Q The IRS has notified our county that we must begin treating constables as employees, rather than self-employed individuals, for purposes of income tax and Social Security. Does this change convert the constable’s fee income to a “direct payment” as contemplated by Section 25-11-106(1) (b) (ii) (thus requiring the county to pay PERS employer contributions on fee income)?

A No. The fact that the constables’ fee income is now subject to income tax and Social Security withholding does not alter the fact that Section 25-11-106(1)(b)(ii) and Section 25-11-123(f)(3)(i) require constables to pay both the employee and employer PERS contribution on their net income, unless the board has elected to pay the employer portion as allowed under Section 25-11-106(1)(b)(iii). Likewise, using the county’s computerized payroll system to facilitate the required withholding does not convert this fee income into “county payroll income,” as the fee income is still being paid through fees assessed to the public instead of directly from the county treasury. This fee income must still be paid through the claims docket, pursuant to Section 19-13-27, even if a Form W-2 is issued, as it does not consist of a salary or hourly wage that has been previously approved by the board and entered on the minutes. (Attorney General’s Opinion to Espy, September 26, 2014)