SL 30001.345 Police Officers and Firefighters
A. DEFINITION OF POLICE OFFICER OR FIREFIGHTER POSITION
A police officer or firefighter position for Section 218 coverage purposes is any position classified as such in State statutes and court decisions. Generally, these positions exist in the regularly organized police and fire departments of incorporated municipalities, towns, and cities. In most States, an employee in a police position is a member of a police force which is an organized civil force for maintaining order, preventing and detecting crimes, and enforcing laws. The terms police officer and firefighter do not include services in positions which, although connected with police officer and firefighter functions, are not police or firefighter positions.
Notwithstanding the general rules stated above, State statutes and court decisions are not controlling of whether a position meets the Social Security definition of “police officer.” To determine whether a position meets the Social Security definition of “police officer,” it may be necessary to review police force positions on an individual case-by-case basis. For Section 218 coverage purposes, one must consider the extent that the duties of the position correspond with the above-stated characteristics of the police force. If a preponderance of the position’s duties falls within one or more of the three characteristics of maintaining order, preventing and detecting crime, and enforcing laws, Social Security would consider that position to be one that would constitute a “police officer” position.
In some jurisdictions, positions such as game warden, forester, forest patroller, crime investigator supervisor, police department stenographer, sheriff, and highway patroller have been held not to be "police" positions.
NOTE: Police officers and firefighters are not considered emergency workers under the Social Security and Medicare exception for emergency workers defined in Internal Revenue Code Section 3121(b)(7)(F)(iii). The emergency worker exclusion applies only to services of an employee was hired because of an unforeseen emergency to do work in connection with that emergency on a temporary basis (e.g., individual hired to battle a major forest fire or to provide emergency assistance in other similar disasters. Also, volunteer firefighters who are on call and work regularly but intermittently do not qualify for the emergency exclusion.
B. PROVIDING COVERAGE FOR POLICE OFFICERS AND FIREFIGHTERS
There are two ways to cover services performed in police and firefighter positions:
Such system may cover positions of police officers only, or firefighters only, or both, and other positions.
NOTE: Social Security regulations 20 CFR 404.1206 provides that if a State law requires a State or political entity to have a retirement system, it is considered established even though no action has been taken to establish the system. Therefore, regardless of whether an entity actually established a retirement system in accordance with State law, the police officer and firefighter positions are considered covered by a retirement system.
C. COVERAGE OF POLICE OFFICER AND FIREFIGHTER POSITIONS NOT UNDER A RETIREMENT SYSTEM
If police officer and/or firefighter positions were not covered by a retirement system at the time an entity obtained Social Security coverage under the State's Section 218 Agreement for all positions not covered by a retirement system, the police officer and firefighter positions are covered. Coverage obtained under a Section 218 Agreement continues even if these positions later come under a retirement system. However, see SL 30001.345D.
D. POLICE OFFICER OR FIREFIGHTER POSITIONS REMOVED FROM A RETIREMENT SYSTEM
1. Police Officers
Prior to Public Law 103-296, in the States not listed below in section E., police officer positions could be removed from a retirement system at any time before their absolute coverage group was included in the agreement and covered with the absolute coverage group. In the States listed below, police officer positions under a retirement system could be covered under the State's Section 218 Agreement only through the referendum procedures, including coverage for Medicare.
After the listed States provided coverage for police officer positions under a retirement system through the referendum procedure, they could no longer dissolve a police retirement system or remove police positions from a retirement system and provide coverage for police as part of the absolute coverage group.
Beginning January 2, 1968, all States may cover firefighter positions which are under a retirement system through referendum procedures and no State may dissolve a retirement system or remove firefighter positions from a retirement system and provide coverage for firefighters as part of the absolute coverage group.
Prior to January 2, 1968, States not listed in section E. below (and prior to the amendment dates shown for the States), firefighter positions could be removed from coverage under a retirement system at any time before their absolute coverage group was included in the agreement and covered with the absolute coverage group.
Employees in police officer or firefighter positions who are ineligibles of the retirement system cannot be covered as a part of, or as an addition to, the absolute coverage group. However, see SL 30001.370 for a special Federal legislation authorizing Oklahoma to cover certain ineligibles in police positions.
E. COVERAGE OF POLICE OFFICER AND FIREFIGHTER POSITIONS UNDER A RETIREMENT SYSTEM
1. Current Law
Effective for modifications filed after August 15, 1994, all States may provide coverage for police officer and firefighter positions under a retirement system by use of the majority vote referendum procedure. The retirement system coverage group consists of all current and future employees in positions under the retirement system in which the referendum was held, including ineligibles.
In addition, those States and all interstate instrumentalities authorized under Section 218(d)(6)(C) of the Act, may also use the divided vote procedure. If the divided vote procedure is used, the retirement system coverage group consists of all members who chose coverage and future members except that "ineligibles" may not be covered as a part of such a group.
Congressional authorization alone is not sufficient to provide Social Security coverage to police officer and firefighter positions under a retirement system. As with other retirement system—covered positions, there must also be authority to provide coverage under State law and the Federal-State Section 218 Agreement.
The State must first review state statutes and its enabling act to see if existing language prohibits extending Social Security coverage under the Section 218 Agreement to police officer and firefighter positions under a retirement system. If this language exists, the State must remove it, which usually requires action by the state legislature. Once the legislature passes corrective legislation, or if there is no prohibitive language to correct, then the State must modify the Section 218 Agreement to permit coverage of police officer and firefighter positions already covered by a retirement system, see template in SL 40001.490, Exhibit 30. Only then, can the State begin holding referendums and extending coverage to those positions.
Before holding the referendum, the state must decide what the retirement system will be for referendum and coverage purposes. In addition to the choices of what shall constitute a retirement system under the majority vote and divided vote procedures, the State has additional choices for covering police officers and firefighters. It may deem:
the police positions only to be the retirement system;
the firefighter positions only to be the retirement system; or
the positions of police officers and firefighters to be the retirement system.
2. Coverage Rules Prior to Public Law 103-296 (Named States)
Prior to August 16, 1994, only the 23 States listed in Section 218(l) of the Act were authorized to provide coverage for police officer and firefighter positions under a retirement system. The following States were authorized as of the date shown:
California, Florida, Georgia, Hawaii, New York, North Dakota, Tennessee, Texas, Vermont, Washington and all interstate instrumentalities could also use the divided vote retirement system procedures.
3. Firefighter Positions Under a Retirement System – All States Prior to 1994
Beginning January 2, 1968, States not listed in 2. above were authorized to extend coverage to employees in firefighter positions under a retirement system provided the Governor (or a State official designated by the Governor) certified to SSA that extending Social Security coverage would improve the overall benefit protection of these employees. The firefighter positions had to be treated as a separate retirement system for purposes of the referendum and coverage.
A majority vote referendum had to be held. The divided vote referendum procedure could not be used. The modification had to be accompanied by a certification of the referendum results with the certification of the Governor (or delegate) that this action would improve the overall benefit protection of the group. This provision was obviated by Public Law 103-296, which permits all States to cover firefighter positions under a retirement system under the same conditions as police positions