Independent contractors in the public service

Independent contractors in the public service
Roesch v BOCES, App Div, 259 AD2d 900

The Roesch case is another in a series of actions involving claims for retroactive membership in a public retirement system.

Dorothy E. Roesch claimed that her service as a school psychologist with the Wayne-Finger Lakes BOCES qualified her for retroactive membership in the New York State Teachers’ Retirement System [TRS]. BOCES had rejected Roesch’s application on the grounds that she was a consultant on a per diem basis serving as an independent contractor and therefore she was ineligible to join TRS during the time in question.

The decision indicated that there were neither payroll or personnel records nor any formal appointment action by BOCES to employ her.

In contrast, such types of records were produced concerning others serving in similar positions indicating that such personnel “were formally appointed” to positions as employees of BOCES. Was this sufficient to support the conclusion that Roesch served as an independent contractor rather than as a BOCES employee?

The Appellate Division ruled that it was, sustaining BOCES’ rejection of Roesch’s application. The court said that there was rational basis for this determination, noting that the BOCES’ minutes of board meetings during the relevant period established that BOCES had a pattern and practice of making formal appointments of full and part-time employees.

The court said that the minutes “were devoid of any reference to the appointment of Roesch during this period when other school psychologists were so appointed by BOCES.”

This, coupled with the lack of any [IRS payroll withholding] W-4 forms that were completed by Roesch while others were produced for school psychologists employed near the relevant time period, “provides a rational basis to support the denial of Roesch’s application for retroactive membership in TRS based on her status as an independent contractor.”

The decision is silent as to whether or not BOCES produced copies of “an employment contract” between it and Roesch or copies of IRS Forms 1099, Miscellaneous to support its position that Roesch was an independent contractor rather than an employee. Typically, an individual providing personnel services to a public entity is deemed to be a public employee unless a contract for “personnel services” is authorized under law and a contract providing for such services has actually been executed by the parties.

In another application for retroactive membership in TRS case, Storrar v Mahopac Central School District, 257 AD2d 628, [motion to appeal denied, 93 NY2d 808], that the statement of the school district’s former payroll clerk that she and Barbara Storrar, a former member of TRS, discussed “FICA [Social Security] deductions versus reenrollment” in TRS was sufficient to establish that the district had “procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join a public retirement system” in place.
NYPPL

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense
Russo v Wantagh UFSD, 259 AD2d 703

Smoky conditions prompted school officials of the Wantagh school district to evacuate students from a school building. Investigation showed the fire began in the custodians’ area of the school and was caused by cigarettes igniting waste paper in a plastic trash pail that had not been emptied.

The school board dismissed custodian Clement Russo after he was found guilty of “charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed.” Russo appealed.

The Appellate Division sustained the district’s determination, finding that it was supported by substantial evidence in the record.

Russo also protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty. The court said that “under the circumstances of this case, the termination of [Russo’s] employment was not so disproportionate to the offense as to shock one’s sense of fairness,” quoting the Pell standard in imposing a penalty [Pell v Bd. of Ed., 34 NY2D 222].
NYPPL

Employer fined after docking employee’s pay for jury duty absence
People v Rosenbach, Nassau Co. Ct. [Justice DeMaro], [Not selected for publication in the Official Reports]

From time to time a public employee is called to serve on jury duty. The attendance rules for state officers and employees [4 NYCRR 28.1.9], for example, grants employees “leave with pay without charge to leave accruals” when called upon for jury service. Other jurisdictions provide for similar benefits.

In contrast, penalizing an employee for performing his or her civic duty by reporting for jury duty can be expensive, as attorney Ann Rosenbach has learned. Rosenbach was fined $1310 for criminal contempt after she docked one and one-half weeks of pay from the salary of an attorney in her employ when the attorney was called for jury duty.*

State Assistant Attorney General Jennifer Brand, who prosecuted the case, said “this may be the first time an employer was held in criminal contempt for ‘penalizing’ an employee called to serve on jury duty.

* Lynn Weit, who worked as an attorney in Rosenbach’s law office, received a jury summons and informed Rosenbach that she would be absent from work for an expected two days to fulfill her civic obligation.
NYPPL