers to it as an “office.”
- The position has a fixed or definite term.
- The person holding the position files an oath of office.
- The compensation for the position does not depend on the number of hours worked.
- Incumbents of the position may be compensated either through the employer’s payroll system or by voucher.
- Incumbents of the position generally must reside in the jurisdiction they are serving.
Section 10 of the Public Officer’s Law requires every public officer to take and file an oath or affirmation prior to the discharge of any of their official duties. Public officers are authorized to act in their capacity as an officer for their established term. Any public officer who is re-appointed should take and file an oath or affirmation at the beginning of each new term. In addition, these oaths of office shall be provided to the Office of the State Comptroller if requested as part of an employee/independent contractor review.
Public officers are eligible for membership in the New York State Employees’ Retirement System. This applies regardless of whether the individual is elected or appointed as a public officer. You must give them the opportunity to join the System and, if they join, you must include their days worked, earnings, and contributions on your retirement monthly report.
Some positions considered public offices include, but are not limited to, Mayor, Town Supervisor, Town, Village or County Clerk, Town or Village Justice and District Attorney.
If you determine that an individual is an appointed public officer, you will need to supply as many of the four documents listed on the Certification for Individuals Engaged in Certain Professions (RS2414) and Certification for Determining Independent Contractor or Employee Status (RS2415) as possible to justify this classification. If a resolution creating the position is not available, please submit a job description and any other documents in support of the position being a public office.
If you need assistance determining if a position is a public office, please email our Pension Integrity Bureau.