HomeMy WebLinkAbout9 - Council as City EmployeesCITY OF NEWPORT BEACH
Administrative Services Department
Resource Management • Fiscal Services • M.I.S. • Revenue • Accounting
January 5, 2001
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dennis Danner, Administrative Services Director 40•X0
SUBJECT: CHANGES IN CITY COUNCIL COMPENSATION
Executive Summary
The IRS has recently taken the position that City Council Members should now be treated as
employees, rather than independent contractors, for tax purposes. This will result in a number
of changes in the way compensation for City Council Members is handled throughout the
year. It will also result in changes in various benefits. Although this change adds the
requirement for withholding, as well as imposing several complicating factors, the net result
will be positive for individual Council Members in most, if not all cases.
This report is intended to provide fairly detailed information regarding these changes.
However, some of these programs are complex, and not all aspects of each benefit could be
covered. If the Council would like, staff is prepared to present additional information and
handle the administrative requirements regarding enrollment forms, tax forms, etc. at a time
that is convenient for Council Members.
Background
The City Charter specifies that compensation for City Council Members is considered to be an
expense reimbursement, rather than salary or wages. For that reason, the City has never
classified Council Members as employees, and compensation payments have been in the form
of monthly checks not issued through the payroll system. For tax purposes, nothing was
withheld, and an IRS form 1099, rather than a form W -2, was issued to each Council Member
at the end of each year.
From what we have read, and based upon information provided by local government tax
experts over the past few years, it has become clear that this characterization of Council
Members as independent contractors rather than employees was being viewed more and more
skeptically by the IRS. In the most recent annual tax workshop, we were finally informed that
for tax purposes, the IRS considers locally elected officials to be defined as employees in
most cases (including ours), with City Charters or any other local regulations notwithstanding.
January 5, 2001
Page 2
Specific Changes
Although City Council Members will now be classified as employees, their compensation
breakdown will not fully coincide with that of any other category of the City's full -time or
part-time employee groups. Therefore even though Council Members are now employees,
they are still in a special class. With a few "special case" exceptions, their array of benefits
most closely aligns with that of most part-time employees. Following is a list of
administrative and procedural aspects of revised Council Member pay and benefits.
Timing. Beginning with the pay period ending January 12 "' (payday January 19 "'), Council
Member checks will be generated as part of the biweekly payroll system.
Withholding. The City will commence withholding for Federal Tax, State Tax, and Medicare.
Prior to the 16 "', the City will need to have an IRS form W -4 on file for each Council
Member. We request that each Council Member stop by either Human Resources or Payroll
during normal business hours to fill out this form, or, if that is inconvenient, call extension
3302 or 3126 to make other arrangements (unless the City Council decides to take care of
these requirements as part of a special information meeting, as per the Executive Summary
above).
Cafeteria Plan. City Council Members are receiving a non - taxable allowance of up to $450
toward the cost of participation in the City's medical, dental, and related health benefit plans.
Beginning now, Council Members will have the option of converting' any unused portion of
this allowance to cash, subject to the following restrictions.
• There is a mandatory $16 minimum contribution toward Medical coverage, even if no
plan is selected.
• Any employee not participating in one of the City's medical insurance plans must
demonstrate proof of other, existing insurance which would duplicate coverage. and
sign an appropriate waiver, before being permitted to "opt out" of City coverage. This
pertains only to medical insurance, not to other health benefits.
• Any amount of the allowance taken in cash is taxable.
Deferred Compensation. Council Members will be eligible to participate in the City's IRC
457 Deferred Compensation program, which is administered by Great West Life. Up to 25%
of City compensation, not including Cafeteria Plan benefits, (to a current maximum of $8,500
per year) can be contributed to this program on a pre -tax basis. There is no matching
contribution by the City. This is a self - directed defined contribution plan, and funds can be
invested in any of about 35 investment alternatives at the direction of each individual
participant. The money can be withdrawn at the time a Council Member leaves office (it is
taxable at that time if this is done), or it can be retained in the account until retirement.
Current regulations do not permit this money to be rolled into an IRA or 401k. There is a
number of other controlling regulations that impact the program.
January 5, 2001
Page 3
The City's Great West Life representative is available to assist participants on site in City Hall
each Wednesday morning. However, if there is sufficient interest in participating in this
program by Council Members, we will arrange for an introductory presentation and sign up
session at a time that is convenient for the group; and /or individually if necessary.
Retirement. Federal Regulations require that all employees participate either in Social
Security or (in some cases) some other retirement plan. This policy will now affect City
Council Members. Since the City does not participate in Social Security, and elected officials
are not eligible for the California Public Employees Retirement System (PERS), Council
Members will need to be enrolled in the same retirement program used for employees in the
City's part-time work force. This is an IRC 401(a) defined contribution program that is
administered for the City by the Public Agency Retirement System (PARS), a private sector
entity. Participants are required to contribute 3.75% of their compensation (not including the
cafeteria plan). This amount is deducted each pay period. Employee contributions are pre-
tax. The City matches the 3.75% contribution, so the total deposit at each payroll is 7.5 %.
This program is unlike the IRC 457 Deferred Compensation plan (above) in several ways. It
is mandatory, and everyone must contribute the same percentage. PARS account investments
are not self directed by individual members. When Council Members leave office, they can
either leave the retirement account in place with PARS, withdraw the accumulated funds,
including earnings (and pay the taxes and penalty), or roll the PARS account balance to an
IRA.
Life Insurance. Council Members are eligible for $5,000 Life Insurance coverage. Additional
coverage can be purchased at the option of the individual as a post tax benefit. This
represents no change from current status.
Retiree Medical Pro ram. Council Members who are in office for seven years or longer
continue to be eligible for the City's Retiree Medical Insurance Program. This program
provides up to $400 per month for medical insurance for retirees. Full -time active employees
pay part of the cost of this program on an ongoing basis, and the City also contributes money
on their behalf. For Department Heads, the City Manager, and City Council Members, the
City pays both the City's share and the individual employee's share of this contribution (while
the employee is still actively working). Therefore no deduction for this program will be
shown on Council Member pay stubs.
Annual Compensation Adjustments. Adjustments to Council Members' compensation will
continue to made automatically at the beginning of each fiscal year, based on changes in the
consumer price index. This does not include the Cafeteria Plan allowance, the level of which
is only changed by special action.
A sample pay stub has been prepared to show the impact of typical tax deductions under two
different withholding scenarios. Please don't hesitate to give Dan, Dick, or me a call at 3127
with any questions.
Monthly Stipend
BiWeekly Stipend
Exemptions
Income Exclusion
Income Subject to PIT
Council Member
Single Married
Zero Ex. Two
Mayor
Single Married
Zero Ex. Two
903.00 903.00 1,281.00 1,281.00
416.77 416.77 591.23 591.23
0.00 (223.00) 0.00 (223.00)
(102.00) (248.00) (102.00) (248.00)
314.77 0.00 489.23 120.23
Medicare
1.45%
6.04
6.04
PARS
3.75%
15.63
15.63
Fed PIT
15.00%
47.22
-
State PIT
4.00%
12.59
-
Total Est.
BiWeekly Withholdings
81.48
21.67
Total Est.
Monthly Withholdings
176.54
46.96
8.57
8.57
22.17
22.17
73.38
18.03
19.57
4.81
123.70
30.74
268.01
66.61
EMPLOYEE VS. INDEPENDENT CONTRACTOR (CONTINUED)
Special Rules for Election Workers (Continued)
Year 2000 Developments: In January 2000, the IRS issued Revenue Ruling 2000 -6, clarifying certain
rules regarding election workers. The primary rules contained in this revenue ruling are as follows:
All salaries and wages over $600 in any one year paid to persons employed as election workers
must be reported on Form W -2, as required under IRC Section 6041(a) and Regulation
1.6041- 2(a)(1). This rule applies even if the employee is not subject to any FICA or income tax
withholding.
If an election worker is eligible for social security under a Section 218 Agreement, then social
security withholding is based on salary levels set forth in the Section 218 Agreement, and not
according to the $1,100 threshold.
• If an election worker is subject to any income tax withholding or social security withholding
(regardless of amount), then a Form W -2 must be filed for the employee under IRC Section
6051(a).
Example
Mr. Mills is employed by the City of Metropolitan as an election worker. The City does not have a
Section 218 Agreement in effect for its employees. The City paid Mr. Mills, $200 for the calendar year
2000 for services as an election worker (not subject to FICA or income W withholding). In 2000,
Mr. Mills also worked for the City as a part-time recreational worker, for which he received $300
subject to income tax withholding, but not subject :o FICA.
Under IRC Section 6051(a), the City must report the $300 on Form W -2, as it was subject to
income tax withholding. However, the City is not required to report the $200 for services as an
election worker because:
• The total compensation for the year ($500):s less than the $600 reporting limit, and
• The $200 was not subject to any type of w:thholding.
Are City, Council Members, County Board Members or
District Board Members Employees or Independent Contractors?
This question has been the subject of differing legal opinions. The determination of employee status is
determined based on the facts or circumstances in each case. Important factors to consider are set forth
below:
1. Internal Revenue Code Section 3401(c):
Under IRC Section 3401(c), the term "employee includes an officer, employee or elected official of
the United States, a state, or any political subdivision thereof, or the District of Columbia, or any
agency or instrumentality of any one or more of the foregoing ".
-19-
EMPLOYEE VS. INDEPENDENT CONTRACTOR (CONTINUED)
Are City Council Members, County-Board Members or
District Board Members Employees or Independent Contractors? (Continued)
2. Are Public Officials Paid on a "Fee Basis" or Based on "Salary "?
Internal Revenue Code Section 3401(A), which deals with federal income tax withholding rules, states: ,
"Wages shall mean all remuneration (other than fees paid to public officials) for services performed.
Further, Regulation 31.3401(a) -2(b) discusses payments to "public officials ", and acknowledges that '
such payments can be made on either a "fee" basis, or as "salary". The regulation, in part, reads as
follows:
"Fees paid a public official. (1) Authorized fees paid to public officials such as notaries public,
clerks of courts, sheriffs, etc., for services rendered in the performance of their official duties
are excepted from wages and hence are not subject to withholding. However, salaries paid such
officials by the Government, or by a Government agency or instrumentality, are subject to
withholding."
3. Position of California IRS District Directors:
During 1999 and 2000, the IRS has been sending letters to California governmental agencies setting
forth the IRS's position that government board members should be treated as employees and not
independent contractors. Selected paragraphs from the IRS letter are reproduced below:
"It has been brought to our attention that some government entities have inadvertently treated
elected board members as independent contractors rather than. employees. This letter has been
prepared to help answer any questions that you may have. We would also like to take this
opportunity to provide you with other information items, wl',ch may be of use to you or your
employees.
Normally, individuals performing as a member of a board of directors are not employees of
the company. That is not the case when the individual is elected to that position by the general
public. An elected public official is an employee of the agency to which he or she has been
elected, as stated in Internal Revenue Code Section 3401(c ), and upheld in Revenue Ruling
74 -608. A W -2 should be issued to them. f
FICA and Medicare coverage requirements for the elected members can be determined in one '
of three ways: States and their political subdivisions may extend coverage to the employees
through voluntary agreements with the Social Security Administration (SSA). These
agreements are commonly called Section 218 agreements. Effective July 2, 1991, state and
local government employees who are not covered under a Section 218 agreement or by a
qualified public employer retirement plan are covered by mandatory FICA. State and local
government employees who are not covered for FICA and who were hired after March 31, '
1986 are subject to mandatory coverage of the Medicare only portion of FICA. Simply put,
elected officials m6st either be covered by a qualified employer retirement plan or they must
be covered for PICA. Also, depending upon their "hire" date, they must be covered by
Medicare.
-20-
EMPLOYEE VS INDEPENDENT CONTRACTOR (CONTINUED)
Are City Council Members County Board Members or
District Board Members Employees or Indeiendent Contractors? (Continued)
3. Position of California IRS District Directors (Continued):
Selected paragraphs from IRS letter (Continued):
There has been some confusion regarding whether the officials' payments for services are to
be considered wages or are a fee - for - services. Some individuals have cited, as their argument,
1RC Section 340l(a) which states: "wages means all remuneration (other than fees paid to a
public official) for services performed..." A fee is defined as compensation for a particular
act or service without regard to the amount of time spent in its performance. A fee -based
income is subject to self - employment tax, as is associated with a trade or business.
Revenue Ruling 61 -113 determined that members who are appointed to a county hearing board
pursuant to the laws of the state, who take an oath, hold public hearings, and submit their
decisions to the county are not engaged in a trade or business and do not have net earnings
from self - employment.
IRC Section 1402(a) states that the term 'trade or business' shall not include (1) the
performance of the functions of a public official, other than the functions of a public office of
a State or a political subdivision thereof, with respect to fees received-in any period in which
the functions are performed in a position compensated solely on a fee - basis, and in which such
functions are not covered under Section 218.
Public officials generally to not receive self - employment income. Public officials generally
receive a wage income, but he or she can receive fees 'directly' from the public, and therefore,
be subject to self - employment tax on those fees. Revenue Ruling 74 -608 defines the term
"fee ". When a public official receives his remuneration in the form of fees directly from
members of the public with whom he does business (such as Justices of the Peace, Notaries,
local Registrars), such remuneration is "fees" within the meaning of Section 1402(c )(1) of the
Act.
However, when a public official receives his remuneration or salary from a government fund
and no portion of the monies collected by him/her belongs to or can be retained by him/her as
compensation, the remuneration is not "fees ". Therefore, you should issue the board
members a Form W -2 and withhold FICA and/or Medicare, as explained on the previous
page. For further guidance, please refer to Revenue Rulings 74 -608 and 61 -113. Private Letter
Rulings 9310029, 9310030 and 9340039 also discuss elected officials as employees."
-21-
EMPLOYEE VS. INDEPENDENT CONTRACTOR (CONTINUED)
Are City Council Members, County Board Members or
District Board Members Employees or Independent Contractors? (Continued)
4. Participation In Employee Fringe Benefit Programs:
If a City Council member, County Board member or Special District Board member is allowed to
participate in employee fringe benefit programs, such as health and accident plans, group -term life
insurance plans, cafeteria plans, etc., such participation indicates that these persons should be treated
as employees. (However, as discussed elsewhere in this manual, an "independent contractor" can
participate in a Section 457 Deferred Compensation Plan.)
S. Participation On More Than One Board:
If a City Council member or County Board member also sits on the Board of Directors of a
redevelopment agency, or sits on the Board of Directors of a related nonprofit corporation, and if the
City Council member or County Board member is treated as an "employee ", this strongly suggests that
the Council or Board member should be treated as an "employee" by the redevelopment agency or
nonprofit corporation.
1996 Tax Court Memorandum Decision Regarding
Off -Duty Police Work
In November, 1996, the Tax Court issued a decision in the case of Jeffrey S. Kaiser vs. Commissioner
(1996 TC Memo 96,526). The case involved a Texas police officer who was liable for self - employment
tax on earnings from his off -duty job as a security guard. The court held that the officer was acting as an
independent contractor, not a Police Department employee, even though he wore a police uniform and
carried police equipment. Texas law did not prohibit the officer from providing 3rd - parties with
police -type services as an independent contractor, and the requirement that the officer change to on -duty
status when responding to crime was not relevant. Also, the Department's requirement that off -duty
employment be approved by the Department only showed incidental control, particularly where the officer
was not obligated to accept such employment.
Planning Point: As a practical matter, whether a police officer is considered an employee or an
independent contractor for off -duty work will depend heavily on who pays the officer's compensation. For
example, in one California City, police officers were used to provide additional security at a movie
production site. The City made payments to the officers. They were treated as "employees ". However,
in another situation, City police officers were used to provide additional security at a Regional Mall. Under
an agreement with the City, the Regional Mall paid the officers' compensation. In this instance, the police
officers were considered "independent contractors ". (A shooting took place at the mall. The City was
sued. The court held that the officers were not acting as employees of the City, and thus, the City could
not be held liable.)
-22-