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Tuesday, August 02, 2011

Different types of appointments and employments in the public sector may be made by appointing authorities


Different types of appointments and employments in the public sector may be made by appointing authorities
Matthews v Morristown, 286 A.D.2d 535

Typically a public officer or employee is appointed to a specific position by a particular appointing authority. There are, however, a number of special employment situations in the public service, the four most common being:

1. Joint appointment -- a single individual is employed in a single position funded by two different appointing authorities.

2. Shared employment -- two or more individuals are employed part-time by a single appointing authority and “share” a single position.

3. Dual employment -- a single individual is employed by the same employer to simultaneously serve two different positions.

4. Extra service employment -- an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Matthews case involves another type of employer-employee relationship, the special employee.

An employee of the Town of Oswegatchie, Jerry L. Matthews, was severely injured when he was struck by road-grading equipment owned by the Town of Morristown and operated by one of Morristown's employee. This equipment was being used to complete a road project for the Town of Oswegatchie pursuant to a “shared services” agreement entered into by a number of towns in St. Lawrence County.

Matthews sued Morristown seeking damages for his injuries. Morristown named Oswegatchie as a third-party defendant for the purpose of obtaining indemnification from it if Morristown was held liable for Matthews injuries.

Then Morristown and Oswegatchie each moved for summary judgment, claiming that Morristown's machine operator was a “special employee” of Oswegatchie and, therefore, Matthews co-employee.

What is the significance of having such status as “special employee?” If there was a “co-employee” relationship, Matthews exclusive remedy is workers' compensation and he cannot sue Morristown for damages.

The Appellate Division, Third Department explained that “[w]hether a general employee of one employer [here Morristown] may be a special employee of another [here Oswegatchie] is generally a question of fact involving consideration of a number of factors.

Citing Braxton v Mendelson, 233 NY 122, the court said that a number of elements may be helpful in attempting to decide the question. These include who pays the employee's wages; the right to hire or discharge; the right to direct the employee where to go, and what to do; the custody or ownership of the tools and appliances the employee may use in his or her work; and the business of the employer or that of the “special employer.”

In this case these were unresolved issues. The shared services agreement specifically authorized Morristown to provide public works “services” to other municipalities and receive a like number of hours of service in return. The “shared services agreement,” however, did not state that Morristown's employees would be “deemed” employees of the other municipalities when such other municipalities were receiving services being provided by Morristown.

The key issue: Was Morristown's employee in the special employment of Oswegatchie at the time of the accident or was he performing the work which was his duty to perform for Morristown as a Morristown employee pursuant to the shared services agreement.

Finding that “this record does not incontrovertibly demonstrate” that Morristown “exercised exclusive 'control and direction of the manner, details and ultimate results of employee's work,'” the Appellate Division reversed the Supreme Court's order granting Morristown's and Oswegatchie's motions for summary judgment. 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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