B-151556, JUN. 27, 1963

B-151556, JUN. 27, 1963

TO MR. E. W. LAWS, AUTHORIZED CERTIFYING OFFICER, BUREAU OF EMPLOYEES' COMPENSATION:

ON MAY 2, 1963, YOU REQUESTED OUR DECISION WHETHER A VOUCHER FOR $387.80 IS PROPER FOR PAYMENT TO MR. WILLIAM D. DRISCOLL.

YOU INFORM US THAT:

"MR. DRISCOLL WAS FORMERLY EMPLOYED BY THIS BUREAU AS DEPUTY DIRECTOR AND RETIRED IN JULY, 1962. HE IS RECEIVING AN ANNUITY IN THE AMOUNT OF $420.00 PER MONTH OR $5,040.00 PER ANNUM UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT. EFFECTIVE NOVEMBER 7, 1962, HE RECEIVED AN EXCEPTED APPOINTMENT NOT TO EXCEED THREE MONTHS AS AN INTERMITTENT RE- EMPLOYED ANNUITANT FOR THE POSITION OF CONSULTANT AT THE RATE OF $75.00 PER DAY SUBJECT TO DEDUCTIONS OF AMOUNT OF ANNUITY. COPY OF STANDARD FORM 50 "NOTIFICATION OF PERSONNEL ACTION" IS ENCLOSED. HE WAS EMPLOYED FOR A TOTAL OF 20 DAYS OF 8 HOURS PER DAY AND HE WAS PAID COMPENSATION IN THE GROSS AMOUNT OF $1,112.20 LESS WITHHOLDINGS FOR FEDERAL AND STATE TAXES. THIS WAS COMPUTED ON THE BASIS OF $75.00 PER DAY CONVERTED TO AN ANNUAL RATE LESS THE PER ANNUM ANNUITY, AND THE BALANCE CONVERTED TO A DAILY RATE OF $55.61. THIS RESULTED IN A DEDUCTION OF $387.80 ON ACCOUNT OF THE ANNUITY.

"MR. DRISCOLL IS MAKING CLAIM FOR THE AMOUNT DEDUCTED ON ACCOUNT OF THE ANNUITY AND IS BASING HIS CLAIM ON THE COURT OF CLAIMS DECISION OF NOVEMBER 7, 1962 IN THE CASE OF BOYLE VS UNITED STATES (LETTER FROM MR. DRISCOLL DATED APRIL 11, 1963 IS ENCLOSED). IN THIS DECISION IT WAS HELD THAT BOYLE WAS AN INDEPENDENT CONTRACTOR RATHER THAN AN EMPLOYEE AND THE COMPENSATION WAS NOT SUBJECT TO THE DEDUCTION FOR ANNUITY.

"OATH OF OFFICE FOR MR. DRISCOLL WAS GIVEN IN THE BUREAU'S OFFICE IN NEW YORK CITY ON NOVEMBER 7, 1962. HIS WORK CONSISTED OF DRAFTING REVISIONS OF THE REGULATIONS GOVERNING THE LONGSHOREMAN'S AND HARBOR WORKERS'S COMPENSATION ACT AND THE DEFENSE BASES COMPENSATION ACT WHICH ARE ADMINISTERED BY THIS BUREAU. HE ALSO FURNISHED ADVICE CONCERNING INSURANCE PROGRAMS FOR CERTAIN EMPLOYERS HAVING EMPLOYEES COVERED BY THE ABOVE REFERENCED ACTS. THE DUTIES WERE PERFORMED AT THE BUREAU'S OFFICE IN NEW YORK CITY WITH THE EXCEPTION OF TWO DAYS IN WASHINGTON, D.C. HIS HOURS WERE THE SAME AS THE BUREAU'S EMPLOYEES. WE ARE ALSO ENCLOSING A COPY OF STANDARD FORM 50 ,NOTIFICATION OF PERSONNEL ACTION" TERMINATING THE APPOINTMENT.'

BOYLE V. UNITED STATES, CT.CL. NO. 300-60, DECIDED NOVEMBER 7, 1962, INVOLVED THE PROCUREMENT OF THE SERVICES OF MR. BOYLE AS A CONSULTANT BY CONTRACT, NOT BY APPOINTMENT. THE CONTRACT INVOLVED SPECIFICALLY PROVIDED THAT AN INDEPENDENT CONTRACTOR RELATIONSHIP WAS CREATED. THIS OFFICE QUESTIONED WHETHER, IN FACT, THE CONTRACT HAD ACTUALLY CREATED SUCH A RELATIONSHIP SO AS TO EXCEPT MR. BOYLE FROM THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT, APPROVED MAY 29, 1930, CH. 349, AS AMENDED, 5 U.S.C. 2263 (B), IN ACCORDANCE WITH WHICH HIS COMPENSATION HAD BEEN REDUCED BY THE AMOUNT OF HIS CIVIL SERVICE RETIREMENT ANNUITY. HOWEVER, THE COURT OF CLAIMS HELD THAT "UNDER THE WRITTEN CONTRACTS AND THE PARTICULAR FACTS," AN INDEPENDENT CONTRACTOR RELATIONSHIP WAS CREATED AND THAT NO EMPLOYMENT WAS INVOLVED. WE DO NOT BELIEVE THE BOYLE CASE IS TO BE INTERPRETED AS HOLDING THAT ALL RETIRED EMPLOYEES ENGAGED BY THE GOVERNMENT BY MEANS OF A CONTRACT ARE EXEMPT FROM SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT. IF THE RELATIONSHIP CREATED BY A CONTRACT IS THAT OF EMPLOYER-EMPLOYEE, SECTION 13 (B) MUST BE APPLIED AND THE APPROPRIATE DEDUCTIONS MADE FROM COMPENSATION. CF. B-143029, DECEMBER 26, 1962.

NO INTENT TO CREATE AN INDEPENDENT CONTRACTOR RELATIONSHIP APPEARS IN THE CIRCUMSTANCES OF HIRING MR. DRISCOLL. MR. DRISCOLL WAS NOT ENGAGED BY CONTRACT BUT WAS APPOINTED AND GIVEN AN OATH OF OFFICE. NEITHER THE NATURE OF HIS DUTIES OR THE PLACE, TIME, OR MANNER IN WHICH THE DUTIES WERE PERFORMED INDICATE THAT AN INDEPENDENT CONTRACTOR RELATIONSHIP WAS INTENDED OR IN FACT EXISTED. RATHER, THE RELATIONSHIP WHICH EVIDENTLY WAS INTENDED AND WHICH EXISTED WAS AN EMPLOYER-EMPLOYEE RELATIONSHIP. DEDUCTION OF THE ANNUITY, THEREFORE, WAS PROPER, AND THE VOUCHER WHICH IS RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS, MAY NOT BE CERTIFIED FOR PAYMENT.