Public officers are eligible for membership in NYSLRS. This applies regardless of whether the individual is elected or appointed as a public officer. You must give them the opportunity to join NYSLRS, and, if they join, you must include their days worked, earnings and contributions on your retirement monthly report. Independent contractors, who are not public officers, are not eligible for membership.
A public officer is a person either elected or appointed to a government position with the following general characteristics:
- The position is authorized by statute, resolution or charter to exercise part of the power of that governmental entity.
- The duties of the position involve the exercise of discretion on behalf of that government 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.
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.
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,
- Act in their capacity as an officer for their established term,
- Take and file an oath or affirmation at the beginning of each new term, if reappointed, and
- Provide these oaths of office to the Office of the State Comptroller if requested as part of an employee/independent contractor review.
If you determine that an individual is an appointed public officer, you must submit the Certification for Individuals Engaged in Certain Professions (RS2414) (or the Certification for Determining Independent Contractor or Employee Status (RS2415) for individuals hired before April 1, 2008). You must also submit as many of the following documents as are available to justify this classification:
- The resolution of the governing board creating the position;
- The resolution of the governing board appointing the individual to the position;
- A copy of the oath of office (if multiple oaths, provide a representative sample); and
- Information documenting any residency requirements (if required) or the enactment of local legislation waiving or changing the residency requirement.
If a resolution creating the position is not available, submit a job description and any other documents to support that the position is a public office.
If you determine that an individual is not a public officer, you must complete the questions on the Certification form to determine whether he or she should be classified as an employee or an independent contractor.
If you need assistance determining if a position is a public office, email our Pension Integrity Bureau.