2016 North Dakota Century Code Title 52 Social Security Chapter 52-10 Public Employees Under Federal Social Security
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CHAPTER 52-10
PUBLIC EMPLOYEES UNDER FEDERAL SOCIAL SECURITY
52-10-01. Declaration of policy.
In order to extend to employees of the state and political subdivisions within the state, and
to the dependents and survivors of such employees, the basic protection accorded to others by
the old-age and survivor insurance system embodied in the Social Security Act [42 U.S.C. 301
et seq.], it is hereby declared the policy of the legislative assembly, subject to the limitations of
this chapter, that such steps be taken as to provide such protection to employees of the state
and political subdivisions within the state on as broad a basis as is permitted under the Social
Security Act [42 U.S.C. 301 et seq.]. It is the policy also of the legislative assembly that the
protection afforded employees in positions covered by a retirement system on the date an
agreement under this chapter is made applicable to service performed in such positions, or
receiving periodic benefits under such retirement system at such time, will not be impaired as a
result of making the agreement so applicable or as a result of legislative enactment in
anticipation thereof.
52-10-02. Definitions.
For the purposes of this chapter:
1. "Employee" includes an officer of a state or political subdivision as well as all persons
employed in and by regulatory boards, commissions, or councils recognized and
established by the statutes of the state of North Dakota, except part-time elected
persons or persons hired on a fee basis, if excluded by the federal-state agreement.
2. "Employer" means the state of North Dakota, and all its political subdivisions, and all of
their departments and instrumentalities.
3. "Employment" means any service performed by an employee in the employ of the
state, or any political subdivision thereof for such employer, except:
a. Service which in the absence of an agreement entered into under this chapter
would constitute "employment" as defined in the Social Security Act; or
b. Service which under the Social Security Act may not be included in an agreement
between the state and the secretary of health and human services.
Service which under the Social Security Act may be included in an agreement only
upon certification by the governor in accordance with section 218(d)(3) of that chapter
[42 U.S.C. 418] must be included in the term "employment" if and when the governor
issues, with respect to such service, a certificate to the secretary of health and human
services pursuant to subsection 2 of section 52-10-07.
4. "Federal Insurance Contributions Act" means subchapters A and B of chapter 21 of the
federal Internal Revenue Code of 1954 [26 U.S.C. 3101 et seq.], as such codes have
been or may be from time to time amended; and the term "employees tax" means the
tax imposed by section 3101 of the Internal Revenue Code of 1954 [26 U.S.C. 3101].
5. "Political subdivision" includes an instrumentality of a state, of one or more of its
political subdivisions, or of a state and one or more of its political subdivisions, but only
if the instrumentality is a juristic entity which is legally separate and distinct from the
state or subdivision and only if its employees are not by virtue of their relation to the
juristic entity employees of the state or subdivisions.
6. "Secretary of health and human services" includes any individual to whom the
secretary of health and human services has delegated any of the secretary's functions
under the Social Security Act with respect to coverage under such Act of employees of
states and their political subdivisions.
7. "Social Security Act" means the Act of the Congress approved August 14, 1935,
chapter 531 [49 Stat. 620; 42 U.S.C. 301 et seq.], officially cited as the "Social Security
Act", including regulations and requirements pursuant thereto, as the Act has been and
may from time to time be amended.
8. "State agency" means the job insurance division of job service North Dakota.
9. "Wages" means all remuneration for employment as defined herein, including the cash
value of all remuneration paid in any medium other than cash, except that the term
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does not include that part of such remuneration which, even if it were for "employment"
within the meaning of the Federal Insurance Contributions Act, would not constitute
"wages" within the meaning of that Act.
52-10-03. Federal-state agreement - Interstate instrumentalities.
1. The state agency, with the approval of the governor, is hereby authorized to enter on
behalf of the state into an agreement with the secretary of health and human services
consistent with the terms and provisions of this chapter, for the purpose of extending
the benefits of the federal old-age and survivors' insurance system to employees of the
state or any political subdivision with respect to services specified in such agreement
which constitute "employment" as defined in section 52-10-02. The agreement may
contain such provisions relating to coverage, benefits, contributions, effective date,
modification, and termination of the agreement, administration, and other appropriate
provisions as the state agency and the secretary of health and human services shall
agree upon, but, except as may be otherwise required by or under the Social Security
Act as to the services to be covered, such agreement shall provide in effect that:
a. Benefits will be provided for employees whose services are covered by the
agreement, and their dependents and survivors, on the same basis as though
such services constituted employment within the meaning of title II of the Social
Security Act [42 U.S.C. 401 et seq.].
b. The state will pay to the secretary of the treasury, at such time or times as may
be prescribed under the Social Security Act, contributions with respect to wages,
as defined in section 52-10-02, equal to the sum of the taxes which would be
imposed by the Federal Insurance Contributions Act if the services covered by
the agreement constituted employment within the meaning of that Act.
c. The agreement shall be effective with respect to services in employment covered
by the agreement performed after a date specified therein but in no event may it
be effective with respect to any such services performed prior to the last day of
the sixth calendar year preceding the year in which the agreement is entered into
or in which the modification of the agreement making it applicable to such
services, is entered into, except that an agreement or modification entered into
after December 31, 1955, and prior to January 1, 1960, shall be effective with
respect to services performed after December 31, 1955; or after a later date
specified in such modification.
d. All services, which constitute employment as defined in section 52-10-02 and are
performed in the employ of the state by employees of the state, shall be covered
by the agreement; all services which constitute employment as defined in section
52-10-02 and are performed in the employ of any municipality except elected
officials, shall be covered by the agreement, notwithstanding the provisions of
section 52-10-05, which provides for plans for coverage of employees.
e. All services, which constitute employment as defined in section 52-10-02, are
performed in the employ of a political subdivision of the state, and are covered by
a plan which is in conformity with the terms of the agreement and has been
approved by the state agency under section 52-10-05, shall be covered by the
agreement.
f. The agreement shall include all services described in either subdivision d or e
and performed by individuals to whom section 218(c)(3)(C) of the Social Security
Act [42 U.S.C. 418] is applicable, and shall provide that the service of any such
individual shall continue to be covered by the agreement in case the individual
thereafter becomes eligible to be a member of the retirement system.
g. The agreement shall include all services described in either subdivision d or e
and performed by individuals in positions covered by a retirement system with
respect to which the governor has issued a certificate to the secretary of health
and human services pursuant to subsection 2 of section 52-10-07.
2. Any instrumentality jointly created by this state and any other state or states is hereby
authorized, upon the granting of like authority by such other state or states:
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a.
To enter into an agreement with the secretary of health and human services by
which the benefits of the federal old-age and survivors' insurance system shall be
extended to employees of such instrumentality;
b. To require its employees to pay, and for that purpose to deduct from their wages,
contributions equal to the amounts which they would be required to pay under
subsection 1 of section 52-10-04 if they were covered by an agreement made
pursuant to subsection 1; and
c. To make payments to the secretary of the treasury in accordance with such
agreement, including payments from its own funds, and otherwise to comply with
such agreements.
Such agreement, shall, to the extent practicable, be consistent with the terms and
provisions of subsection 1 and other provisions of this chapter.
52-10-03.1. Modification of federal-state agreement to exclude certain students.
The state agency, with the approval of the governor, is hereby authorized to modify at any
time prior to January 1, 1974, the agreement of December 5, 1955, between the state and the
secretary of health, education, and welfare, whereby under section 218 [42 U.S.C. 418] the
insurance system established by the Social Security Act was extended to services performed by
individuals as employees of the state or any political subdivision thereof, to effect the exclusion
of service performed in the employ of a school, college, or university if such service is
performed by a student who is enrolled and is regularly attending classes at such school,
college, or university.
52-10-03.2. Authority of executive director - Social security coverage for national
guard employees.
The executive director of job service North Dakota may enter into an agreement with the
federal security agency, social security administration bureau of old-age and survivor insurance
to provide coverage for national guard state civilian employees under the old-age and survivor
insurance provisions of the Social Security Act as provided in section 218 of the Social Security
Act amendments of 1950 [Pub. L. 81-734; 64 Stat. 514; 42 U.S.C. 418]. For purposes of the
agreement, the executive director may make such collections, contributions, and reports as may
be required by the federal agency under the terms of the agreement.
52-10-04. Contributions by employees of the state and of political subdivisions.
1. Every employee of the state or of a political subdivision and every employer is required
to pay for the period of such coverage, into the contribution fund established by
section 52-10-06, contributions, with respect to wages, as defined in section 52-10-02,
equal to the amount of the tax which would be imposed by the Federal Insurance
Contributions Act if such services constituted employment within the meaning of that
Act. Such employee's liability shall arise in consideration of the employee's retention in
the service of the state or of a political subdivision or the employee's entry upon such
service, after the enactment of this chapter.
2. The employee's contribution imposed by this section must be collected by deducting
the amount of the contribution from wages as and when paid, but failure to make such
deduction does not relieve the employee from liability for such contribution.
3. If more or less than the correct amount of the contribution imposed by this section is
paid or deducted with respect to any remuneration, proper adjustments, or refund if
adjustment is impracticable, must be made, without interest, in such manner and at
such times as the state agency shall prescribe.
4. All unexpended employer contributions in the social security contribution fund paid in
to provide a fund out of which the legislative assembly could appropriate for the
administration of this chapter and chapter 52-09 as of June 30, 1987, must be
transferred by the office of management and budget to the bureau for deposit by the
bureau into the old-age survivors' fund established by section 52-09-05.
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52-10-05. Plans for coverage of employees of political subdivisions.
1. Each political subdivision of the state is hereby authorized to submit for approval by
the state agency a plan for extending the benefits of title II of the Social Security Act
[42 U.S.C. 401 et seq.], in conformity with applicable provisions of such Act, to
employees of such political subdivision. Each such plan and any amendment thereof
must be approved by the state agency if it finds that such plan, or such plan as
amended is in conformity with such requirements as are provided in regulations of the
state agency, except that no such plan may be approved unless:
a. It is in conformity with the requirements of the Social Security Act and with the
agreement entered into under section 52-10-03;
b. It provides that all services which constitute employment as defined in section
52-10-02 and are performed in the employ of the political subdivision by
employees thereof, shall be covered by the plan;
c. It specifies the source or sources from which the funds necessary to make the
payments required by subdivision a of subsection 3 and by subsection 4 are
expected to be derived and contains a reasonable assurance that such sources
will be adequate for such purpose;
d. It provides for such methods of administration of the plan by the political
subdivision as are found by the state agency to be necessary for the proper and
efficient administration of the plan;
e. It provides that the political subdivision will make such reports, in such form and
containing such information, as the state agency may from time to time require,
and comply with such provisions as the state agency or the secretary of health
and human services may from time to time find necessary to assure the
correctness and verification of such reports; and
f. It authorizes the state agency to terminate the plan in its entirety, in the discretion
of the state agency, if it finds that there has been a failure to comply substantially
with any provision contained in such plan, such termination to take effect at the
expiration of such notice and on such conditions as may be provided by
regulations of the state agency and may be consistent with the provisions of the
Social Security Act.
2. The state agency may not finally refuse to approve a plan submitted by a political
subdivision under subsection 1, and may not terminate an approved plan, without
reasonable notice and opportunity for hearing to the political subdivision affected
thereby.
3. a. Each political subdivision as to which a plan has been approved under this
section shall pay into the social security contribution fund, with respect to wages,
as defined in section 52-10-02, at such time or times as the state agency may by
regulation prescribe, contributions in the amounts and at the rates specified in the
applicable agreement entered into by the state agency under section 52-10-03.
b. Each political subdivision required to make payments under subdivision a is
authorized, in consideration of the employee's retention in, or entry upon,
employment after enactment of this chapter, to impose upon each of its
employees, as to services which are covered by an approved plan, a contribution
with respect to the employee's wages, as defined in section 52-10-02, not
exceeding the amount of employee tax which would be imposed by the Federal
Insurance Contributions Act if such services constituted employment within the
meaning of that Act, and to deduct the amount of such contribution from the
employee's wages as and when paid. Contributions so collected must be paid
into the social security contribution fund in partial discharge of the liability of such
political subdivision or instrumentality under subdivision a. Failure to deduct such
contribution does not relieve the employee or employer of liability therefor.
4. Delinquent payments due under subdivision a of subsection 3 must bear interest at the
rate specified in the Social Security Act at 42 U.S.C. 418 and may be recovered by
action in a court of competent jurisdiction against the political subdivision liable
therefor or may, at the request of the state agency, be deducted from any other
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5.
moneys payable to such subdivision by any department or agency of the state. In no
case may the interest imposed hereby be less than five dollars. In addition, a penalty
may be assessed on delinquent reports if such penalty is provided for in the Social
Security Act at 42 U.S.C. 418. Any such penalty must be under the terms, conditions,
and in the amounts specified in the Social Security Act. In no case may any penalty
imposed hereby be less than five dollars. Annually, on each September thirtieth, the
bureau shall determine the balance in the fund created by section 52-10-06 resulting
from interest and penalties collected which are not or will not be due to the secretary of
the treasury. The bureau shall transfer this balance on September thirtieth to the
old-age survivors' fund created by section 52-09-05.
a. When the state, or any political subdivision as defined in section 52-10-02, is
liable for an amount due under an agreement pursuant to this chapter, the state,
or such political subdivision shall remain so liable until the secretary of health and
human services is satisfied that the amount due has been paid to the secretary of
the treasury.
b. Notwithstanding subdivision a, the state, or any political subdivision as defined in
section 52-10-02, is not liable for an amount due under an agreement pursuant to
this chapter, with respect to the wages paid to individuals, after the expiration of
the latest of the following periods:
(1) Three years, three months, and fifteen days after the year in which such
wages were paid;
(2) Three years after the date on which such amount became due; or
(3) Three years, three months, and fifteen days after January 1, 1962,
unless prior to the expiration of such period the secretary of health and human
services makes an assessment of the amount due from the state, or any political
subdivision.
52-10-06. Social security contribution fund.
1. There is hereby established a special fund to be known as the social security
contribution fund. Such fund must consist of and there must be deposited in such fund:
a. All contributions, interest, and penalties collected under sections 52-10-04 and
52-10-05;
b. All moneys appropriated thereto under this chapter;
c. Any property or securities and earnings thereof acquired through the use of
moneys belonging to the fund;
d. Interest earned upon any moneys in the fund; and
e. All sums recovered upon the bond of the custodian or otherwise for losses
sustained by the fund and all other moneys received from the fund from any other
source.
All moneys in the fund must be mingled and undivided. Subject to the provisions of this
chapter, the state agency is vested with full power, authority, and jurisdiction over the
fund, including all moneys and property or securities belonging thereto, and may
perform any and all acts whether or not specifically designated, which are necessary
to the administration thereof and are consistent with the provisions of this chapter.
2. The social security contribution fund must be established and held separate and apart
from any other funds or moneys of the state and must be used and administered
exclusively for the purpose of this chapter. Withdrawals from such fund must be made
for, and solely for:
a. Payment of amounts required to be paid to the secretary of the treasury pursuant
to an agreement entered into under section 52-10-03;
b. Payment of refunds provided for in subsection 3 of section 52-10-04; and
c. Refunds of overpayments, not otherwise adjustable, made by a political
subdivision or instrumentality.
3. From the social security contribution fund the custodian of the fund shall pay to the
secretary of the treasury such amounts and at such time or times as may be directed
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4.
5.
by the state agency in accordance with any agreement entered into under section
52-10-03 and the Social Security Act.
The treasurer of the state of North Dakota is ex officio treasurer and custodian of the
social security contribution fund and shall administer such fund in accordance with the
provisions of this chapter and the directions of the state agency. All disbursements
from such fund except administrative expenses must be made in accordance with
such regulations as the state agency may prescribe.
a. There are hereby authorized to be appropriated annually to the contribution fund,
in addition to the contributions collected and paid into the contribution fund under
sections 52-10-04 and 52-10-05, to be available for the purposes of subsections
2 and 3 until expended, such additional sums as are found to be necessary in
order to make the payments to the secretary of the treasury which the state is
obligated to make pursuant to an agreement entered into under section 52-10-03.
b. The state agency shall submit to each regular session of the legislative assembly,
at least ninety days in advance of the beginning of such session, an estimate of
the amounts authorized to be appropriated to the social security contribution fund
by subdivision a for the next appropriation period.
52-10-07. Referenda and certification.
1. With respect to employees of the state and political subdivisions who are under
chapter 52-09 or who may by election come under that chapter, the governor is
empowered to authorize a referendum, and with respect to the employees of any
political subdivision who are under a locally administered retirement system, the
governor shall authorize a referendum upon request of the governing body of such
subdivision; and with respect to employees covered by any other retirement system,
the governor may authorize a referendum; and in either case the referendum must be
conducted and the governor shall designate an agency or individual to supervise its
conduct, in accordance with the requirements of section 218(d)(3) of the Social
Security Act [42 U.S.C. 418], on the question of whether service in positions covered
by a retirement system established by the state or by a political subdivision thereof
should be excluded from or included under an agreement under this chapter. The
notice of referendum required by section 218(d)(3)(C) of the Social Security Act [42
U.S.C. 418] to be given to employees must contain or must be accompanied by a
statement, in such form and such detail as the agency or individual designated to
supervise the referendum shall deem necessary and sufficient, to inform the
employees of the rights which will accrue to them and their dependents and survivors,
and the liabilities to which they will be subject, if their services are included under an
agreement under this chapter.
2. Upon receiving evidence satisfactory to the governor that with respect to any such
referendum the conditions specified in section 218(d)(3) of the Social Security Act [42
U.S.C. 418] have been met, the governor, or an official designated by the governor to
act in the governor's behalf in respect to this subsection, shall so certify to the
secretary of health and human services.
52-10-08. Rules and regulations.
The state agency shall make and publish such rules and regulations, not inconsistent with
the provisions of this chapter, as it finds necessary or appropriate to the efficient administration
of the functions with which it is charged under this chapter. Such regulations must require the
employers to make such reports in such form and containing such information as the state
agency may from time to time request, and must require employers to comply with such
provisions as the state agency or the secretary of health and human services may from time to
time find necessary to assure the correctness and verification of such reports.
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52-10-09. Studies and reports.
The state agency shall submit a biennial report to the governor and the secretary of state in
accordance with section 54-06-04.
52-10-10. Identification of enlarged or reorganized public school district - Liability of
surviving district.
1. As used in this section, "most populous district" means the public school district
involved in annexation or reorganization of school districts:
a. Which maintained an elementary school;
b. More than one-half of which is included in the enlarged or reorganized public
school district; and
c. Which had a larger number of children of school age at the school census next
preceding the inclusion of such district in the enlarged or reorganized public
school district than any other public school district of the type described in
subdivisions a and b which is included in the enlarged or reorganized public
school district.
2. For the purposes of this chapter when an enlarged or reorganized school district is
formed:
a. The most populous district must be deemed to be the surviving district for social
security purposes.
b. The enlarged or reorganized public school district shall retain the same
identification number which was previously assigned to the most populous
district, as defined in subsection 1.
c. The school districts, or parts thereof, included in the enlarged or reorganized
district must be deemed to be annexed to the most populous district, or the part
of the most populous district included in the enlarged or reorganized district, and
to become identified with it, and the employees of the public school districts
included in the enlarged or reorganized district, or if only part of a district is
included in the enlarged or reorganized district, the employees who were
employed in schools included within the enlarged or reorganized district must be
deemed to be employees of the most populous district, which shall succeed the
other districts in such enlarged district as a party to their respective contracts of
employment.
52-10-11. Systems divided - Referendum on social security.
1. Notwithstanding the provisions of sections 52-10-05 and 52-10-07, with respect to the
employees of any political subdivision who are under a locally administered retirement
system in existence prior to April 23, 1957, including the North Dakota teachers'
insurance and retirement fund for the purposes of this section, the governor is
empowered to authorize a referendum for a divided retirement system as provided by
section 218 of title II of the Social Security Act [42 U.S.C. 418]. The system must be
divided as follows:
a. Group A of the divided retirement system must be composed of:
(1) Persons, in positions covered in a locally administered retirement system at
the time the political subdivision submits the plan of coverage, who have
indicated in accordance with this section that they desire coverage under an
agreement under section 218 of title II of the federal Social Security Act [42
U.S.C. 418]; and
(2) Individuals, including former employees, who become employed in a
position covered by a local retirement system after April 23, 1957, and
inactive members who become employed in positions covered by a locally
administered retirement system after said date.
b. Group B must be composed of all other persons who are employed in positions
covered by a local retirement system at the time referred to in paragraph 1 of
subdivision a.
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2.
3.
4.
Each person who is an actively employed person in a position covered by a local
retirement system on the date the political subdivision makes application to the
governor for a referendum under this section shall indicate whether the person desires
to be a member of group A or group B on a form furnished for that purpose by the state
agency and deliver said form to the office of the state agency. An employee who
chooses to become a member of group A shall thereby elect to become subject to the
laws relating to group A. Each such employee shall enter the employee's mailing
address on such form. At the time the state agency certifies to the governor that the
plan of coverage required by section 52-10-05 meets the requirements of the law, the
state agency shall certify to the governor the names and addresses of the employees
of the political subdivision who have indicated their desire to become members of
group A.
When the state agency has certified to the governor the names and addresses of
group A, the governor shall forthwith take all actions necessary for the conduct of a
referendum under section 52-10-07 so that members of group A may vote in favor of or
against coverage under the federal old-age and survivors' insurance system. If a
majority of the members of group A vote in favor of such coverage, the amendments
made and provisions created by this section shall be fully operative. If less than a
majority vote in favor of such coverage, such amendments and provisions do not
continue in effect and a retirement system must be deemed not to be divided into
group A and group B.
Employees in positions covered by locally administered retirement plans who have
indicated their desire to become members of group B under this section may request a
transfer to group A, provided such request is in writing and received by the state
agency within the time limit specified in section 218 of title II of the Social Security Act
[42 U.S.C. 418].
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