20 CFR 404.1270-404.1274
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. 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. 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.
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