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B-155751, SEP 17, 1971

B-155751 Sep 17, 1971
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RIETH: FURTHER REFERENCE IS MADE TO YOUR MEMORANDUM OF JUNE 23. YOU POINT OUT THAT UNDER SECTION 4101(2)(A) OF THE TRAINING ACT "EMPLOYEE" IS DEFINED AS "AN INDIVIDUAL EMPLOYED IN OR UNDER AN AGENCY *** " AND THAT EMPLOYEES OF GALLAUDET COLLEGE ARE EMPLOYED UNDER THE DEPARTMENT OF HEALTH. IN RESPONSE TO YOUR CONTENTION THAT WHILE WORKING AT GALLAUDET YOU WERE EMPLOYED "UNDER AN AGENCY (HEW) *** " WITHIN THE DEFINITION OF 5 U.S.C. 4101. IN WHICH WE CONCLUDED THAT EMPLOYEES OF GALLAUDET COLLEGE ARE NOT EMPLOYEES OF A BUREAU OR DIVISION OF THE DEPARTMENT OF HEALTH. THAT THEY ARE NOT EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ALL PURPOSES OF LAW. WELFARE IS CHARGED WITH "SUPERVISION OF PUBLIC BUSINESS RELATING TO GALLAUDET COLLEGE.

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B-155751, SEP 17, 1971

CIVILIAN EMPLOYEE - CONTINUOUS GOVERNMENT SERVICE - GALLAUDET COLLEGE ADVISING THAT THE STATUS OF CLAIMANT AS AN EMPLOYEE OF GALLAUDET COLLEGE CANNOT COUNT TOWARDS THE ONE YEAR OF CURRENT CONTINUOUS CIVILIAN SERVICE REQUIRED BY SECTION 4106(A)(2) OF TITLE 5, UNITED STATES CODE, IN ORDER TO QUALIFY FOR THE BENEFITS UNDER THAT ACT.

TO MISS VIRGINIA L. RIETH:

FURTHER REFERENCE IS MADE TO YOUR MEMORANDUM OF JUNE 23, 1971, IN WHICH YOU INQUIRE AS TO YOUR STATUS AS AN EMPLOYEE OF GALLAUDET COLLEGE DURING THE PERIOD JUNE 24, 1969, THROUGH MARCH 2, 1971. YOU ASK WHETHER SUCH SERVICE CAN BE COUNTED TOWARD THE 1 YEAR OF CURRENT, CONTINUOUS CIVILIAN SERVICE REQUIRED BY SECTION 4106(A)(2) OF TITLE 5, U.S.C. (GOVERNMENT EMPLOYEES TRAINING ACT), IN ORDER THAT YOU MAY QUALIFY FOR BENEFITS UNDER THAT ACT. YOU POINT OUT THAT UNDER SECTION 4101(2)(A) OF THE TRAINING ACT "EMPLOYEE" IS DEFINED AS "AN INDIVIDUAL EMPLOYED IN OR UNDER AN AGENCY *** " AND THAT EMPLOYEES OF GALLAUDET COLLEGE ARE EMPLOYED UNDER THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

IN RESPONSE TO YOUR CONTENTION THAT WHILE WORKING AT GALLAUDET YOU WERE EMPLOYED "UNDER AN AGENCY (HEW) *** " WITHIN THE DEFINITION OF 5 U.S.C. 4101, PUBLIC LAW 85-507, 72 STAT. 327, JULY 7, 1958, WE REFER YOU TO OUR DECISION B-155751, JANUARY 14, 1965, IN WHICH WE CONCLUDED THAT EMPLOYEES OF GALLAUDET COLLEGE ARE NOT EMPLOYEES OF A BUREAU OR DIVISION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, AND THAT THEY ARE NOT EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ALL PURPOSES OF LAW. POINTED OUT THAT WHILE UNDER SECTION 31-1022 OF THE DISTRICT OF COLUMBIA CODE THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IS CHARGED WITH "SUPERVISION OF PUBLIC BUSINESS RELATING TO GALLAUDET COLLEGE," THE INTERNAL AFFAIRS AND ADMINISTRATION OF THE COLLEGE IS UNDER THE "DIRECTION AND CONTROL" OF THE BOARD OF DIRECTORS COMPOSED AS DESCRIBED IN SECTION 31-1029, WITH THE CORPORATE POWERS ENUMERATED IN SECTION 31-1030.

AS WE FURTHER STATED IN THE DECISION OF JANUARY 14, 1965, THE LEGISLATIVE HISTORY OF PUBLIC LAW 420, 83D CONGRESS, 68 STAT. 265, APPROVED JUNE 18, 1954, WHICH AMENDED THE CHARTER OF THE COLUMBIA INSTITUTION FOR THE DEAF (GALLAUDET COLLEGE), SHOWS THAT THROUGHOUT ITS HISTORY GALLAUDET HAS NEVER BEEN A FEDERAL INSTRUMENTALITY, ALTHOUGH MOST OF ITS FACILITIES AND SUPPORT HAVE COME FROM FEDERAL APPROPRIATIONS, AND FURTHER THAT EMPLOYEES OF THE INSTITUTION ARE NOT FEDERAL EMPLOYEES EXCEPT FOR CERTAIN BENEFITS - I.E., LIFE INSURANCE, CIVIL SERVICE RETIREMENT, AND HEALTH INSURANCE - WHICH ARE SPECIFICALLY MADE APPLICABLE TO SUCH EMPLOYEES. WE ARE ENCLOSING A COPY OF THAT DECISION FOR YOUR USE AND INFORMATION.

THE RECORD SHOWS THAT YOU PLAN TO ENROLL AT AMERICAN UNIVERSITY LAW SCHOOL FOR THE FALL SEMESTER AND ONE OF THE COURSES YOU PLAN TO TAKE IS ENTITLED "ELEMENTS OF PROPERTY I." WITH RESPECT TO TRAINING IN NON GOVERNMENT FACILITIES, 5 U.S.C. 4106 PROVIDES IN PART:

"(A) THE TRAINING OF EMPLOYEES BY, IN, AND THROUGH NON-GOVERNMENT FACILITIES UNDER THIS CHAPTER IS SUBJECT TO THE FOLLOWING LIMITATIONS:

"(2) AN EMPLOYEE HAVING LESS THAN 1 YEAR OF CURRENT, CONTINUOUS CIVILIAN SERVICE IS NOT ELIGIBLE FOR TRAINING UNLESS THE HEAD OF HIS AGENCY DETERMINES, UNDER REGULATIONS PRESCRIBED UNDER SECTION 4118 OF THIS TITLE, THAT TRAINING FOR THE EMPLOYEE IS IN THE PUBLIC INTEREST.

"(B) ON RECOMMENDATION OF THE HEAD OF AN AGENCY, THE COMMISSION MAY WAIVE, WITH RESPECT TO THAT AGENCY OR PART THEREOF OR ONE OR MORE EMPLOYEES THEREIN, ALL OR ANY OF THE LIMITATIONS COVERED BY SUBSECTION (A) OF THIS SECTION, IF THE COMMISSION DETERMINES THAT THE APPLICATION OF ALL OR ANY OF THE LIMITATIONS THERETO IS CONTRARY TO THE PUBLIC INTEREST. THE COMMISSION, IN THE PUBLIC INTEREST, MAY REIMPOSE ALL OR ANY OF THE LIMITATIONS SO WAIVED."

OUR VIEW IS THAT THE TERM "CONTINUOUS CIVILIAN SERVICE" AS USED IN "(A)(2)" ABOVE REFERS TO SERVICE AS A FEDERAL GOVERNMENT EMPLOYEE. THEREFORE, SERVICE WITH GALLAUDET COLLEGE MAY NOT BE REGARDED AS CONTINUOUS CIVILIAN SERVICE FOR THE PURPOSE OF MEETING THE 1-YEAR REQUIREMENT SPECIFIED IN THE ACT.

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