SSR 67-27: SECTION 218(s). -- STATE AND LOCAL COVERAGE -- COMMISSIONER'S RULING ON STATE'S REQUEST FOR REVIEW -- SERVICES FOR COUNTY AS NIGHT WATCHMAN

20 CFR 404.1270-404.1274

SSR 67-27

Section 218(s) of the Social Security Act, as amended, provides that

where an assessment of an amount due by a State under a Federal-State

agreement pursuant to section 218 has been made or a State's claim for a

credit or refund of an overpayment under such agreement has been

disallowed, or a State has been allowed a credit or refund of an

overpayment under such agreement, the Secretary shall, upon written

request filed by the State within a stipulated time, review such

assessment, disallowance or allowance and shall render a decision

affirming, modifying, or reversing such assessment, disallowance, or

allowance stating the basis therefor. The Secretary has delegated to the

Commissioner of Social Security authority to make reviews and findings and

to give notice of his findings as required by section 218(s).

The State of Missouri timely requested a review pursuant to section

218(s) of the assessment made pursuant to the Administration's

determination that the wage earner's services as a night watchman guarding

attached property which was the subject of pending litigation were

performed as an employee of Jasper County, Missouri, and covered under the

State's agreement with the Secretary made pursuant to section 218.

The facts in this matter are that the wage earner was engaged by the

sheriff of Jasper County, Missouri, on May 2, 1962, pursuant to an order

of the Circuit Court of Jasper County to guard property seized under levy

sold to satisfy a judgment of the court. The wage earner performed

services as a night watchman until July 2, 1962. During this period he

worked on a regular basis from 7:00 p.m. until 7:00 a.m. each day. The

wage earner and the day watchman were each required to work 12 hours a day

so that a 24 hour guard was maintained, but the specific hours worked were

agreed upon between them

levy

sold to satisfy a judgment of the court. The wage earner performed

services as a night watchman until July 2, 1962. During this period he

worked on a regular basis from 7:00 p.m. until 7:00 a.m. each day. The

wage earner and the day watchman were each required to work 12 hours a day

so that a 24 hour guard was maintained, but the specific hours worked were

agreed upon between them. The wage earner received instructions as to how

to perform his duties from the sheriff, who had the right to change his

methods or otherwise direct him as to how to do the work. The wage earner

was paid at a fixed hourly rate of $1.50 and received a total of $981.00

for his services. This amount was derived from the proceeds of the sale

and charged as a cost of the action.

There is no disagreement as to these facts. It is the State's view,

however, that the sheriff hired and directed the wage earner in the

performance of his duties on behalf of and in the interest of the lienor.

The State consequently holds that the wage earner was an employee of the

lienor. In addition, the State contends that the wage earner could not

legally be an employee of the county since approval of his appointment by

the county court, as required by State law, was not obtained.

The Commissioner reviewed the assessment made and determined that the

wage earner was hired by the sheriff to assist in the performance of the

sheriff's official duties and that the obtaining of such assistance was

authorized both by statute and by the court having jurisdiction over the

res in which assistance was required. The Commissioner also found that the

wage earner was subject to direction and control by the sheriff over the

methods by which he performed his duties

hired by the sheriff to assist in the performance of the

sheriff's official duties and that the obtaining of such assistance was

authorized both by statute and by the court having jurisdiction over the

res in which assistance was required. The Commissioner also found that the

wage earner was subject to direction and control by the sheriff over the

methods by which he performed his duties. Accordingly, the Commissioner

found that the wage earner was an employee of Jasper County with respect

to services he performed as a night watchman even though the technical

provisions of the statute relative to hiring an individual may not have

been followed exactly. On the basis of this finding, the Commissioner

affirmed the assessment.