Opinion 2007-7

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


[Edited for Publication]

PUBLIC OFFICERS AND EMPLOYEES -- Retirement Benefits (reporting “days worked” for elected officials)

STATE COMPTROLLER -- Reporting to (by employers for “days worked” by elected officials)

WORDS AND PHRASES -- "Days Worked" (meaning of for purposes of 2 NYCRR 315)

RETIREMENT AND SOCIAL SECURITY LAW §§ 34, 334: In reporting “days worked” of an elected official for purposes of 2 NYCRR 315, an employer may record time actually spent by the elected official to perform an official duty, but may not record blocks of time when an elected official is merely available to constituents.

This is in response to your inquiry regarding regulations applicable to the New York State and Local Employees’ Retirement System (the “Retirement System”) relative to the calculation of time worked for elected officials.

The regulation in question, 2 NYCRR 315, was promulgated to further the intent of Retirement and Social Security Law (“RSSL”) §§ 34 and 334, which require the reporting of service and salary information by employers participating in the Retirement System. This important information is necessary for the determination of an employer’s financial obligation to the Retirement System and, ultimately, the benefits payable to the members of the Retirement System. As a defined benefit plan, Retirement System benefits generally involve a calculation formula based upon a member’s final average salary and total service credit. Therefore, the number of days worked by the member, their creditable service, is an element of the formula.

2 NYCRR 315 directs an employer to report, on a monthly basis, the number of days worked by each member/employee based upon the standard number of hours required by the employer for the position in which service is rendered. However, a full day must contain a minimum of six hours. This requirement comes directly from the RSSL ( see e.g. RSSL §§ 446, 513, 609) and, as explained in the regulation, the Retirement System will prorate credit for service that amounts to less than a full day.

While the reporting of days worked is a fairly simple matter for the vast majority of members who have fixed schedules and work days, the Retirement System recognizes the difficulty this may present with respect to elected officials. Therefore, the regulation suggests that the employer may consider factors that require an elected official’s attention outside the normal working hours. Examples given for such factors include attending to the official duties of the office and the need to be available to the public. Such activities may take the form of responding to an emergency in the town, attending a town sponsored event, addressing a constituent concern about official town business by telephone call at home or direct contact at the grocery store or in the gym, whether at night or on the weekend. In each of these situations, the elected official is performing his or her official duties and has made himself or herself available to address a matter of town concern.

A conscientious public official may well consider that he or she is “on call” and available to the public virtually twenty-four hours a day and, clearly, to the extent that the official is actually called upon to perform an official duty, that time would be considered as part of the work day. We do not believe, however, that an elected official may record blocks of time when he or she is merely available to the constituents and “likely” to be interrupted. For example, an elected official may not simply record as time worked those hours spent at home, at the grocery store, or at the gym in anticipation of a possible or even “likely” interruption that may never come.

August 30, 2007

Bruce R. Millman, Esq., Labor and Employment Counsel
Town of North Castle