B-154570, MAY 8, 1973

B-154570, MAY 8, 1973

DECISION DENYING CIVIL SERVICE RETIREMENT ELIGIBLITY OF TIME SERVED AS A COLLABORATOR WITH THE DEPARTMENT OF AGRICULTURE. NO EMPLOYEE STATUS ESTABLISHED WITHIN THE CIVIL SERVICE OF THE UNITED STATES AS CONTEMPLATED BY THE RETIREMENT LAWS.

TO DR. LEWIS H. ROHRBAUGH:

WE REFER FURTHER TO YOUR LETTER OF DECEMBER 12, 1972, WHEREIN YOU REQUEST WE REVIEW THE DECISION REPORTED AT 7 COMP. GEN. 246 (1927) CONCERNING THE STATUS OF COLLABORATORS WITH RESPECT TO CIVIL SERVICE RETIREMENT ELIGIBILITY.

THE CASES CONSIDERED IN THAT DECISION INVOLVED SO-CALLED COLLABORATORS WITH THE DEPARTMENT OF AGRICULTURE WHO RECEIVED NO COMPENSATION OR $1 A YEAR FROM GOVERNMENT FUNDS. THE REGULAR COMPENSATION PAID TO SUCH INDIVIDUALS CAME FROM STATE OR OTHER AGENCIES WHILE THEIR STATUS AS COLLABORATORS PROVIDED ONLY FOR THEIR AVAILABILITY FOR USE BY THE DEPARTMENT OF AGRICULTURE AS NEEDED. IT WAS OUR OPINION THAT THE APPOINTMENT OR DESIGNATION OF A COLLABORATOR UNDER SUCH CIRCUMSTANCES DID NOT ESTABLISH AN EMPLOYEE STATUS WITHIN THE CIVIL SERVICE OF THE UNITED STATES AS CONTEMPLATED BY THE RETIREMENT LAWS. ACCORDINGLY IT WAS HELD THAT SUCH COLLABORATORS WERE NOT ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE RETIREMENT AND DISABILITY ACTS.

IT APPEARS THAT YOU RESIGNED FROM THE DEPARTMENT OF AGRICULTURE IN 1945 TO BECOME DIRECTOR OF THE DEPARTMENT OF AGRICULTURE GRADUATE SCHOOL - A NON-GOVERNMENT AGENCY - AND YOU WERE DESIGNATED A COLLABORATOR. AS SUCH YOU CLAIM CREDITABLE SERVICE FOR CIVIL SERVICE RETIREMENT FOR THE PERIOD FROM SEPTEMBER 1, 1945, TO JULY 1, 1952.

AS YOU INDICATE, THE CIVIL SERVICE COMMISSION HAS DETERMINED THAT YOU ARE NOT ENTITLED TO CREDITABLE SERVICE FOR THE PERIOD CLAIMED AND APPARENTLY IN SO DOING HAS REFERRED TO OUR DECISION IN 7 COMP. GEN. 246. AT THE TIME THAT DECISION WAS RENDERED THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT ACT WAS NOT VESTED IN THE CIVIL SERVICE COMMISSION AND THE ACT DID NOT CONTAIN THE SAME WORDING AS THE CURRENT ACT.

UNDER THE CURRENT ACT THE CIVIL SERVICE COMMISSION IS RESPONSIBLE FOR THE ADMINISTRATION OF THE CIVIL SERVICE RETIREMENT SYSTEM INCLUDING THE ADJUDICATION OF CLAIMS THEREUNDER. 5 U.S.C. 8347. THE AUTHORITY OF THE COMMISSION IN THAT REGARD EXTENDS TO DETERMINATIONS OF THE AMOUNT OF SERVICE CREDIT AN EMPLOYEE MAY RECEIVE UNDER 5 U.S.C. 8332. ACCORDINGLY WE HAVE TAKEN THE POSITION THAT WHAT CONSTITUTES CREDITABLE SERVICE FOR THE PURPOSE OF THE CIVIL SERVICE RETIREMENT ACT IS A MATTER PRIMARILY FOR DETERMINATION OF THE CIVIL SERVICE COMMISSION AND WE ARE WITHOUT AUTHORITY TO RENDER AN AUTHORITATIVE DECISION CONCERNING SUCH MATTER. 41 COMP. GEN. 460, 463 (1962); 25 ID. 631, 633 (1946). WHILE WE HAVE RENDERED DECISIONS ON CIVIL SERVICE MATTERS IN THE PAST THEY ARE NOW REGARDED AS ADVISORY IN NATURE. WE ASSUME IT IS THE COMMISSION'S POLICY TO FOLLOW SUCH DECISIONS IN THE ABSENCE OF ANY INDICATION THAT THEY WERE CLEARLY ERRONEOUS.

IT IS OUR UNDERSTANDING THAT WHILE THE COMMISSION CONSIDERED YOUR COLLABORATOR SERVICE AS COMPARABLE TO THE SERVICES PERFORMED BY THE COLLABORATORS IN 7 COMP. GEN. 246 ITS DECISION ON YOUR CLAIM EXTENDED TO ALL THE FACTS BEARING ON THE NATURE AND TYPE OF SERVICE RENDERED. SINCE THE RECORD INDICATES THAT YOU AS A COLLABORATOR DID NOT RECEIVE A REGULAR FEDERAL APPOINTMENT AND WERE NOT PAID FROM FUNDS APPROPRIATED FOR THE PURPOSE OF THE PAYMENT OF SALARIES OF REGULAR GOVERNMENT EMPLOYEES, IT WOULD SEEM TO US THAT A VALID BASIS EXISTS FOR DENYING CREDIT OF YOUR COLLABORATOR SERVICE FOR CIVIL SERVICE RETIREMENT PURPOSES.