AGO 2006-03.

• Case Date: July 12, 2006
• Court: Indiana

Indiana Attorney General Opinions 2006. AGO 2006-03. STATE OF INDIANA OFFICE OF THE ATTORNEY GENERAL INDIANA GOVERNMENT CENTER SOUTH, FIFTH FLOOR 402 WEST WASHINGTON STREET INDIANAPOLIS, IN 46204-2770 STEVE CARTER TELEPHONE (317) 232-6201 ATTORNEY GENERAL OFFICIAL OPINION 2006-3July 12, 2006Mr. David J. Adams Executive Director Public Employees' Retirement Fund143 West Market Street Indianapolis, Indiana 46204 Re: Legal Status of the Consolidated City of IndianapolisDear Director Adams: As the State Social Security Administrator, you recently requested an analysis of several questions posed to you by the Social Security Administration ("SSA"). The following analysis is provided in answer to those fact specific questions as presented by SSA. Please be advised that the legal opinion offered herein may not be relevant when evaluating the legal status of the Consolidated City of Indianapolis and Marion County under the Uni-Gov Act in other situations not pertaining to matters involving the Social Security Act. Background and Ouestions Presented When the Social Security Act was initially enacted in 1935, state and local government employees were excluded from coverage. Congress questioned the constitutionality of a general levy of employer tax on states and their localities. Soc. Sec. Admin., State and Local Coverage Handbook ("SLCH") ch. SL20001.201;1 Bowen v. Public Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 45 n.4 (1986). Later, Section 218 of the Social Security Act was added in 1950 in order to make Social Security coverage available to state and local government workers. Id.; 42 U.S.C. 418. Originally, under Section 218, states were allowed to enter into voluntary agreements ("Section 218 Agreements") with the federal government only if their employees were not covered by a public retirement system offered by the governmental entity. SLCH at SL20001.201. In 1954, the Social Security Act was expanded to allow coverage for state and local government employees who were members of a public retirement system if social security coverage was authorized by the state and approved through a voluntary referendum of the retirement system members. 42 U.S.C 418(d)(3); 20 C.F.R. 404.1206. All 50 states have entered into irrevocable Section 218 Agreements with SSA. SLCH at SL20001.201. In September of 1951, the Indiana State Employees' Retirement Fund (PERF), under legislative direction as the State's Social Security Administrator, entered into a Section 218 Agreement with SSA. 2 In December of 1951, SSA approved a modification to that agreement which provided for social security coverage of all employees of Marion County for all positions not covered by an existing retirement system. Ind. State Soc. Sec. Agreement, Mod. No. 2. Because no retirement system covered Marion County employees, the entire group of employees was provided with social security coverage, including sheriff department employees. In 1963, when Marion County Sheriff deputies began being covered by an additional retirement system (the Marion County Law Enforcement Personnel Retirement Plan), the coverage had no impact on the continuation of the deputies' coverage under the Social Security Act. 1963 Op. Ind. Atty. Gen. 37, 43; Palatine v. Califano, 1979 WL 6846 (N. D. Ill.). A few years later, in 1955, SSA approved another modification to the Section 218 Agreement allowing for social security coverage of employees of the "Indianapolis Civil City," even though some city employees were already participants of the Indiana Public Employees Retirement Fund (PERF).3 Ind. State Soc. Sec. Agreement Mod. No. 55. The modification did not include Social Security coverage for Indianapolis city police officers who were members of the police pension fund established in 19534 and who were not members of PERF. Additionally, city police officers who later became members of the 19775 Police Officers' and Firefighters' Pension and Disability Fund were not covered by Social Security. When political entities change status, SSA requests that the State Social Security Administrator make SSA aware of any change. SLCH at SL 40001.475. SSA differentiates between a simple name change and a more comprehensive change reflecting the creation of a new legal entity. SSA advises State Social Security Administrators:

If only a name change is involved and the entity's composition remains the same

...