Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Source: Office of the Governor

On November 27, 2013, Jeremy Creelan, Special Counsel To The Governor and Senior Advisor on Ethics issued the following statement:

“The Republican Senate Campaign Committee has agreed to cooperate and comply with the Moreland Commission’s investigation. They join the Democratic Assembly Campaign Committee, which had previously agreed to comply. The Governor believes cooperation is by far the preferred course of action, vital to restoring the trust of the people of New York State, whose confidence was rightfully shaken after a slew of indictments in the Legislature last year.

”This cooperation belies the remaining holdouts’ theory justifying their non-compliance; namely separation of powers. If the Moreland Commission, empowered as Deputy Attorneys General, can investigate the Assembly and Senate as a whole for Election Law compliance, they can investigate individual members for the same compliance. Without a credible theory of non-compliance, the public will assume there is something to hide and that hurts everyone.”

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The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor
Mowry v DiNapoli, 2013 NY Slip Op 07794, Appellate Division, Third Department

John M. Mowry, Esq. served as the attorney for the Mexico Central School District [Mexico CSD] from 1974 until his retirement in 2002. In addition, Mr. Mowry served as the attorney for the Village of Mexico during roughly that same time frame, served as an attorney for other public entities and maintained a private law practice.

In 2010, eight years after his retirement, Mr. Mowry received a letter from the New York State and Local Employees’ Retirement System [ERS] informing him that, based upon a review of his relationship with both the school district and the Village, he had incorrectly been reported as an employee rather than as an independent contractor. Accordingly, said ERS, Mr. Mowry’s salary and credited service were being removed from his records and, as a result, his annual benefit amount had been reduced and he was responsible for certain overpayments and arrears. 

Following an administrative hearing, the Hearing Officer determined that Mr. Mowry failed to sustain his burden of proof that he was an employee of the school district or the Village and denied his application for salary and service credits. The Comptroller accepted the Hearing Officer's findings and conclusions and Mr. Mowry filed an Article 78 petition challenging the Comptroller's decision.

The Appellate Division decided that the Comptroller's determination that Mr. Mowry was not an employee of the Mexico CSD was not supported by substantial evidence, noting that, among other things:

1. The school board routinely engaged in discussions about whether to retain Mr. Mowry's services as an employee or an independent contractor and the board continually chose the former because it was more cost effective for the school district.

2. There was no written contract with Mr. Mowry and the Mexico CSD and the assistant superintendent directed him as to what work needed to be completed and when services were to be performed.

3. The assistant superintendent and school board reviewed Mr. Mowry's work for its sufficiency and the president monitored Mowry's performance and conducted annual performance evaluations.

4. Mr. Mowry was paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and he received a W-2 form annually.

5. Mr. Mowry’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" — an exempt position in the Classified Service.

6. Mr. Mowry took an oath of office annually and the school district maintained a personnel file on him.

7. Although Mr. Mowry “did not have set hours,” the assistant superintendent testified that he was available on an as-needed basis and, even if he did not perform work for the school district during a pay period, he would receive a paycheck for that pay period nonetheless.

In contrast, said the court, ERS relied on the testimony of the school district treasurer, who testified that she had no knowledge about how Mr. Mowry received work assignments, the nature of his work duties or his relationship with either the school board or the superintendent, or whether he was ever evaluated. Thus, said the Appellate Division, it could not conclude that the Comptroller's determination with respect to the school district was supported by substantial evidence.

The Appellate Division, however, reach a different result with respect to Mr. Mowry’s employment by the Village of Mexico. The court noted that Mr. Mowry admitted that he served in the capacity of Village Attorney as an independent contractor prior to 1994 and that he was thereafter placed on the payroll pursuant to his request for the sole purpose of accruing retirement benefits. Further, the Village clerk treasurer testified that there was no reason for the change in status other than Mr. Mowry's request and that, other than the fact that his pay was reported to the Retirement System, there was no substantive change in his relationship to the Village.

The court explained that the label assigned by the parties to the employment relationship between them is not determinative of whether an employer-employee relationship or independent contractor status exists. In this instance the Appellate Division said that there was substantial evidence to support the Comptroller's determination that Mr. Mowry was an independent contractor and not an employee of the Village.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07794.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of   the Town of Almond; the Town of Big Flats; the Town of Conesus; the Town of Ellenburg; the Town of Ellicott; the Essex County; the Town of Laurens; the Town of Lincoln; the Town of Minetto; the Town of Mount Pleasant; the Town of New Baltimore; the Rush Fire District; the Town of Stanford; the Town of Wawarsing; and  the Village of Woodridge. DiNapoli: State Agency Overtime Tops $462M; Could Hit Record $600M by Year End State agencies spent more than $462 million on overtime in the first nine months of 2013, a jump of $65 million over the same period in 2012, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli Shareholder Resolution Calls on AT&T to Disclose Surveillance Requests The $160.7 billion New York State Common Retirement Fund has filed a shareholder resolution at AT&T Inc. asking the company to disclose how often and what consumer information it has shared with U.S. or foreign governments, New York State Comptroller Thomas P. DiNapoli announced Wednesday. The resolution will be voted on at the company’s 2014 annual meeting scheduled for late April. New York State Common Retirement Fund’s Marjorie Tsang Named Woman of the Year Marjorie Tsang, director of strategic research and solutions for the New York State Common Retirement Fund, received the Woman of the Year Award from New York Women Executives in Real Estate (WX). The award was presented at WX’s annual gala on Thursday night following an introduction by New York State Comptroller Thomas P. DiNapoli. DiNapoli: Audit Reveals Fiscal Stress in City of Fulton The city of Fulton has spent down its rainy day funds to dangerously low levels, leaving city officials little cushion to manage unforeseen expenses, according to an audit released Friday by State Comptroller Thomas P DiNapoli. Earlier this year, DiNapoli’s fiscal stress monitoring system identified the city as one of nine communities in “moderate stress.” NYS Common Retirement Fund Announces Second Quarter Results The New York State Common Retirement Fund’s estimated rate of return for the second quarter ending September 30, 2013 was 4.61 percent, increasing the Fund’s value to an estimated $160.4 billion, according to New York State Comptroller Thomas P. DiNapoli. DiNapoli: Tax Collections Slightly Above Projections Tax collections increased $2.7 billion, or 7.6 percent, to $38.6 billion through Oct. 31 compared to the same period last year, but total receipts were $133.6 million below the Division of the Budget’s most recent projections, according to the October cash reportreleased Friday by New York State Comptroller Thomas P. DiNapoli.

New York State Department of Labor regulations concerning unemployment insurance applications amended

New York State Department of Labor regulations concerning unemployment insurance applications amended

Source: Sharon Berlin, Esq., Chair, Employment Relations Committee, NYSBA Municipal Law Section

Ms. Berlin advises that the New York State Department of Labor has amended its regulations addressing processing unemployment applications, 12 NYCRR 472.12.

Section 472.12, among other things, sets out:

1. The deadline for an employer to respond to a DOL request for employee information (which now may be shorter than 10 calendar days);

2. The methods by which the DOL can communicate requests for information (which include letter, electronic communication, fax, the State Information Data Exchange System (SIDES), mail, private delivery service, phone or any other DOL approved method);

3. New criteria regarding the adequacy of the contents of an employer’s response; and

4. Sets out potential consequences of an untimely or inadequate response, which include that the employer’s account may be charged for an overpayment even for the first untimely response unless the employer provides good cause for the failure. The DOL is given the authority to relieve an employer of charges that are the result of a DOL error or a disaster emergency as declared by the Governor.

Ms. Berlin notes that the employer’s response will be deemed received by the DOL on the date indicated by the date stamp on an incoming document.

Ms. Berlin, a partner at Lamb and Barnosky, LLP, may be reached via e-mail at: snb@lambbarnosky.com
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