SSR 63-52c: SECTION 218. -- EMPLOYEE OF POLITICAL SUBDIVISION

SSR 63-52c

MILLER v. FLEMMING , 275 F.2d 763 (9th Cir., 1960)

Before CHAMBERS and KOELSCH, Circuit Judges and BOLDT, District

Judge

BOLDT, District Judge

This is an appeal from a judgment affirming an administrative order of

the appeal[s] council of the Social Security Administration, Department of

Health, Education and Welfare, denying appellant old-age benefits under

Title II of the Social Security Act. The question presented is whether

plaintiff has the necessary quarters of coverage for a fully insured

status entitling him to old-age insurance benefits. The answer to that

question depends upon whether payments to appellant for certain services

performed for the city of Los Angeles were, within the meaning of the Act,

earnings from self-employment as an independent contractor or constituted

wages received as an employee of the city. If during the period in

question appellant was not an employee but worked and was paid as an

independent contractor he qualifies for the benefits sought, otherwise

not.

For 50 years prior to March 1955 appellant was a city employee in the

Bureau of Street Maintenance which conducts and supervises maintenance,

repair and clearance of the city streets. During the latter part of such

employment appellant was director of the bureau and had supervision over

all its activities and personnel. At the end of February 1955, having

reached compulsory retirement age, appellant was retired as mandatorily

required by the city employees' retirement plan. At that time he was

succeeded as director of the bureau by a former assistant. Payment to any

retired employee for any service rendered after retirement as an employee

of the city is prohibited by the city

charter

es and personnel. At the end of February 1955, having

reached compulsory retirement age, appellant was retired as mandatorily

required by the city employees' retirement plan. At that time he was

succeeded as director of the bureau by a former assistant. Payment to any

retired employee for any service rendered after retirement as an employee

of the city is prohibited by the city

charter. [1] On February 23,

1955, a few days before his retirement, appellant and city officials

signed a written contract whereunder appellant was engaged as a consultant

to the city on lot clearing, street repairs, and similar matters for the

period from February 23, 1955 to June 20, 1956. Pursuant to the contract

appellant continued for the term specified in compensated service for the

city.

Following a hearing the referee found and held that, as defined in the

Social Security Act, appellant was an employee of the city during the term

of the contract and by reason thereof lacked quarters of coverage to

qualify for old age benefits. Such ruling was confirmed by the appeal[s]

council and that decision was affirmed by the judgment reviewed on this

appeal.

Appellant contends that his legal status in relationship to the city

during the period in question was that of independent contractor as a

matter of law by virtue of the written contract. He further contends that

if a fact question was raised as to his independent contractor status, the

administrative finding negativing such status was not supported by

substantial evidence on the whole record.

ant contends that his legal status in relationship to the city

during the period in question was that of independent contractor as a

matter of law by virtue of the written contract. He further contends that

if a fact question was raised as to his independent contractor status, the

administrative finding negativing such status was not supported by

substantial evidence on the whole record.

Ordinarily, when contracting parties in a written agreement for personal

service specify the nature and extent of contractual objectives and the

manner and conditions under which the services are to be performed, the

legal character of the relationship thus created is determined by

interpretation of the contract, which is a matter of law for the court. Batt v. San Diego Sun Publishing Co. , 69 P. 2d 216 (1937), McReynolds v. Oklahoma Turnpike Authority , 291 P. 2d 341 (1955).

However, as the cited cases indicate, where the contract, as in the

present instance, is in general terms, vague, ambiguous and uncertain as

to the duties to be performed, and neither the results to be obtained nor

the time, manner or place of performance are stated with any particularity

therein, the true relationship between the parties must be determined as a

question of fact from all the facts and circumstances shown by the

evidence, which bear upon the relationship, including the form and content

of the signed agreement. The fact that appellant is referred to in the

contract as "contractor" may be circumstance negativing an

employer-employee relationship but the fact of such designation, in

itself, does not establish an independent contractor relationship either

as a matter of fact or of law.

No authority cited by appellant sustains his first contention. We hold it

to be without merit.

signed agreement. The fact that appellant is referred to in the

contract as "contractor" may be circumstance negativing an

employer-employee relationship but the fact of such designation, in

itself, does not establish an independent contractor relationship either

as a matter of fact or of law.

No authority cited by appellant sustains his first contention. We hold it

to be without merit.

Finding of facts determining the legal status of appellant in his

relationship to the city during the period in question is largely a matter

of inferences reasonably to be drawn from the direct evidence. If on the

whole record it may reasonably and fairly be inferred that in fact

appellant continued in an employee status after his retirement,

notwithstanding payment for services in that status would violate the city

charter, we are not free to choose inferences tending to the contrary and

thus to substitute our fact finding for that of the administrative agency. Universal Camera Corp. v. N.L.R.B. , 340 U.S. 474 (1951), Goldman

v. Folsom ; 246 F.2d 776 (3rd Cir. 1957).

Analysis of the record as a whole shows that it contains ample evidence

supporting the fact findings of the referee and of the appeal board of the

Social Security Administration. The judgment is affirmed.

[1] Section 508C(2): "No person

who shall have been retired from the service and employment of the City of

Los Angeles pursuant to the provisions of this article shall thereafter be

paid for any service rendered as an officer or employee of said City,

except for service rendered as an election officer, or as an officer

elected by the electors of said city."