Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Source: The Internal Revenue Service 

The Internal Revenue Service [IRS] advises that the payroll tax treatment of a former government employee returning to work for the same entity may be different than it was prior to their retirement or separation. The "Online Presentation" [This presentation ] will help government employers understand how to comply with "the complicated and often misunderstood tax implications of hiring a former employee."

The presentation will address 

1. Section 218 Agreements [see below];

2. The roles the IRS, Social Security Administration and the National Conference of State Social Security Administrators have in determining the employment tax classification of a rehired annuitant;

3. Guidelines and examples on how to approach different rehired annuitant scenarios; and

4. How to seek assistance;

The presentation will be offered August 15, 2013 at 2 p.m. Eastern Time

Click here to register for this event. IRS suggests registering “as soon as possible because space is limited.”

Please send any questions you may have concerning this presentation via e-mail to the Internal Revenue Service at  te.ge.fslg.outreach@irs.gov

The following has been adopted from an IRS Section 218 Agreements and Social Security Coverage posting on the Internet

The IRS advises that a state and local government employees may be covered for social security and Medicare either by mandatory coverage, or under a Section 218 Agreement between the state and the Social Security Administration. Under some circumstances, an employee may be excluded from social security or Medicare, or both.

Sometimes, notes the IRS, employers fail to properly apply the terms of coverage to their employees. This leads to incorrect reporting, including non-reporting or erroneous coverage. Once incorrect reporting occurs it will often continue until the Social Security Administration or the IRS becomes involved; typically, during claims processing or examinations and audits.

Social security coverage can vary widely within a state or even a local area. IRS cautions public employers not to make an assumption about Section 218 coverage for an entity and whether it is in compliance with all applicable laws merely because of the status of a similar entity, either in the same or a different state.

For Section 218 coverage questions, public employers should contact its state Social Security Administrator (see www.ncsssa.org). For mandatory coverage questions, public employers should contact an IRS FSLG Specialist (see www.irs.gov/govts for a directory).

Another resource: The SSA State and Local Government Employers website at www.ssa.gov/slge.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 27, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Applauds NYSE Euronext for Joining the United Nations’ Sustainable Stock Exchanges Initiative

New York State Comptroller Thomas P. DiNapoli Wednesday commended NYSE Euronext, the parent company of the New York Stock Exchange (NYSE), for joining the United Nations Sustainable Stock Exchanges Initiative. NYSE Euronext made the announcement Wednesday at an event held at the NYSE with DiNapoli, NYSE Euronext CEO Duncan L. Niederauer and United Nations Secretary–General Ban Ki–moon.

DiNapoli: State Overpaid $7.8 Million For Hospital Admissions

The state Department of Health improperly paid hospitals $7.8 million for lengthy acute care admissions because hospitals billed Medicaid for higher levels of care than was actually delivered to patients, according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: OPWDD Overpaid Contractor $1.1 Million

The state Office for People with Developmental Disabilities (OPWDD) overpaid a contractor by more than $1.1 million because it based payments on budgeted, rather than actual expenses, according to an auditreleased Friday by New York State Comptroller Thomas P. DiNapoli. DiNapoli’s auditors raised concerns that if OPWDD continues to pay contractors based on budgeted rather than actual cost, millions of dollars in additional overpayments could be made to contractors.

DiNapoli: Economic Recovery Helps Balance New York City Budget

A strong economy, bolstered by job gains that have outpaced the nation, have helped balance the New York City Fiscal Year 2014 budget and maintained services at current levels without raising taxes, according to a reviewof the city’s financial plan released Tuesday at the annual meeting of the Financial Control Board by New York State Comptroller Thomas P. DiNapoli. DiNapoli cautioned that despite smaller out–year budget gaps, significant risks to the budget remain.

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

31 AD3d 860

The Appellate Division, Third Department, affirmed the termination of a State Trooper after the Trooper was being found guilty of making unwanted sexual advances involving two female coworkers, rejecting his contention that the appointing authority “blindly accepted” the findings and recommendation of the disciplinary hearing Board rather than undertake an independent review of the evidence.

Significantly, the court said that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted in the course of the hearing, citing Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957).

In this instance, the court commented, the Trooper failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620, 628 [1955].

The Appellate Division also ruled that charges filed against the Trooper were not time barred since the Civil Service Law provides an exception to an 18-month statute of limitations in which to commence disciplinary proceedings if the charged misconduct "would, if proved in a court of appropriate jurisdiction, constitute a crime" (Civil Service Law §75[4]).

The court determined that misconduct alleged in one charge filed against the Trooper, if proven in a court of law, would constitute the crime of gender abuse in the third degree (see Penal Law §130.55) and thus this charge fell within the statutory exception and was not time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05274.htm

Out of Title Work

Out of Title Work

Lake City Police Club v City of Oswego, 31 AD3d 1159

Noting the well-established principle that out-of-title work creates no automatic right to reclassification, the Appellate Division, citing Matter of McGuinness v New York State Off. of Ct. Admin., 61 NY2d 279, 281, held that the City of Oswego was not required to designate an employee of the Oswego County District Attorney’s office a detective notwithstanding the fact that the individual had been working out-of-title as a detective in the District Attorney’s office.

Further, the court obseved that “Civil Service Law §58(5) expressly provides, in relevant part, that it shall not apply to "the investigatory personnel of the office of the district attorney in any county.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05442.htm

Project Sunlight to give public access to database of who appears before state departments and agencies

Project Sunlight to give public access to database of who appears before state departments and agencies

Source: Office of the Governor

On July 26, 2013 Governor Andrew M. Cuomo announced the launching of the Project Sunlight database on the Internet at projectsunlight.ny.gov, a searchable database providing an in-depth view of the individuals and entities appearing before New York State government entities concerning non-legislative matters

Project Sunlight lists meetings between government officials and outside individuals, entities, and their internal or external representatives related to state procurement, rate-making, regulatory matters, agency-based judicial or quasi-judicial proceedings, and the adoption or repeal of rules and regulations.

Lobbying appearances related to passage of the budget or legislation are not covered by Project Sunlight, as they are already the subject of regulation by the Joint Commission on Public Ethics pursuant to the State’s lobbying laws. .

 A Project Sunlight Policy was developed to facilitate reporting and to clarify what is and is not reported in the database:

Meetings Included in Project Sunlight:	Meetings NOT Included in Project Sunlight:
Appearances related to state procurement	Appearances for the sole purpose of requesting information
Appearances related to rate-making	Written or telephone communications
Appearances related to regulatory matters	Appearances regarding legislation or the budget, or any intergovernmental interactions
Appearances related to agency-based judicial or quasi-judicial proceedings	Appearances that are treated as confidential pursuant to federal or state law, or which, if disclosed, could endanger the life or safety of any person.
Appearances related to adoption or repeal of rules and regulations	Participation in meetings that are open to the public (and thus already reported elsewhere)

In 2007, then Attorney General Cuomo launched a Project Sunlight initiative now known as NYOpenGovernment.com to create the state’s first-ever online database of information related to campaign finance, lobbying activity, state spending, and state contracts.

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Matter of Michelle McDougall and the Schuylerville Central School District, Decisions of the Commissioner of Education, Decision 16505

Several positions were abolished by the school board due to budget reductions. The position encumbered by Michelle McDougall, a K-6 assistant principal, was among those abolished and her name was placed on a preferred list.

Ms. McDougall subsequently applied for a vacancy the position of K-12 Director of Curriculum, Instruction and Professional Development [Director] in response to a notice of vacancy posted by the school district. When another applicant was selected for the position, Ms. McDougall appealed the board’s action, contending that “the duties of her position as a K-6 assistant principal were substantially similar to the duties of the vacant Director position and pursuant to Education Law §3013, she was entitled to be reinstated to that position.*

The Commissioner of Education dismissed Ms. McDougall’s appeal on both procedural and substantive grounds.

As to the procedural issue, the Commissioner said that Ms. McDougall failed to “join necessary parties.” A party whose rights would be adversely affected by a determination of an appeal in favor of Ms. McDougall is a necessary party and must be joined as such.

Although Ms. McDougall had named “John/Jane Doe as a person to be subsequently named” in the caption, the Commissioner said that the record indicates that at the time Ms. McDougall commenced her appeal, an individual had been appointed by the board to the Director position. As that individual’s rights would be adversely affected if there was a decision in favor of Ms. McDougall as a result of her appeal and that individual had not been named or served with this appeal, the Commissioner said that he must dismiss the appeal for failure to join necessary parties.

However, said the Commissioner, Ms. McDougall's appeal would have been dismissed on the merits had it not been necessary to dismiss it because a necessary party had not been joined.

Noting that Ms. McDougall did not dispute board’s decision to abolish her position as K-6 assistant principal, the Commissioner rejected Ms. McDougall s contention that she was entitled to be reappointed to the Director position.

The Commissioner explained that although Education Law §3013(3)(a) governs the rights of a former employee to re-employment, it provides, in pertinent part, that in the event office or position is abolished … the person filling such position at the time of its abolishment … shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ….”

Accordingly, in order for Ms. McDougall to be entitled to appointment to a vacant position from the preferred list, the vacant position must be similar to that of her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by Ms. McDougall in her former position.

Ms. McDougall has the burden of proving that a majority of the duties of the Director position are similar to those of her former position, assistant principal, K-6. Although, explained the Commissioner, the standard of what is similar is flexible and is not to be applied mechanically, the two positions must be in the same tenure area.

Ms. McDougall’s former position was in the K-6 assistant principal tenure area and the Director position is in the K-12 Director of Curriculum, Instruction and Professional Development tenure area, the Commissioner said that Ms. McDougall would have no rights under Education Law §2510(3)(a) to be appointed to the Director position if it is a different tenure area.

Ms. McDougall had the burden of establishing that the Director position is in the K-6 assistant principal tenure area. Finding that she had failed to meet her burden of establishing that the duties of the position of Director of Curriculum, Instruction and Professional Development are similar to those of a K-6 assistant principal, for purposes of Education Law §§2510(3) (a) and 3013(3) (a).

Further, the Commissioner noted that “it appears from the record that [Ms. McDougall] spent 75% of the time in her position as an assistant principal evaluating staff and disciplining students while less than 30% of the Director’s time will be spent on these functions.”

The Commissioner concluded that Ms. McDougall did not met her burden of proving that the duties of the two positions were similar within the meaning of Education Law §3013(3)(a) or that the two positions were in the same tenure area. Accordingly, the Commissioner ruled that Ms. McDougall was not entitled to appointment to the position of K-12 Director of Curriculum, Instruction and Professional Development from the preferred list.

* Civil Service Law §81 sets out the rights of employees in the classified service with respect to use of preferred lists for the purpose of reinstatement of employees laid-off from their position to the same or a similar position, or a position in a lower grade.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16505.pdf

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/for additional information about this electronic reference manual.

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