SSR 67-44: SECTION 218(s). -- STATE AND LOCAL COVERAGE -- COMMISSIONER'S RULING ON STATE'S REQUEST FOR REVIEW -- NEBRASKA CONSTABLES AND JUSTICES OF THE PEACE

20 CFR 404.1270-404.1274

SSR 67-44

Pursuant to the State's request for review under section 218(s) of the Social Security Act, the Commissioner affirmed assessments made on the basis that services performed by wage earners as justice of the peace and as constable, respectively, were performed as employees of the State or a political subdivision of the State and thus were covered under section 218 of the Social Security Act and the Nebraska agreement for coverage of State and local employees for periods prior to September 14, 1960.

Section 218(s) of the Social Security Act, as amended, provides that where an assessment of an amount due by a State under a Federal-State agreement has been made pursuant to section 218, or a State's claim for a credit or refund of an overpayment under such agreement has been disallowed, or a State has been allowed a credit or refund of an overpayment under such agreement, the Secretary shall, upon written request filed by the State within a stipulated time, review such assessment, disallowance or allowance stating the basis therefor. The Secretary has delegated to the Commissioner of Social Security authority to make reviews and findings and to give notice of his findings as required by section 218(s).

The State of Nebraska timely requested a review pursuant to section 218(s) of the assessments made pursuant to a determination that the services of X, a justice of the peace, and of Y, a constable, were performed in an employment relationship with the State or a political subdivision of the State and were covered under the terms of the State's agreement with the Secretary under section 218 for periods prior to September 14, 1960.

The facts in this matter are that X performed services as a justice of the peace in Nebraska from 1953 through January 1955. His duties were those normally associated with a justice of the peace; that is, he tried civil and criminal cases within his jurisdiction. Justices of the peace are elected by the voters to serve a definite term. Y performed services as a municipal court constable from April 15, 1958, until after September 13, 1960. The duties of a constable are similar to those normally associated with a sheriff or other peace officer. The constable is required by statute to serve and execute writs and warrants, to apprehend individuals violating the criminal laws of the State, to deliver prisoners to the county jail, and generally to keep the peace in his proper city.

Both justices of the peace and constables in Nebraska are compensated by means of fees received from members of the general public. These fees are generally prescribed by statute as remuneration for the performance of specific acts.

The Revised Statutes of Nebraska as pertinent hereto, provide:

Section 68-602 -- Terms, defined. As used in sections 68-601 to 68-619, and sections 68-621 to 68-630, (the legislation enabling the State to enter into a section 218 agreement) unless the context otherwise requires:

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(2) Employment shall mean any service performed by an employee in the employ of the State of Nebraska or any political subdivision thereof . . .

(3) Employee shall include an officer of a State or political subdivision thereof;

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Section 68-603 -- Agreement with Federal government; State agency; approval of governor. The State agency, with the approval of the governor, is hereby authorized to enter, on behalf of the State of Nebraska, into an agreement with the Secretary of Health, Education, and Welfare, consistent with the terms and provisions of sections 68-621 to 68-630, for the purpose of extending the benefits of the Federal old-age and survivors insurance system to employees of the State or any political subdivision thereof with respect to services specified in such agreement which constitute employment as defined in section 68-602 . . .

Section 11-119 -- Bonds; terms; penal sums. The following named officers shall execute as bond with penalties of the following amounts:

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(39) Each constable, three hundred dollars;

(40) Each justice of the peace, two hundred and fifty dollars;

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Section 26-1, 172 -- Constables and sheriffs; general powers. All constables and sheriffs shall be ministerial officers in municipal courts in their respective jurisdictions, in civil and criminal cases, and civil and criminal processes may be executed by them throughout the jurisdiction.

Section 26-1, 177 -- Constables and sheriffs; assists; keeping the peace; duties. It shall be the duty of every constable and sheriff to apprehend on view or warrant, all felons, and disturbers and violators of the criminal laws of the State, . . . and generally to keep the peace in his proper city.

Section 26-1, 183 -- Constables; appointment; number; removal; . . . Each municipal judge shall appoint one constable immediately after taking office, and such constable shall serve until removal from court, which power of removal is hereby given;

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Section 29-204 -- Constables; powers and duties. Constables shall be ministerial officers of the courts held by justices of the peace in criminal cases, within their respective counties, and it shall be their duty to apprehend and bring to justice felons and disturbers of the peace within their respective counties. They shall have power, and they are hereby authorized to execute all writs and process in criminal cases throughout the county . . . .

Section 24-521 -- Constables, appointment; term; removal. It shall be the duty of each justice of the peace and each county judge to appoint one constable. Said constable shall be appointed by the justice of the peace or judge of the county court immediately after taking office. Each of said constables shall serve for a term of two years unless sooner removed . . . .

Article V, section 1. Power vested in courts. The judicial power of the State shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts inferior to the supreme court as may be created by law; but other courts may be substituted by law for justices of the peace within such districts, and with such additional civil and criminal jurisdiction, as may be provided by law.

Article V, Section 18. Justice of the peace; jurisdiction. Justices of the peace shall be elected in and for such districts for such term and have and exercise such jurisdiction as may be provided by law; but no justice of the peace shall have jurisdiction in any civil case when the amount in controversy shall exceed two hundred dollars; nor in a criminal case when the punishment may exceed three months imprisonment, and a fine of over one hundred dollars or both; nor in any matter wherein the title or boundaries of land may be in dispute.

Article V, Section 20. Officers in this article; tenure; duties; compensation. All officers provided for in this article shall hold their offices until their successors shall be qualified and they shall respectively reside in the district, county or precinct from which they shall be elected or appointed. All officers, when not otherwise provided for in this article, shall perform such duties and receive such compensation as may be prescribed by law.

There is no disagreement as to these facts. It is the State's view, however, that constables and justices of the peace are not employees for purposes of social security coverage because they are not subject to sufficient control over the manner and method of performing their duties to be employees under the usual common-law rules for determining an employer-employee relationship. In addition, the State contends that justices of the peace and constables receive no salary and hence no reportable wages.

The Commissioner found, on review pursuant to the State's request, that under State law constables and justices of the peace in Nebraska are public officers. As public officers, the Commissioner found, they are employees for social security coverage purposes under the terms of the agreement between the State of Nebraska and the Secretary of Health, Education, and Welfare by which coverage was extended to the services of employees of the State and its political subdivisions, the State legislation which enabled the State to enter into such an agreement, and section 218(b)(3) of the Social Security Act. The Commissioner also found that the fact that justices of the peace and constables received their compensation from third parties did not defeat the finding of an employer-employee relationship or a finding that the amounts were wages. The Commissioner found further that these fees constituted remuneration for employment and thus were wages for social security purposes. On the basis of these findings, the Commissioner affirmed the assessments.

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