Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request

Police agency's records concerning breath alcohol measurement instruments may be obtained pursuant to a Freedom of Information Law request

Law Offs. of Adam D. Perlmutter, P.C. v New York City Police Dept., 2014 NY Slip Op 08722, Appellate Division, First Department

The Law Offices of Adam D. Perlmutter, P.C., [Perlmutter] filed a Freedom of Information Law [FOIL] request seeking “all calibration and maintenance records for all Intoxilyzer machines owned or maintained by New York City Police Department [NYPD] since January 2008”.The Intoxilyzer is a breath alcohol measurement instruments manufactured by CMI, Inc.

In response to NYPD denial of Perlmutter’s FOIL demand, Perlmutter filed an Article 78 petition. Supreme Court seeking a court order annulling NYPD’s decision and an order directing the NYPD to disclose the records sought by Perlmutter.

Relying on provisions set out in Public Officers Law §87, NYPD had contended that the records "are compiled for law enforcement purposes and . . . , if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings," as such records are often requested in “Driving While Intoxicated” [DWI] cases involving Intoxilyzer test results and that thousands of such cases are pending in New York City.

The Appellate Division affirmed the lower court's ruling and rejected NYPD’s claim that the records sought by Perlmutter were exempt from disclosure pursuant to FOIL.

The court noted NYPD’s FOIL arguments are not properly before it because the exemption to FOIL was not cited by NYPD at the administrative level. However, the Appellate Division continued, “Were we to review it, we would reject [NYPD's arguments] on the merits, since the statute cited by [NYPD] does not exempt the records from disclosure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08722.htm

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

An employee's status as reported in the agency’s records control notwithstanding an error in correspondence concerning the employee’s employment status

2014 NY Slip Op 08718, Appellate Division, First Department

An individual [Officer] initiated the grievance process set out in collective bargaining agreement challenging the Metropolitan Transportation Authority Police Department’s director of labor relations' action that “purportedly terminated [Officer’s] employment as a police officer”  with Authority’s Police Department. 

When his grievance was denied, Officer demanded that his grievance be submitted to arbitration. However, before the arbitration commenced, Officer filed an Article 78 petition in Supreme Court, New York County, seeking to vacate his “purported termination” from his position.

Supreme Court denied Officer’s petition and dismissed the proceeding on the ground that Officer failed to exhaust his administrative remedies. The Appellate Division sustained the Supreme Court’s ruling.

The Appellate Division explained that the relevant collective bargaining agreement had a "Waiver of Trial Agreement" (Waiver Agreement) incorporated into the collective bargaining agreement's binding arbitration procedure as the means of determining, "in future cases of misconduct," whether Officer had committed a "serious violation" of Authority Police Department’s rules. The Police Department later determined that subsequent to the parties entering into the Waiver Agreement Officer had committed a serious violation.

The Appellate Division said that Officer failed to establish that he was actually terminated before arbitration in violation of the Waiver Agreement.

To the extent a mistake was made when a personnel order, dated August 21, 2012, was issued to all department members stating that Officer had been terminated, the mistake was corrected by the issuing of a revised order, dated April 12, 2013, to all department members stating that Officer was suspended without pay rather than terminated. 

Further, said the Appellate Division, the Department's records demonstrate that effective August 20, 2012 Officer was placed on an unpaid leave of absence.

Similarly, in the event an employee status as reflected in the agency’s records is inconsistent with records of the relevant civil service commission, the commission’s records control absent a finding that the commission’s records are in error.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08718.htm

________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html 

________________

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014

Click on text highlighted in color  to access the full report

DiNapoli: Audit Reveals Theft of Cash, Questionable Spending by Minetto Volunteer Fire Department Chief

The chief of the Minetto Volunteer Fire Company in Oswego County spent nearly $6,000 in public funds on personal purchases such as guns and motorcycle parts, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. The audit revealed a total of $22,000 in misused funds, questionable spending and missing cash.

Buffalo Business Delivers $9 Million Investment Gain to the State Pension Fund

AccuMED, a manufacturer located in Buffalo, has generated an estimated $9 million investment gain for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Tuesday. The investment was made through the Fund’s In-State Private Equity Program, which is designed to make profitable investments in New York state-based companies.

DiNapoli: New York City’s Financial Outlook Improving

New York City’s revised four-year financial plan shows substantially smaller out-year gaps than projected by the city in June 2014, mostly because of higher tax revenues and lower projected pension and debt service costs, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Former Le Roy Fire Dept. Treasurer Pleads Guilty in $46,000 Theft of Public Funds

The former treasurer of the Le Roy Fire Department and the Le Roy Fireman’s Benevolent Association pleaded guilty Tuesday to stealing nearly $46,000 in public funds, much of which he spent on gambling at upstate casinos, according to audits and an investigation by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for November 2014

State Comptroller Thomas P. DiNapoli announced Tuesday his office reviewed over 2,000 contracts valued at $2.1 billion and approved nearly 1.2 million payments worth nearly $8.9 billion in November. His office also rejected 166 contracts and related transactions valued at $348 million and more than 1,700 payments valued at more than $3.9 million due to fraud, waste or other improprieties.

.

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries

State Div. of Human Rights v Steve's Pier One, Inc., 2014 NY Slip Op 08445, Appellate Division, Second Department

In a ruling dated October 12, 2011, the Commissioner of the New York State Division of Human Rights adopted the recommendation and findings of an administrative law judge.

The administrative law judge found that the complainant was subjected to a hostile work environment because of his gender and was constructively discharged from his employment because of his gender. 

The complainant's employer, Steve's Pier One, Inc., [and others] and their respective owner, Joseph Genova, individually, were found liable for the sexual harassment. The Commissioner awarded the complainant damages in the principal sums of $3,248, plus interest at the rate of 9% per year from June 30, 2001, for back pay, and $200,000, plus interest at the rate of 9% per year from October 11, 2011, in compensatory damages for mental anguish and humiliation.

The Appellate Division sustained the Commissioner's determination and award, holding that the Commissioner's ruling was supported by substantial evidence on the record considered as a whole.

The court also held that substantial evidence also supported the Commissioner's determination that Genova, as the owner and general manager of the restaurant where the complainant was employed at the time, is individually liable for the discrimination, explaining that the amendment of the complaint to add Genova as an individual respondent after the statute of limitations had expired was not unreasonable or unfair, inasmuch as the claims against him "related back" to those asserted in the original complaint against his restaurant.

As to the award of compensatory damages in the amount of $200,000, plus interest, the Appellate Division ruled that the award was reasonably related to the wrongdoing, was supported by substantial evidence, and was comparable to other awards for similar injuries. Likewise, the court said that substantial evidence supported the Commissioner's award of back pay with interest and was appropriate.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08445.htm

Availability of the “faithless servant doctrine” to deny benefits set out in a collective bargaining agreement

Availability of the “faithless servant doctrine” to deny benefits set out in a collective bargaining agreement
Union-Endicott Cent. Sch. Dist. v Peters, 2014 NY Slip Op 08533, Appellate Division, Third Department

Joanne Peters, a teacher by the Union-Endicott Central School District, attempted to retire from her position after allegations surfaced that she had stolen District property.

This appeals is the latest in a series* and as relevant here concerns the question of Peters' being entitled  to receive retiree health insurance benefits provided for in a collective bargaining agreement under the  circumstances of her departure from employment with the District.

The District terminated Peters effective July 1, 2007 and that, as a result, she was not entitled to retiree health benefits. The Union-Edicott Teachers Association [ETA] and Peters grieved the District's determination under the CBA and demanded binding arbitration of it.

The District and the ETA stipulated that the arbitrator would first assess whether the District's determination had violated the terms of the CBA. If the arbitrator found a violation, he would then be obliged to decide whether Peters' right to retiree health insurance benefits was impacted by the "faithless servant doctrine."**

The arbitrator issued an opinion and award finding that the District had violated the terms of the CBA and that the faithless servant doctrine was inapplicable. The arbitrator went on to state that he "believe[d] the District's claims [were] better suited for a lawsuit than a grievance arbitration proceeding."

The District then moved for leave to amend their complaint to assert causes of action invoking the faithless servant doctrine, seeking to both bar Peters' receipt of retiree health insurance benefits and recover damages for the value of the benefits that she had already received [Proceeding #1] .

The District also commenced a second proceeding, Proceeding #2, seeking to vacate the arbitration award or stay its enforcement until issues regarding the applicability of the faithless servant doctrine in action No. 1 had been resolved.

Supreme Court, among other things, declined to vacate the arbitration award or prevent it from going into effect, denied leave to amend the complaint in action No. 1 and granted the ETA leave to intervene in that action. The District appeals in proceeding Nos. 1 and 2, and the District and Board appeal in action No. 1.

The Appellate Division sustained the Supreme Court's declining to vacate the arbitration award, explaining that is not warranted as "It is well established that an arbitrator's award is largely unreviewable." and “Vacatur of an arbitration award is only appropriate where 'it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.'"

The court concluded that the arbitrator “had reviewed the relevant case law, noted that the CBA was silent on the issue of whether the "faithless servant doctrine" restricted an employee's right to contractual benefits, and determined that to apply the doctrine would impermissibly "add to or alter the terms of" the CBA.” The Appellate Division said that arbitrator, “in no uncertain terms,” indicated  that he was "declin[ing] to apply" the doctrine, commented that the arbitrator's dictum that the District's arguments were 'better suited for a lawsuit than a grievance arbitration proceeding,' ... did not undermine his thoroughly explained holding that the faithless servant doctrine did not impact Peters' right to receive retiree health insurance benefits under the CBA.

The Appellate Division said it perceived no reason to vacate the arbitration award.”

As to the motion of District and the Board for leave to amend their complaint, the legal issue as to whether the faithless servant doctrine applied was placed squarely before the arbitrator and the parties to the arbitration had a full and fair opportunity to litigate it. Despite the fact that the arbitrator held the doctrine to be inapplicable, the proposed amended complaint in action No. 1 seeks to raise precisely the same issue. The court said that the faithless servant doctrine flowed from the contractual relationship between employer and employee. As the arbitrator found that CBA does not permit the doctrine to be used, there is no separate ground for its application and the District and the Board are barred by collateral estoppel from advancing an issue that was actually decided by the arbitrator.

As Supreme Court did not explicitly confirm the award, the Appellate Division modified that court's order accordingly

* Other decisions by the Appellate Division involving these parties: Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d 1236, and Matter of Union-Endicott Cent. School Dist. [Endicott Teachers' Assn.], 59 AD3d 799.

** The "faithless servant doctrine" states that an individual owing a duty of fidelity to a principal and who is faithless in the performance of his or her services is generally cannot recover his or her compensation or other consideration that would be otherwise available to that individual [See Murray v Beard, 102 NY 505].See, also, http://publicpersonnellaw.blogspot.com/2010/02/applying-faithless-servant-doctrine.html

The decision summarized above is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2014/2014_08533.htm

Determining if an individual is an employee or an independent contractor of an entity

Determining if an individual is an employee or an independent contractor of an entity

Lustgarten (New York Psychotherapy & Counseling Ctr.--Commissioner of Labor), 2014 NY Slip Op 08538, Appellate Division, Third Department

Samuel H. Lustgarten, a psychiatrist, provided services for clients of New York Psychotherapy and Counseling Center (NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions based on remuneration paid to Lustgarten and others similarly situated.

NYPCC objected, contending that Lustgartenwas an independent contractor. An Unemployment Administrative Law Judge sustained the initial determination that Lustgarten was eligible for unemployment insurance benefits, which decision was affirmed by the Unemployment Insurance Appeal Board.

NYPCC appealed the Board's determination, which ruling was sustained by the Appellate Division.

The court explained that "Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.” With respect to medical professionals, the pertinent inquiry is whether the alleged employer exercised overall control over the work performed."

In this instance the record revealed that NYPCC [1] referred the patients to Lustgartenand scheduled their initial appointments; [2] paid Lustgarten an hourly wage for the time he treated the patients and [3] billed the patients for the services provided by Lustgarten.

Further, said the court, Lustgarten was paid by NYPCC regardless of whether it was reimbursed by the patients or their health plans.

Additionally Lustgartenworked in an office provided by NYPCC on NYPCC's premises for which he only paid a nominal weekly fee of $9.87 and would generate a treatment record that is accessed by NYPCC's doctors and staff. 

Affirming the Board's determination, the Appellate Division decided that substantial evidence in the record supported the Board's determination that NYPCC retained sufficient overall control over the work performed by Lustgarten [and those similarly situated] to establish an employee-employer relationship despite other proof in the record that could support a contrary result.

To assist in determining whether an individual is an employee under the common-law rules, the IRS has identified 20 characteristics as guidelines in determining whether sufficient control is present to establish an employer-employee relationship. 

Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. In any event, all relevant factors are considered in making a determination as to the status of an individual as an employee or an independent contractor and no one factor is decisive.

The 20 factors being used by the IRS are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

The Lustgarten decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08538.htm

Determining if an individual is an employee or an independent contractor of an entity

Determining if an individual is an employee or an independent contractor of an entity

Lustgarten (New York Psychotherapy & Counseling Ctr.--Commissioner of Labor), 2014 NY Slip Op 08538, Appellate Division, Third Department

Samuel H. Lustgarten, a psychiatrist, provided services for clients of New York Psychotherapy and Counseling Center (NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions based on remuneration paid to Lustgarten and others similarly situated.

NYPCC objected, contending that Lustgartenwas an independent contractor. An Unemployment Administrative Law Judge sustained the initial determination that Lustgarten was eligible for unemployment insurance benefits, which decision was affirmed by the Unemployment Insurance Appeal Board.

NYPCC appealed the Board's determination, which ruling was sustained by the Appellate Division.

 

The court explained that "Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.” With respect to medical professionals, the pertinent inquiry is whether the alleged employer exercised overall control over the work performed."

In this instance the record revealed that NYPCC [1] referred the patients to Lustgartenand scheduled their initial appointments; [2] paid Lustgarten an hourly wage for the time he treated the patients and [3] billed the patients for the services provided by Lustgarten.

Further, said the court, Lustgarten was paid by NYPCC regardless of whether it was reimbursed by the patients or their health plans.

Additionally Lustgartenworked in an office provided by NYPCC on NYPCC's premises for which he only paid a nominal weekly fee of $9.87 and would generate a treatment record that is accessed by NYPCC's doctors and staff. 

Affirming the Board's determination, the Appellate Division decided that substantial evidence in the record supported the Board's determination that NYPCC retained sufficient overall control over the work performed by Lustgarten [and those similarly situated] to establish an employee-employer relationship despite other proof in the record that could support a contrary result.

To assist in determining whether an individual is an employee under the common-law rules, the IRS has identified 20 characteristics as guidelines in determining whether sufficient control is present to establish an employer-employee relationship. 

Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. In any event, all relevant factors are considered in making a determination as to the status of an individual as an employee or an independent contractor and no one factor is decisive.

The 20 factors being used by the IRS are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 

http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

The Lustgarten decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08538.htm