Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220

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Bath Volunteer Fire Department not a public agency forthe purpose of contractor's paying prevailing wages pursuant to Labor Law §220*
M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017, Court ofAppeals
The Bath Volunteer Fire Department [BVFD], a not-for-profitfire corporation under Not-for-Profit Corporation Law §1402, historicallyoperated from a building owned by the Village of Bath.

After BVFD determined that the facility was no longer adequate for its needsand the Village declined to build it a new firehouse, BVFD commissioned afeasibility study and obtained its own financing for the construction of a newfacility. Ultimately BVFD acquired land and in 2006 employed R-J Taylor GeneralContractors, Inc. (Taylor) as the general contractor to build the facility.Taylor subsequently hired a number of subcontractors to construct the variousportions of the firehouse.
Following an investigation, the Department of Labor (DOL)issued an opinion letter, concluding that the firehouse project was a publicwork subject to the prevailing wage law and ultimately an administrativehearing was held on the question of the applicability of the prevailing wagelaw to the firehouse project.**
A DOL Hearing Officer subsequently determined that the project wassubject to the prevailing wage law, concluding that the firehouse projectsatisfied both prongs of the so-called Erie County testfor prevailing wage law applicability, (see Matter of Erie County Indus. Dev.Agency v Roberts, 94 AD2d 532, affd 63 NY2d 810), holding that volunteer firecorporations such as BVFD are the "functional equivalent[s]" ofmunicipal corporations and are therefore "covered entities" underLabor Law §220.
In the alternative, the Hearing Officer said that even if avolunteer fire corporation did not generally satisfy the public entity test,the protection services agreement between BVFD and the Village of Bathsatisfied the first prong of the test and, because the Village authorized andsupported the firehouse project, and the object of the project entailedprovision of fire protection services for the community, the project satisfiedthe "public works" requirement.
The Court of Appeals disagreed with the Hearing Officer’sdetermination on both theories, holding that BVDFwas not a public agency as contemplated by the statute nor was any other publicentity a party to the 2006 contract. Accordingly, said the court, the prevailingwage law did not apply with respect to this project.
Had the Legislature intended to include volunteer firecorporations under the statute, said the court, it could easily have done so, explaining that in 2007, the Legislature expanded the statute's coverage to include contractsinvolving other types of entities [see Labor Law § 220(2)], but only when it can be shown they wereacting on behalf of the public entity, citing New York Charter School Association v Smith, 15 NY3d 403, at 410.  * N.B. The court said that “Indeed, certainvolunteer fire department contracts may fall under the prevailing wage lawbased on the 2007 “amendment language” of Labor Law §220(2) but at the time ofcontract relevant in this litigation, i.e., 2006, “the 2007 amendment of theprevailing wage law did not exist.”
** Once the subcontractors learned of the DOL'sdetermination, work on the project halted. In December 2006, BVFD agreed toindemnify Taylor and its subcontractors against any liability resulting fromtheir failure to pay the prevailing wages, and construction resumed and theproject was completed.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01017.htm

Adam Lanza's Motive? Mother In Process of Having Him Committed

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Adam Lanza Reportedly Enraged That Mother Was Seeking to Have Him Committed



Nancy Lanza

Late last week, I read that the police had a strong idea as to the motive behind the insane and heartbreaking Sandy Hook shootings committed by Adam Lanza.  Today, via the HuffPost, that possible motive was disclosed:



Adam Lanza

"From what I'vebeen told, Adam was aware of her petitioning the court for conservatorship and(her) plans to have him committed," said Joshua Flashman, 25, who grew upnot far from where the shooting took place. "Adam was apparently very upsetabout this. He thought she just wanted to send him away. From what Iunderstand, he was really, really angry. I think this could have been it, whatset him off."

The HuffPost article contained some other interesting information I had not heard before:

"Nancy Lanza reportedly volunteered with kindergartners at the school for several years. Flashman said that Adam "believed she cared more for the children than she did for him." On the day of the massacre, Nancy was Adam's first victim. Flashman told Fox News that Nancy was also good friends with the school's principal and psychologist, both of whom were killed during the incident.
Lanza had also reportedly cut off communication with his father, Peter, in 2010."

I have a few thoughts on this.

One, this motive "makes sense", and that helps me because I need to make sense out of this insanity.

Two, Nancy Lanza should have taken all of her guns out of the house if she knew her son was very angry about the possibility of being committed.  It should not have been beyond the pale of her reasoning to expect that her son might respond violently, if to no one else other than herself, if he was indeed very angry about her plans.  The fact that she apparently believed he was mentally ill to such an extent that she was willing to give up her custodial role, one that she by all accounts took very seriously, only buttresses my belief in this regard. 

Reportedly, Adam Lanza had never been violent, despite his problems, so doesn't it make sense that he was demonstrating some significant change of behavior that caused her to seek his commitment?  And, doesn't it make sense that maybe, given his habit of locking himself in a windowless room in the basement of their home playing "Call of Duty" from morning to night, that the change she saw that caused her to seek his commitment was a shift towards violent tendencies?  If so, and Nancy Lanza saw the anger of her her theretofore placid son further escalate once he learned that she was seeking to have him committed, should she not have removed her guns from their household? Isn't that what you would do?  Don't you think this idea crossed her mind, and maybe more than once?  Did Nancy Lanza's apparent "survivalist" agenda subsume any instinct she had to remove her guns from the house?  Can such "fanaticism" ever be a good and rationale thing?

What Happened to This Child...

Finally, the murderer had spoken to neither his Father nor his Brother since 2010.  For a boy to be estranged from his Father and older Brother suggests the boy may have a very deep problem, particularly where, as here, they appear to be "normal" while he was clearly not.  Meanwhile, his Mother taught this obviously troubled boy/man how to master firearms.  Say what you want, but had she, say, taught him how to master fishing, cooking, flying RC airplanes or to drive a race car, maybe this tragedy would have been avoided.


John A. Gallagher isan employment lawyer who represents employees in Pennsylvania.ClickHere if you have questions about any aspect of employment law, fromwrongful termination, to wage and overtime claims, to discrimination and retaliationlaws, to Family and Medical Leave…

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For Mother's Day

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I posted this prayer last year for Mother's Day and like it so much I decided to post it again.

Wherever you are in your mothering journey, I wish you peace on Mother's Day.

Today we bless mothers who sat up all night with sick toddlers saying, "It's OK honey, Mommy's here.

Today we bless mothers who gave birth to babies they may never see. And the mothers who took those babies forever to be their own children.

Today we bless mothers who attended ball games, recitals, rehearsals, etc. etc. and said, "I wouldn't have missed it for the world," and meant it.

Today we bless mothers who show up for work with milk stains on their blouses and diapers in their purse.

Today we bless mothers who put pinwheels, teddy bears, or flowers on children's graves.

Today we bless mothers whose children have gone astray, who haven't the words to reach them, and yet have never put them from their heart.

Today we bless new mothers stumbling through diaper changes and sleep deprivation. And today we bless mature mothers who are learning to let go.

Today we bless all mothers: working mothers, stay-at-home mothers, single mothers, and married mothers. We also bless all women in life giving and nurturing roles. We thank you. We honor you. We bless you. Amen.
- adapted from a prayer of Dan Bottorff

Banker's One Percent Tip (1%) On $133.54 Check; "Get A Real Job"

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(LAIST) In the food service industry, bad tippers sometimes live on in infamy. Entire books have been written about the plight of the waiter or waitress who gets left pennies that don't come near the standard 15-20% tip that is typical on a dining check.

One diner at a Newport Beach restaurant, however, used a recent $133.54 tab to express his disdain for his server's line of work by leaving a 1% tip and a note: "GET A REAL JOB."

According to the anonymous blogger of a just-launched site called Future Ex-Banker, his boss at a very large corporate bank hates hearing about the "99%" represented by the Occupy movement and shows his hatred by tipping a measly 1%.

To illustrate this, Future Ex-Banker posted a photo of a recent receipt from True Food Kitchen in Newport Beach showing his boss' meager tip and "advice" for a server named Breanna.

The blogger writes: "Mention the “99%” in my boss’ presence and feel his wrath. So proudly does he wear his 1% badge of honor that he tips exactly 1% every time he feels the server doesn’t sufficiently bow down to his Holiness. Oh, and he always makes sure to include a “tip” of his own."

A hostess who picked up the phone at True Food Kitchen said she had heard about the receipt, but she wouldn't say whether it was real or whether the workers remembered a customer like this.

"I am aware, but we have no statement on the issue," she said. "I'm not sure if it's a fake or not."

She did, however, confirm that the restaurant employs a waitress named Breanna, who is listed on the receipt.

Here is a pdf of the Blog from Future Ex Banker: Future Ex Banker Blog

Minnesota Waitress Sues After Police Seize $12,000 'Tip'

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Stacy Knutson, a struggling Minnesota waitress and mother of five, says she was searching for a "miracle" to help her family with financial problems.

But that "miracle" quickly came and went after police seized a $12,000 tip that was left at her table. Knutson filed a lawsuit in Clay County District Court stating that the money is rightfully hers. Police argue it is drug money.

Knutson was working at the Fryn' Pan in Moorhead, Minn., when, according to her attorney, Craig Richie, a woman left a to-go box from another restaurant on the table. Knutson followed the woman to her car to return the box to her.

"No I am good, you keep it," the woman said, according to the lawsuit.

Knutson did not know the woman and has not seen her since, Richie said. Knutson thought it was "strange" that the woman told her to keep it but she took it inside. The box felt too heavy to be leftovers, Ritchie said, so she opened it -- only to find bundles of cash wrapped in rubber bands.

"Even though I desperately needed the money as my husband and I have five children, I feel I did the right thing by calling the Moorhead Police," Knutson said in the lawsuit.

Police seized the money and originally told Knutson that if no one claimed it after 60 days, it was hers. She was later told 90 days, Richie said. When 90 days passed, Knutson was still without the $12,000.
Police told Knutson the money was being held as "drug money" and she would receive a $1,000 reward instead, the lawsuit states. Lt. Tory Jacobson of the Moorhead police said he could not disclose much information about the case because it is an ongoing investigation.

"With turning this money over to us, we initiated an investigation to determine whose money this is," Jacobson told ABC News. "The result has been a narcotics investigation."

Police argue that the money had a strong odor of marijuana and therefore falls under a law that allows for forfeiture of the money because it was in the proximity of a controlled substance, the lawsuit states. But there were no drugs in the box and Richie said he believes this law is not being used correctly.

"Because it was in contact with drugs somewhere along the line, it's somehow drug money," Richie said. "This isn't drug money."

A police dog also performed a sniff test on the money and, according to the dog's handler, discovered an odor.

Two of Knutson's co-workers, along with her son Brandon, were at the Fryn' Pan the night she discovered the money. Her co-workers say they did not smell marijuana.

"I know the smell of marijuana," Nickolas Fronning, a line cook at the Fryn' Pan, said in an affidavit. "I can also assure you that there was no smell of marijuana on the bills or coming from the box."

There was nothing suspicious in the restaurant when the money was found, co-workers said. They don't why it was given to Knutson.

"She was just in the right place at the right time," Tracy Johnson, the assistant manager at the Fryn' Pan, told ABC News.

Knutson's family has had a long financial struggle. She has been a waitress at the Fryn' Pan for 18 years.
"We do everything we can to make ends meet, but often times everything is not covered," she said in the lawsuit.

Knutson's financial woes are well-known in her church, Richie said. She believes that perhaps someone from the church gave her the money through this woman but did not want to be identified.
"Somebody knew she really needed the money and she needed to be helped," Richie said.
Jacobson says it is up to the judge to decide who the money rightfully belongs to.

"The police department doesn't have a decision on either side," Jacobson said. "She did the right thing, we credit her with that. It's certainly not the police department against her. We're actually with her."
But Richie said he firmly believes this is not drug money and it rightfully belongs to Knutson.
"The only thing that smells bad about this is that it's unfair," Richie said. "So that's why we're doing something about it."

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

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Selected reports and information published by NewYork State's Comptroller Thomas P. DiNapoliIssued during the week February 17, 2013   [Click on the caption to access the fullreport]
DiNapoli Announces $250 Million Private EquityCo–Investment Allocation for Emerging Manager Program

Comptroller Thomas P. DiNapoli announced Friday that the New York State CommonRetirement Fund (Fund) has allocated $250 million to Farol Investment Advisersfor private equity co–investments with the Fund’s emerging managers program.The announcement came as DiNapoli hosted the sixth annual emerging managerconference in Albany, New York.

Comptroller DiNapoli and A.G. SchneidermanAnnounce Felony Plea of Former Senator Shirley Huntley

Comptroller Thomas P. DiNapoli and Attorney General Eric T. SchneidermanWednesday announced that former New York Senator Shirley L. Huntley has pleadedguilty to Tampering with Physical Evidence, an E Felony, for falsifyingevidence in an effort to obstruct the investigation into the theft of a grantshe sponsored for a sham non–profit entity, the Parent Workshop.

DiNapoli: Medicaid System Flaws Led to $7.8Million in Overpayments

The Department of Health’s Medicaid program overpaid health care providers by$7.8 million over a six month period because of flaws with its eMedNY computersystem, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. Auditorsfrom the Comptroller’s Office recouped about $7.5 million of the overpaymentsand took steps to prevent future payment errors.

DiNapoli: Millions Sat Idle in MTA BankAccounts

The Metropolitan Transportation Authority (MTA) held over $90 million in fundsand bank accounts that could have been used to meet its budgeted costs,according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. Auditorsfound the MTA did a poor job managing its cash–on–hand, had excess bankaccounts and no set targets for short–term investing of billions of dollars.

DiNapoli: Executive Budget Continues SpendingRestraint in the Face of a Challenging Economy

The 2013–14 Executive Budget continues the state’s effort to move towardlong–term structural balance and reduces projected out–year budget gaps whileaddressing infrastructure needs, including the recovery from Hurricane Sandy,according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Growth of Local Sales TaxCollections Slows

Local sales tax collections in New York grew by $450 million in 2012, anincrease of only 3.3 percent from 2011, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. New York City had aslightly better growth rate of 3.5 percent.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his officecompleted the following audits:
the CortlandEnlarged Central School District; and,
the PawlingCentral School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his officecompleted the following audits:
the Villageof Huntington Bay;
the Townof Long Lake;
the Villageof Munnsville; and,
the Cityof North Tonawanda.

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

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Seniority for thepurposed of layoff held to include both a teacher's "actual full-time servicerendered" and his or her full-time regular substitute service in the tenurearea
Education Law §2510[2] provides that a school district thatabolishes a teaching position for economic reasons must discontinue "theservices of the teacher having the least seniority in the system within thetenure of the position abolished." As this decision demonstrates, anincorrect determination with respect to which teacher is “least senior” for the purposes of layoff couldprove expensive to the school district.
A teacher [Teacher] challenged the Board of Education’s determinationthat she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law andwas arbitrary and capricious. As redress, Teacher sought "senioritycredit" for certain services as a substitute teacher that she had rendered to the District,reinstatement to her former position, and "restitution" for damagesthat she allegedly sustained as a result of the School Board's determination,which, in effect, terminated her employment.
The Appellate Division annulled the Board’sdetermination with respect to Teacher’s seniority for the purposes of layoffand it was [1] directed to award seniority credit to her for her service betweenNovember 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position asa full-time probationary teacher in the foreign language tenure area with backpay and benefits.* 

The significant issue in this actionwas the criterion used in determining a teacher's seniority, i.e., the"actual full-time service rendered" including full-time regularsubstitute service in a particular tenure area prior to his or her probationaryappointment in that same area** and the rationale for equating full-timesubstitute service with full-time probationary service for seniority purposes.

The Appellate Division explained that employment as a regular substitute"constitut[es] employment by the board of education on a permanentbasis" and is "equivalent to service rendered pursuant to a probationaryappointment in contrast to an 'itinerant' or per diem substituteassigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.
The court noted that the District had argued that Teacher’sresignation severed her employment relationship with the District and that shetherefore lost all seniority accumulated prior to that time notwithstanding thefact that Teacher had agreed to "resign" in exchange for theDistrict's promise to immediately rehire her as a substitute teacher and toreappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.
Although the District was correct that a teacher whovoluntarily severs all of his or her professional relationship with a schooldistrict through retirement or resignation forfeits his or her seniority rightsunder Education Law §2510, the Appellate Division questioned whether Teacher’sresignation, under the relevant facts in this case, could be deemed to have been voluntary,noting that:
1 "Public policy" favors the protection of an employees' seniority rights;
2. Although an employee may relinquish his or her seniorityrights by resigning or retiring, such a relinquishmentmust be knowing and voluntary, i.e., the employee must take "affirmativesteps" to terminate all aspects of his or her employment by a schooldistrict and in the absence of a specific contrary intent, an employee whomerely assents to being reassigned to a different title within the same tenurearea — even under the guise of a resignation — is not deemed to have"resigned" for purposes of determining his or her seniority credit so long as the title towhich he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.
3. Neither the District nor Teacher complied with the requirementsof Education Law §3019-a ("Notice of termination of service byteachers"), which governs the formal resignation and termination ofprobationary teachers.
4. The record was devoid of any intent or affirmative act byTeacher to sever all aspects of her employment relationship with the Districtand thereby relinquish her seniority rights.
5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by eitherTeacher or the District to sever their professional relationship but instead thearrangement allowed Teacher to continue teaching in the District while herpermanent certification was pending.
6. There was no actual break in Teacher's service to theDistrict as a result of her "resignation" as the resignation waseffective at the end of the day on October 1, 2009 and the next day shereturned to the same classroom to teach the same subject to the same studentsduring the same hours.***
Accordingly, as noted earlier, the Appellate Divisionmodified Supreme Court’s ruling “on the law,” and granting Teacher’s petitionin part, annulled the District's determination, awarded Teacher seniority creditfor the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign languagetenure area, with back pay and benefits.
* N.B.The decision notes that Supreme Court held that the District was"justified in giving more seniority credit to another teacher because thatteacher had obtain … permanent certification at an earlier date.” The AppellateDivision said that "[s]eniority [for the purposes of layoff] … relatesonly to length of service" and considerations such as prior experience,training, or educational qualifications are not properly included therein.”
** Teacher’s service with the School District for thepurposed of determining her seniority within the meaning of §2510[2] of theEducation Law is set out in some detail in the Appellate Division’s decision.
*** The Appellate Divisioncharacterized Teacher’s "resignation" as essentially "a legal fictiondesigned to allow Teacher to continue her duties as a full-time Spanish teacherwhile ensuring the District's compliance with the Education Law, whichprohibits a school district from employing uncertified teachers."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00867.htm
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The Layoff, Preferred List andReinstatement Manual - a 645 page e-book reviewing the relevantlaws, rules and regulations, and selected court and administrative decisions isavailable from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ foradditional information about this electronic reference manual.
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