Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement

Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement
Source: Office of the State Comptroller

The former bookkeeper for the Towns of Kinderhook and Greenport has pleaded guilty to all charges related to her theft of approximately $300,000 in public funds following an investigation by State Comptroller Thomas P. DiNapoli's office, the New York State Police and Columbia County District Attorney Beth Cozzolino.

Additional information concerning the investigation and prosecution of the bookkeeper is posted on the Internet at: http://www.osc.state.ny.us/press/releases/mar11/030111.htm
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Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent

Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent
Matter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2011 NY Slip Op 01550, Appellate Division, Third Department

A school district employee, Eric Fetterly, was absent from his employment for 11 months after suffering a work-related injury.

When Fetterly returned to work, the School District told him that it had paid health insurance premiums on his behalf during his absence in error and asked for reimbursement. Ultimately the matter was submitted arbitration where the threshold issue was whether the health insurance dispute was arbitrable under the collective bargaining agreement.

When arbitrator ruled that the matter was, indeed, subject to arbitration, the School District appealed seeking a court order vacating the arbitrator’s determination. Supreme Court granted the District’s petition on the ground that it exceeded a specific, enumerated limitation on the arbitrator's power and the Employees’ Association appealed.

The Appellate Division said that “The threshold question of arbitrability is ordinarily a judicial determination, unless the agreement "'clearly and unmistakably'" provides otherwise,” citing Shearson v Sacharow, 91 NY2d 39.

The arbitration provision at issue, said the court, is limited and its “restrictive language cannot be read to manifest a clear and unmistakable intent to permit the arbitrator to enlarge the scope of arbitration in the guise of interpretation.” As the CBA explicitly forbids the arbitrator from "supplement[ing], enlarg[ing], diminish[ing], or alter[ing] the scope of [its] meaning," the Appellate Division said that “in order to determine whether the arbitrator exceeded his power in interpreting the exclusionary language, this Court must exercise its threshold responsibility to determine independently whether the dispute is arbitrable.”

Finding that the collective bargaining agreement provided that “not all grievances are arbitrable, prohibits the arbitrator from addressing issues outside his or her authority or enlarging the scope of the CBA, and specifically excludes "the subject of health insurance" from arbitration, the Appellate Division concluded that “it is evident that the parties did not intend to arbitrate this dispute” and affirmed Supreme Court’s ruling vacating the arbitrator’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01550.htm
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Professional consultants are employees and not independent contractors

Professional consultants are employees and not independent contractors
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Wells v. Commissioner of Labor, 77 AD3d 993, is an interesting unemployment case. Applying the right to control test, the court held that professional consultants were employees, reasoning:

Initially, we note that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Brevis Music Inc. [Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712 [2008]). Where professionals are involved, the relevant inquiry is "whether the purported employer retains overall control of important aspects of the services performed" (Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736;Matter of Parisi [Commissioner of Labor], 54 AD3d 456, 457 [2008]).

In the instant case, it was established that claimant contacted Madison after hearing about the position from another consultant and that Madison conducted an interview to ascertain if claimant was suited for the job. Madison, in turn, sent claimant a written contract setting his compensation at $350 per day and referred him to the client who performed a background check, provided training and directed his daily work activities.

Under the terms of the contract, claimant was precluded from otherwise working for Madison's client companies or partners during the term of the assignment and for one year thereafter, was subject to client confidentiality agreements and was entitled to reimbursement of certain business expenses. In order to obtain payment, claimant was required to complete a time sheet provided by Madison to be submitted at times it directed. In addition, although Madison did not provide formal training, it supplied claimant with informational booklets on its clients' policies and procedures, had a representative conduct site visits to periodically meet with the consultants and responded to client complaints about consultants' work.

This Court has acknowledged that "'an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'" (Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 [2007], quoting Matter of Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; see Matter of Atelek [Head Hunters Hair Design — Commissioner of Labor], 278 AD2d 560, 560 [2000]). The record reveals that Madison did more than this, as indicated by its interaction with the consultants, responsibility for their work and the terms of the written contract. The fact that the contract was entitled an "Independent Consultant Agreement" is not dispositive (see Matter of Kaplan [Tupperware Distrib. — Commissioner of Labor], 257 AD2d 951, 952 [1999], lv dismissed 93 NY2d 920 [1999]).

Accordingly, as substantial evidence supports the Board's decisions, we decline to disturb them, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of DeSantis [Commissioner of Labor], 54 AD3d 1103, 1104-1105 [2008]).

Mitchell H. Rubinstein

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action
Matter of Van Osten v Horn, 37 AD3d 317

The Commissioner of the New York City Department of Corrections terminated correction officer Michele Van Osten’s employment after finding her guilty of disciplinary charges that her absences from work were excessive and inadequately explained, and that she was unable to perform the full range of her duties as a corrections officer.

One of the arguments advanced by Van Osten was that the Department could not bring formal disciplinary proceedings against her because it had not earlier provided her with the “informal, non-punitive mechanism adopted by [the] Department to address certain employee misconduct.”

The Appellate Division ruled that fact that such an informal, non-punitive mechanism had been adopted by Department [sometimes referred to as "progresssive discipline"] and could be utilized by the Department at its discretion did not limit its prerogative to initiate formal disciplinary proceedings against an employee pursuant to the Civil Service Law without first using its informal procedure.

As to the penalty imposed, termination, the court said that “Under the circumstances, termination is not a sanction shocking to our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/discipline-not-barred-by-availability.html


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