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Attorney determined to be an independent contractor and not an employee of the agency

Attorney determined to be an independent contractor and not an employee of the agency
Source: Press release ? Office of the State Comptroller

The Olympic Regional Development Authority incorrectly reported its general counsel, John Cansdale, as an employee to the New York State and Local Retirement System when Cansdale actually was serving as an independent contractor, according to an audit released on December 22, 2008 by State Comptroller Thomas P. DiNapoli.

The audit, which covers the period April 2005 to February 2008, found that the Authority incorrectly reported Cansdale as a full-time employee when Cansdale was actually serving in the capacity of an independent contractor and while he was simultaneously employed full-time by the State?s Racing and Wagering Board.**

As a result of the audit, the Retirement System has initiated action to rescind Cansdale?s salary credit that was reported by the Authority to the Retirement System. The State Comptroller?s office is conducting a second audit to determine the accuracy of Cansdale?s time and attendance records at the Racing and Wagering Board.

DiNapoli observed that ?Independent contractors who provide services to state entities are no different than independent contractors who provide services to school districts and in both cases, they are not entitled to state pensions.? DiNapoli found that Cansdale did not have permanent office space at the Authority and performed most of his work for the Authority at his office at the Racing and Wagering Board. In addition, it was determined that Cansdale did not work set hours for the Authority and the Authority did not control how Cansdale performed his duties.

The audit also noted that if the relationship between the Authority and its general counsel continues as it was at the time of the audit, the Authority should seek competitive bids for the services.

The audit also found that the Authority did not properly enroll two full-time employees and one part-time employee in the Retirement System.

DiNapoli?s office recommends that Authority officials [1] discontinue reporting its general counsel to the Retirement System; [2] recover employer contributions to the Retirement System made on behalf of Cansdale; [3] enroll the two full-time employees in the Retirement System; and [4] determine if the part-time employee wish to enroll in the Retirement System.

The Authority?s response is included in the audit. To view the audit, visit:

http://osc.state.ny.us/audits/allaudits/093009/08s60.pdf

The Retirement System has now revoked membership or retirement service credit for 46 individuals as a result of the various audits being conducted by the State Comptroller?s office concerning legal services provided to political subdivisions of the State.

** There are a number of employment situations in which an individual may lawfully receive pay checks from two different public entities simultaneously. The most common involve an employee holding a joint appointment -- a single individual is employed in a single position funded by two different appointing authorities or extra service employment -- an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division considered such "wearing two hats at the same time" in Holbrook v Rockland Co, 260 A.D.2d 437, and Nemani v United Health Services, Inc., 170 AD2d 782.

Full post as published by New York Public Personnel Law on December 23, 2008 (boomark / email).