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HomeMy WebLinkAbout07.d.2) (Handout) Trucker Hess memoLee A. "Trucker R. Bradford Hus; Charles A. Siorkc Benjamin F. Spater Deborah ,ludith Wiener JUHC BUrbank Ronald .I. Triche Mary E. Powell Robert F. Schwartz Tiffany N. Snito% Kevin E. Nolt Clarissa A. Kam, Charles M, Dyke MEMORANDUM 01,coun «l Barham 13. Creed Special Counsel Barbara P. Pletcher Richard A. Gilbert PRIVILEGED AND CONFIDENTIAL TO: Debbie Ratcliff FROM: Charles M. Dyke DATE: May 3, 2011 RE: Limitations on Benefits Provided to Board of Directors At your request, we have prepared this memo addressing whether the District's Board of Directors, which consists of five elected members, may lawfully participate in the same employee benefit programs in which the District's regular employees participate. As discussed further below, benefits provided to a local agency's regular employees also may be extended to members of the agency's board of directors or other governing body, subject to certain statutory limitations. I. Facts The District maintains the following employee benefit plans for its regular employees: • Medical plan • Dental plan • Life insurance plan • Section 125 cafeteria plan • Section 401(a) defined contribution plan (employer contributions) • Section 457(b) plan (optional) • Pension plan • Long term disability plan • Employee assistance plan The District's Board members presently receive District -paid medical, dental and life insurance benefits, and voluntarily contribute 7.5% of their District compensation to the District's Internal #1169461 100 Montgomery Street, 23rd Floor, San Francisco, California 94104 -4355 Tel (415) 788 -3111 + Fax (415) 421 -2017 * www.truckerhuss.com (f�ar1do�u.� Elizabeth Loh TRUCKER ♦ HUSS `� J Z Matthew l_. Gt LMOX Michelle. i . Schuller a A PROFESSIONAL CORPORATION � Virginia H. Perkins Jenniler Duck Brooks ERISA AND EMPLOYEE BENEFITS ATTORNEYS J. Nlarc Fosse Jennifer B. Chun Brian C. Gilmore Robert K. Gower RenJantin 1'. Quest Nflkaela C. Habib MEMORANDUM 01,coun «l Barham 13. Creed Special Counsel Barbara P. Pletcher Richard A. Gilbert PRIVILEGED AND CONFIDENTIAL TO: Debbie Ratcliff FROM: Charles M. Dyke DATE: May 3, 2011 RE: Limitations on Benefits Provided to Board of Directors At your request, we have prepared this memo addressing whether the District's Board of Directors, which consists of five elected members, may lawfully participate in the same employee benefit programs in which the District's regular employees participate. As discussed further below, benefits provided to a local agency's regular employees also may be extended to members of the agency's board of directors or other governing body, subject to certain statutory limitations. I. Facts The District maintains the following employee benefit plans for its regular employees: • Medical plan • Dental plan • Life insurance plan • Section 125 cafeteria plan • Section 401(a) defined contribution plan (employer contributions) • Section 457(b) plan (optional) • Pension plan • Long term disability plan • Employee assistance plan The District's Board members presently receive District -paid medical, dental and life insurance benefits, and voluntarily contribute 7.5% of their District compensation to the District's Internal #1169461 100 Montgomery Street, 23rd Floor, San Francisco, California 94104 -4355 Tel (415) 788 -3111 + Fax (415) 421 -2017 * www.truckerhuss.com Revenue Code ( "Code ") section 457(b) Plan. The only contributions to the District's 401(a) Plan are employer contributions, paid by the District in lieu of social security. Employees are permitted, but not required, to make salary deferral contributions to the 457(b) plan. Finally, employees other than Board members may elect to receive cash payments in lieu of health coverage. II. Analysis In three separate Articles in Title 5 of the California Government Code, local agencies are authorized to provide their "officers and employees" with (i) health and welfare benefits, (ii) a deferred compensation plan, and (iii) pension benefits. In 1990, the District obtained a Determination Letter from the IRS that concluded that the District's Board members are employees of the District for purposes of withholding federal income, FICA and FUTA taxes under Code section 3121 (copy attached). The IRS reached its conclusion based upon a 20- factor test it uses to determine whether individuals are common law employees of their employer. We have no reason to doubt the correctness of the IRS's determination that the District's Board members are common law employees of the District. Because we believe the Board members are employees of the District, we believe they are permitted to participate in the District's employee benefit plans to the same extent as other employees, as described further below. Ordinarily, our analysis would end here. But in this case, we write further to address a structural oddity in the Government Code. The oddity is that the sections of the Government Code that authorize health and welfare benefits (the Article 1 sections) contain a definition of "employees" that specifically identifies board members of local agencies as included within the meaning of the word. By contrast, the Government Code sections authorizing deferred compensation benefits (Article 1.1) and pension benefits (Article 1.5) for employees do not contain any definition of "employees." One might reason from this structure that the inclusion in Article 1 of (i) a definition of employee that (ii) is written to expressly include board members, coupled with the omission of any such definition in Articles 1.1 and 1.5, indicates an intent by the state legislature to exclude board members from participating in local agency - sponsored deferred compensation and pension plans. We do not believe, however, that this is what was intended, because, among other things, language within Article 1.5 expressly contemplates receipt by board members of pension benefits even though they are not expressly identified the way they are in Article 1. Thus we believe the better reading is that board members are assumed to be employees in Articles 1.1 and 1.5 by application of common law principles. a. Health and Welfare Benefits California Government Code section 53201(a), which is codified in Article 1, Chapter 2, Part 1, Division 2, Title 5 of the Government Code, provides: The legislative body of a local agency, subject to conditions as may be established by it, may provide for any health and welfare benefits for the benefit of its officers, employees, retired employees, and retired members of the legislative body, as provided in subdivision (b), who elect to accept the benefits and who authorize the local agency to _2_ #1169461 deduct the premiums, dues, or other charges from the compensation, to the extent that the charges are not covered by payments from funds under the jurisdiction of the local agency as permitted by Section 53205. Government Code section 53200 sets forth pertinent definitions that apply to sections in Article 1. Under these definitions: • "`Legislative body' means ... the governing board, by whatever name called, of a ... district ... or other public agency of the state." • "`Employees' or `officers and employees' mean all employees and officers, including members of the legislative body, who are eligible under the terms of any plan of health and welfare benefits adopted by a local agency pursuant to this article." • "`Local agency' means a ... district ... or other public agency of the state." • "`Health and welfare benefit' means any one or more of the following: hospital, medical, surgical, disability, legal expense or related benefits including, but not limited to, medical, dental, life, legal expense, and income protection insurance or benefits, whether provided on an insurance or a service basis, and includes group life insurance ...." Thus, under these sections, the District may provide its "employees," a term that expressly includes board members, with "health and welfare benefits." Section 53208, also found in Article 1, sets forth special rules governing the benefits that can be provided to members of a legislative body (i.e., Board members), and provides: Notwithstanding any statutory limitation upon compensation or statutory restriction relating to interest in contracts entered into by any local agency, any member of a legislative body may participate in any plan of health and welfare benefits permitted by this article. And section 53208.5 provides a cap on the value of health and welfare benefits provided to Board members: (b) Notwithstanding any other provision of law, the health and welfare benefits of any member of a legislative body ... of any ... special district ... or any other political subdivision of the state shall be no greater than that received by nonsafety employees of that public agency.... (c) Notwithstanding any other provision of law, members of the legislative body of a ... special district ... or any other political subdivision of the state shall not be eligible to accrue multiple health and welfare benefits greater than the most generous schedule of benefits being received by any category of nonsafety employees from two or more public -3- #116946] agencies for concurrent service except in the case of a member who serves as a regular full -time employee in a separate public agency.I Thus, the District appears to comply with the foregoing Article 1 rules in providing medical, dental and life insurance benefits to Board members, assuming that such benefits are no greater than those provided to other employees. It additionally appears that the District may permit Board members to participate in the District's section 125 cafeteria plan, long -term disability plan and employee assistance plan, as long as the same limitations are observed. If the District were to implement a Health Savings Account plan (in tandem with a high- deductible health plan), the District could permit Board members to participate in that plan to the same extent as other employees. b. Deferred Compensation Plans In Article 1. 1, section 53213 of the Government Code authorizes the District to maintain a deferred compensation plan for the benefit of its "officers and employees." It states: Each local agency may establish for its officers and employees a deferred compensation plan. Participation in such plan shall be by written agreement between such officers and employees and the governing body of the local agency which shall provide for deferral of a portion of such officers' or employees' wages. Officers and employees of any local agency having a deferred compensation plan may authorize deductions to be made from their wages for the purpose of participating in such deferred compensation plan. Unlike Article 1, there is no separate definition of "employees" or "officers and employees" in Article 1. 1, nor is there any separate provision expressly authorizing members of a legislative body (i.e., Board members) to participate in a deferred compensation plan. Nonetheless, we believe that Board members may participate because, as explained above, they appear to be common law employees of the District, as determined by the IRS. We believe the absence of any definition of "employees" in Article 1. 1, particularly the absence of a definition that expressly specifies members of a legislative body as being included within the term "employees," should not be taken to mean that Board members are precluded from participating in the District's deferred compensation plan. First, the definition of "employees" and "officers and employees" in Article 1 does not include all employees and officers but only those employees and officers "who are eligible under the terms of any plan of health and welfare benefits adopted by a local agency." Thus, this definition appears to have a limiting purpose. Second, the definition does not purport to declare by fiat that members of a legislative body shall be treated as if they were employees; rather, it assumes they are in fact employees, as indicated by the use of the word "including." Third, as discussed below, Article 1.5 likewise contains no definition of "employees" or "officers and employees" but expressly assumes that legislative body members will be receiving pension benefits. Fourth, there is nothing in Article 1. l that prohibits Board members (or any other class of employee) from participating in a local agency's deferred compensation plan. 1 We assume for purposes of this memorandum that the District is a "special district" or a "political subdivision" of the State of California. -4- #1169461 C. Section 401(x) PIans In Article 1.5, section 53216 of the Government Code authorizes the District to establish a pension trust for the benefit of its officers and employees. It states: The legislative body of a local agency may establish a pension trust funded by individual life insurance contracts, individual annuities, group policies of life insurance, or group annuities, or any one or combination of them, or by any other investment authorized by this article for the benefit of its officers and employees. As discussed above, Board members appear to be the common law employees of the District (as determined by the IRS) and thus, under section 53216, within the class of persons for whom the District's pension plan can be maintained. Moreover, other statutory sections in Article 1.5 expressly contemplate the participation of legislative body members in such pension plans. In that regard, Government Code section 53217.5 prohibits local agencies from providing to elected board members pension benefits which are more generous than those provided to other employees, and provides: (b) Notwithstanding any other provision of law, the pension trust benefits of any member of a legislative body of any ... special district ... or any other political subdivision of the state shall be no greater than that received by nonsafety employees of that public agency. In the case of agencies with different benefit structures, the benefits of members of the legislative body shall not be greater than the most generous schedule of benefits being received by any category of nonsafety employees. (c) Notwithstanding any other provision of law, members of the legislative body of a ... special district ... or any other political subdivision of the state shall not be eligible to accrue multiple pension trust benefits greater than the most generous schedule of benefits being received by any category of nonsafety employees from two or more public agencies for concurrent service except in the case of a member who serves as a regular full -time employee in a separate public agency. For the reasons explained in the preceding section of this memo, we believe the absence of any definition of "employees" in Article 1.5, particularly the absence of a definition that expressly specifies members of a legislative body as being included within the term "employees," should not be taken to mean that Board members are precluded from participating in the District's pension plan. Of course any participation by Board members in this plan is limited to Board member contributions from their District -paid compensation. Because of the statutory limitations on the amount of compensation that the District can pay to its Board members, the District itself could not contribute to this plan on behalf of Board members. _5 #1169461 f Central Contra Costa Sanitary District March 12, 1990 TO: HONORABLE ME F THE BOARD OF DIRECTORS VIA: ROGER J. DOL PAUL MORSEN FROM: WALTER N. FUNASAKI� SUBJECT: INTERNAL REVENUE SERVICE DETERMINATION ON BOARD MENBER' S EMPLOYEE STATUS Attached is a copy of the Internal Revenue Service's determination *letter f on the issue as to whether the District's Board Members are employees or independent contractors for purposes of federal income tax and medicare tax withholding; the determination of the IRS is that Board Members are employees for tax withholding purposes. This determination affirms the change made by the District in reporting 1989 Di rector's compensation on Form W-2, Wage and Tax Statement, and not Form 10990, Miscellaneous Income. The determination letter is confusing and disjointed, as it does not address the unique character of an elected board of a publ is agen seems to be a general form letter used when the determination is that an employer-employee relationship exists. Please contact me if you wish to discuss this matter or require additional information. WNF /hab Attachment cc: K. Al m R. Tomoda SSS /W. Funasaki 11 /M-BOD IRS INTERNAL REVENIOSERVICE District Director CENTRAL CONTRA COSTA SANITARcY DISTRICT Attn: Mr. Walter N. Funasal -y, Finance Officer 5019 Imhoff Place Mariinez, CA 94553 -4-92 Dear Sirs: depenent of the Treasury P.O. Box 2900 Sacramento, CA 95812 -2900 Person to Contact: Carlos Zepeda Telephone Number: 916- 978 -6404 Refer Reply to: SA 1106CZ File Number: 9X Gate: 2 ! FEB 1= This is in response tc Form SS -8 which was submitted requesting a determination of employment tax status for Federal Employment Tax purposes between Central Contra Costa Sanitary District, hereinafter referred to as C Company, and John B. Clausen, hereinafter referred to as worker. Information submitted indicates that C Company engaged the worker to perform services as a member of the board of directors. The firm is a governmental unit covered by a Section 218 agreement with the Social Security Administration. The worker establishes policy and supervises its implementation under statutes of the State of California as a member of the Board of Directors. Eventhough no initial training was necessary the firm provided continual instructions and retained the right of direction and control over the worker. The services of the worker were performed as requested by the firm and were integrated into the business of the firm. The worker was required to submit oral and written reports. The worker was required to personally render the services and could not provide a substitute. A continuing relationship existed between the firm and the worker. The worker was not engaged by many different firms or persons and did not offer his services to the general public. The services were performed on the firm's premises and under the firm's business name. The worker performed the services during regular working hours. The necessary equipment, materials and supplies were provided by the firm. The worker had no significant investment in facilities to perform the services and had no opportunity for profit or loss, other than the remuneration for services received at specific intervals based on a fee basis. Either party could terminate their working relationship at any time with proper notice and without any contractual liability. Section 3121(d)(2) of the Internal Revenue Code provides that the term "employee" means any individual who, under the usual common law rules applicable in determining the employer - employee relationship, has the status of an employee. The question of whether an individual is an employee under the usual common law rules or an independent contractor is one of fact to be determined upon consideration of the facts and the application of the law and regulations in a particular case. Guides for determining the existence of that status are found in three substantially similar sections of the Employment Tax Regulatlon5; namely sections 31.3121(d) -1, 31.3306(i) -1 and 31.3401(c)--1, relating to the Federal Insurance Contributions Act (FICA), the Federal Unemployment Tax Act. (FUTA), and federal income tax withholding, respectively. _ 2 _ Central Contra Costa Sanitary District RE: Clausen, J. 8. Section 3121(d) -i(c) of the Federal Regulations provides, in part, with respect to the relationship of employer - employee, that every individual is an employee if under the usual common law rules, the relationship between the worker and the person for whom the worker performs service is the legal relationship of employer - employee. Generally, such relationship exists when the person for whom the services are performed exercises or has the right to exercise direction and Control over the individual who performs the services. In this connection, it is not necessary that the employer actually direct or control the individual, it is sufficient that the employer has the right to do so. Section 1402(c)(1) of the Code provides that the term "trade or business ", when used with reference to self - employed income or net earnings from self - employment, shal not include the performance of functions of a public oofice, other than the functions of a pulbic office 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 an agreement pursuant to section 218 of the Social Security fact. Based upon the information submitted and the application of the twenty common law factors, it is determined that the services performed by the worker are sufficiently subject to direction and control by the C Company to establish an employer- employee relationship. A ord'n it held that the worker is an employee of_the firm for Durpo5e5 of the Federal Inurance Contributions Act (FICA). the Federal Uneriplovment Tax Act (FUTA). and for CoIlectig n of Income Tax at the Source of Wangs (federal income tax _ withholding). This determination is applicable to any individuals engaged by the firm under similar circumstances. Remuneration paid to individuals classified as employees constitute wages subject to Federal income tax withholding, FICA, and FUTA as provided under Sections 3401, 3121(d), and 330E of the Internal Revenue Code of 1986, respectively. Please note there are special rules for employment taxes on government employees. Section 3401(a) of the Code does not provide any exceptions from withholding on government employees. Section 3121(b) of the Cade only provides for an exclusion from taxes under the Federal Insurance Contributions Act (FICA) for state and local government employees who began performing services prior to April 1, 1986. For those government employees who began performing services for the state or local government on or after April 1, 1986, only the hospital insurance (medicare) portion of the FICA will apply. Section 3306(c) of the Code does provide an exclusion from taxes under the Federal Unemployment Tex Act (FUTA) for government employees. Sincerely, Ago Raymond A. Spillman Attachment - Reclassification Procedures