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

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.

pril 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:

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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

yees 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.