Attorney General: Honorable William E. Curry, Jr., Office of the Comptroller, 1991-015 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 12, 1991

Honorable William E. Curry, Jr.
State Comptroller
Office of the Comptroller
55 Elm Street
Hartford, CT 06106

Dear Mr. Curry:

In 1961, the Attorney General's Office issued an opinion to the State Employees' Retirement Commission concerning the interaction between 1961 Conn. Pub. Acts No. 295 and federal Social Security reporting requirements. The opinion concluded that the State must report, for FICA (Federal Insurance Contributions Act) purposes, all fees and salaries, from all sources, paid to sheriffs and chief deputy sheriffs. Former State Comptroller J. Edward Caldwell requested us, by letter dated December 18, 1990, to re-evaluate our 1961 opinion in light of current Social Security laws.

We conclude that, under federally-mandated Social Security reporting requirement, the State must report to the Social Security Administration ("SSA") all remuneration paid by t he State to sheriffs and chief deputy sheriffs in the form of both salaries and fees, with the exception of fees paid for service of process.

Social Security coverage is provided to state employees who are remunerated by salary, 20 C.F.R. 404.1020(a)(1) (1989), or by fee, 20 C.F.R. 404.1073(b)(1), so long as the State's section 218 agreement provides for such coverage. 26 U.S.C.A. 3121(b)(7)(E).

The section 218 agreement between the State of Connecticut and the federal government extends Social Security coverage to services performed by individuals as employees of the State, when such individuals are compensated by both salary and fee(s).

By statute, sheriffs and chief deputy sheriffs are employees for purposes of the State Employees Retirement System insofar as their salaries are concerned. Conn. Gen. Stat. 5-187, 5-160. Members of the State Employees Retirement System are covered under the State's section 218 agreement with SSA. 1 The State is thus responsible for withholding FICA taxes on salaries paid to sheriffs and chief deputy sheriffs.

Public Act 295, as cited in our 1961 opinion, is currently codified in Conn. Gen. Stat. 5-187, which states:

5-187. Sheriffs and chief deputies

(a) For the purposes of this chapter, the sheriff of each county and the chief deputy sheriff of each county are employees of the state so far as salaries received by them from the state are concerned, including fees on a judicial department payroll but excluding other fees paid in lieu of or in addition to salary.

(b) The provisions of subsection (f) of section 5-168 shall apply to sheriffs and their chief deputies.

(c) The status of sheriffs and their chief deputies as stated in subsection (a) shall be retroactive to September 1, 1939.

(Emphasis added).

At the present time sheriffs and chief deputy sheriffs do not receive any fees on a Judicial Department payroll.2

Chief deputy sheriffs may earn fees, in addition to their salaries, Conn. Gen. Stat. 6-40, for designated duties related to court attendance, transportation, cell block supervision, and metal detection, Conn. Gen. Stat. 6-41, as well as for riot control, Conn. Gen. Stat. 6-43, 6-34. Sheriffs, on the other hand, must collect and deliver all3 such fees to the State. Conn. Gen. Stat. 6-33.

Connecticut's section 218 agreement incorporates the definition of "employee" as defined in the Social Security Act.4 Under that definition, an "employee" is, inter alia, any individual who has the status of an employee under the usual common law rules. 42 U.S.C.A. 410(j)(2) (1990). When sheriffs and chief deputy sheriffs perform the above-described duties for which they receive a fee, they are functioning as employees under the common law definition of employee. See 20 C.F.R. 404.1007. In general, a worker functions as an employee when the person hiring him retains the right to direct how , when, what, and where the employee works. Id. We also note the IRS private letter ruling, CCH LTR 9028036, April 9, 1990 (microfiche), has concluded that Connecticut deputy and special deputy sheriffs function as employees for federal tax purposes when performing the identical duties.5

In addition to the above-described fees, sheriffs and chief deputy sheriffs may also earn fees for service of process. Conn. Gen. Stat. 6-33, 52-261, 52-261a. Both sheriffs and chief deputy sheriffs may retain such fees as personal income. Id.

When they serve process, sheriffs and chief deputy sheriffs function as independent contractors rather than employees under the common law definition. See IRS Rev. Rul. 70-574, 1970-2 C.B. 222 (process servers who serve legal papers for a company on behalf of various attorneys are not employees of the company for FICA purposes, by application of the common law guidelines for employment status). Notably, they may be hired to serve process by the State or by third parties. When process is served for the State, sheriffs and chief deputy sheriffs are paid on a vendor payment system utilized for all independent contractors doing business with the State.

Thus, although section 5-187 concludes that sheriffs and chief deputy sheriffs are not employees of the State in regard to all (non-Judicial Department payroll) fees, they are nonetheless functioning as common law employees when they perform their duties, with the exception of service of process. Therefore, because chief deputy sheriffs who earn fees pursuant to Conn. Gen. Stat. 6-41, 6-43, and 6-34 are functioning as common law employees of the State, such fees are covered by the State's section 218 agreement. Consequently, the State must report chief deputy sheriffs' earning from such fees, in addition to their salaries, to the SSA for purposes of Social Security coverage.

In contrast, because sheriffs and chief deputy sheriffs are functioning as independent contractors when they serve process, earning from such activities should not be reported to the SSA by the State.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Judith A. Brown
Assistant Attorney General

RB/JAB/bjg


1 Modification 62 (app. April 1, 1958) to the State's section 218 agreement specifically added coverage for members of the State Employees Retirement System but could not be implemented because the original agreement only covered municipal employees. Consequently, Modification 65 was passed to extend coverage to both state and municipal employees, except those specifically excluded. Mod. 65, app. May 20, 1958. Modification 68 excluded services compensated on a fee basis. Mod. 68, app. May 29, 1958. However, where a government employer may exclude from coverage services paid on a fee basis, such exclusion is limited t those positions compensated entirely by fee. 28 Conn. Op. Atty. Gen. 159 (1954). Thus, a governmental employee compensated by both such salary and fee. Id.

2 At the time section 5-187 was enacted, fees were paid on a Judicial Department payroll for court attendance, cell block supervision, metal detection, and riot control. Effective January 1, 1981, court attendance fees became payable through the Comptroller's business office payroll unit, and cell block, metal detection, and riot control fees through the sheriff's office as vendor payments.

3 Sheriffs need not collect from the State fees which would subsequently be delivered by the sheriffs to the State. Conn. Gen. Stat. 6-33.

4 The State's section 218 agreement, as amended on March 31, 1958, refers to the definition of "employee" as defined in section 210 (k) of the Social Security Act. Such definition is currently contained in section 410(j) of the Act. 42 U.S.C.A. 410(j) (1990).

5 The IRS ruling provides a comprehensive analysis of the common law definition of employee as applied to deputy and special deputy sheriffs when performing the duties of prisoner transport, courtroom security, and jury sequestration.


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