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Hearing Officer’s Failure to Ascertain Why a Witness Called by the Inmate Refused to Testify Required Annulment of the Disciplinary Determination

The Third Department determined the inmate-petitioner’s disciplinary determination must be annulled because the inmate was effectively denied his right to call a witness:

… [T]he determination must be annulled because petitioner was denied his right to call a witness … . After petitioner requested that his cellmate at the time of the cell search be called to testify, the Hearing Officer sent two correction officers to retrieve him; the officers returned and merely reported that the prospective witness had refused to testify because “he didn’t want to come out.” One of the officers signed a witness refusal to testify form that provided no reason for the refusal and indicated that the prospective witness had refused to sign the form. As the Hearing Officer made no attempt to verify the witness’s refusal or ascertain his reasons for refusing to testify, despite petitioner’s repeated requests, petitioner’s right to call witnesses was violated … . Matter of Figueroa v Prack, 2015 NY Slip Op 06846, 3rd Dept 9-17-15

 

Claimant, Who Worked Pursuant to a Consulting Agreement, Was Not an Employee

The Third Department determined claimant, who worked pursuant to a consulting agreement with two companies, was not an employee:

Tomen America Inc. was eliminated when Toyota negotiated to purchase assets of Tomen and acquire many of its employees. Claimant negotiated and drafted an agreement with both Tomen and Toyota whereby he served as a consultant for both companies, during set periods, to provide post-integration support in human resource matters with regard to the Tomen employees being assimilated by Toyota. As a consultant with Toyota, claimant worked three to five days a month and set his own schedule. He was not required to report to any supervisor, was not given any direction by anyone, did not submit his work for review, did not participate in regular human resource meetings and was issued an identification badge indicating that he was a contractor. Claimant submitted a monthly invoice for an agreed-upon payment, which, pursuant to the agreement drafted by claimant, withheld no taxes. Matter of Farley (Commissioner of Labor), 2015 NY Slip Op 06747, 2nd Dept. 9-3-15

 

Flight Crew Member Deemed an Employee of a Service Which Provides Flight Crews for Corporate Clients

The Third Department determined claimant, who worked for Stecher Aviation Services, which provides flight crews for corporate clients, was an employee, not an independent contractor:

Here, the record reflects that Stecher Aviation reviews and evaluates the resume of a prospective crew member and other required certifications in deciding whether to add the crew member to its database. Once accepted, the crew member must sign a contract that requires him or her to take instructions directly from the client, prohibits substituting a third party to fulfill the assignment and requires the submission of an invoice by a specified time in order to be paid for services and reimbursed for expenses. Although a crew member may reject an assignment and can work for competitors, Stecher Aviation reviews its database and selects the crew member whom it deems qualified to perform the services required by its client, and the work hours and location are determined by the needs of the client. The crew member does not negotiate the rate of pay, as such rate is already set between Stecher Aviation and the client’s flight department. Stecher Aviation handles the billing for the services provided and, after deducting its commission, pays the crew member. Additionally, Stecher Aviation finds replacements for a crew member who cancels an assignment and fields complaints about a crew member’s performance; crew members also are covered under Stecher Aviation’s workers’ compensation insurance policy. Finally, Stecher Aviation’s sole business is providing crew members for its clients. Matter of Stecher Aviation Servs., Inc. (Commissioner of Labor), 2015 NY Slip Op 06743, 2nd Dept 9-3-15

 

Claimant, Who Worked from Her Home Pursuant to a Consulting Agreement, Was an Employee, Not an Independent Contractor

The Third Department determined claimant, who worked from her whom pursuant to a consulting agreement with Source Interlink Media (SIM), was an employee entitled to unemployment insurance benefits:

“Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

Here, the consulting agreement indicates that SIM retained the services of claimant and set her hourly rate of pay. Further, claimant’s wages were reported on an IRS 1099 tax form with SIM identified as the wage payer. Although claimant generally worked from home, she was required to work at [the] office every Friday from 9:00 a.m. to 5:00 p.m. On Fridays, she was provided a work space, computer, telephone and office supplies. If claimant was going to be late or absent, she was expected to inform an executive assistant at the office. She planned annual meetings, parties and boat shows and was reimbursed for her travel expenses. Her other duties included writing press releases, but she could not distribute the releases until her supervisor had reviewed and edited them. If claimant missed a deadline to complete an assignment, her supervisor could terminate the consulting agreement. Matter of Morris (Commissioner of Labor), 2015 NY Slip Op 06741, 2nd Dept 9-3-15

 

Claimant Was an Employee of an Outfit Which Advertises for Security Guards on Craigslist

The Third Department determined claimant was an employee of Precinct, which advertises for security guards on Craigslist:

Precinct places advertisements on Craigslist seeking security guards, although we note that claimant was referred to Precinct by another security guard. Precinct interviews applicants about their experience and verifies that the applicants are licensed as security guards in New York. As to claimant, he was assigned by Precinct to a hotel. Precinct negotiated with the hotel in setting claimant’s rate of pay. Precinct billed the hotel based upon the negotiated hourly rate and paid claimant after subtracting one third of claimant’s pay as a commission. If claimant could not report to work on a certain day, he was required to inform Precinct, and claimant could not find his own replacement. Matter of Lobban (Commissioner of Labor), 2015 NY Slip Op 06746, 2nd Dept 9-3-15

 

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Fraud Does Not Require Proof of a “Nefarious Motive”—Fact that Respondent Knew that the Spouses of Three Signatories Signed the Petition on the Signatories’ Behalf Invalidated the Petition, Despite the Fact that There Were a Sufficient Number of Valid Signatures

The Third Department invalidated the designating petition because the respondent, Hammond, admitted he witnessed the signatures of the three people who were the spouses of the person purportedly signing the petition.  The petition included 38 signatures, 30 more than the eight required to receive the party designation. Hammond thought having the three spouses sign was proper. The court noted that the signatures were fraudulent, despite the absence of an intent to defraud, and Hammond’s knowledge of the fraud required invalidation:

A court will invalidate a designating petition where the challenger establishes, by clear and convincing evidence, “that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Where a candidate is involved in the fraud, the challenger need not show that the fraud permeated the entire petition …, and “the petition may be invalidated even if it contains a sufficient number of valid signatures independent of those fraudulently procured” … . * * *

Fraud … does not require proof of a “nefarious motive” … . Inasmuch as Hammond participated in the fraud, and regardless of the fact that the designating petition contained a sufficient number of signatures independent of the three signatures that were fraudulently obtained, we invalidate respondents’ designating petition and strike their names from the ballot … . Matter of Mattice v Hammond, 2015 NY Slip Op 06637, 3rd Dept 8-20-15

 

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Failure to Administer Oath to Two Signatories Invalidated Petition—When Oath Required Under the Election Law Explained

The Third Department determined that the failure to administer the oath required by the Election Law to two signatories invalidated the designating petition. The court explained when the oath is required under the Election Law, and when it is sufficient to merely witness a signature:

The Election Law provides a much simpler process for a local party member to obtain petition support for a potential candidate than for an individual of either another political party or from outside the relevant political subdivision. A local party member may obtain petition signatures and affirm with a simple statement that the signatories “subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who signed this sheet” (Election Law § 6-132 [2]). Where the petition is obtained by an individual other than a statutorily authorized local party member, however, the petition may be approved by a notary public or commissioner of deeds, but it is further required that each individual signatory be “duly sworn” (Election Law § 6-132 [3]).

Here, [respondent] was gathering signatures on multiple party lines, and at issue are three lines in which she was not a duly registered party member. At the hearing, in addition to testimony from signatories that no oath or affirmation as to the truth of their statements was elicited prior to signing the petitions, [respondent] herself clearly acknowledged in her testimony that she had neither administered an oath to any signatory on the challenged petitions, nor had she asked any of them to swear or affirm to tell the truth before signing. This is contrary to her attestation as a commissioner of deeds, which appears on the face of each sheet of the challenged designating petitions, as required pursuant to Election Law § 6-132 (3). As respondent argues, case law has established that not all of the formalities of an oath need be observed … . Nonetheless, we are constrained to find that the evidence did not support a finding of substantial compliance with the statutory requirements. Accordingly, the signatures collected by [respondent] are rendered invalid… . Matter of Mertz v Bradshaw, 2015 NY Slip Op 06639, 3rd Dept 8-20-15

 

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Failure to Meet One-Year Residency Requirement Invalidated Designating Petition

The Third Department affirmed the invalidation of petitioner’s designating petition because petitioner had not lived in the relevant district for one year, as required by the Albany County Charter. The court held the residency requirement did not violate due process:

… [B]y conceding that the address listed on his designating petition is outside the 9th Legislative District and that he did not, in fact, live in that district, petitioner failed to demonstrate that he satisfied the residency requirements and, consequently, did not meet his burden of demonstrating the validity of his designating petition … .

… [W]e find that the one-year durational residency requirement imposes a reasonable, nondiscriminatory restriction on prospective candidates and voters that is supported by a rational basis … . Matter of Scavo v Albany County Bd. of Elections, 2015 NY Slip Op 06640, 3rd Dept 8-20-15

 

Address Errors Rendered Designating Petition Invalid—Petitioner Not Entitled to “Opportunity to Ballot”

The Third Department determined that errors in indicating the correct address of signatories invalidated the designating petition, Because such errors are not deemed merely “technical” errors under the Election Law, the petitioner’s request for an “opportunity to ballot” was properly denied:

Pursuant to Election Law § 6-130, “[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed.” Strict compliance with Election Law § 6-130 is mandated, as its requirements constitute “a matter of substance and not of form”… . * * *

… [T]he discretional remedy of an opportunity to ballot should be granted “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” … . Here, we find that Supreme Court did not abuse its discretion in concluding that the opportunity to ballot remedy is not appropriate in light of the fact that the defects at issue have been held to be substantive and not technical in nature … . Matter of Canary v New York State Bd. of Elections, 2015 NY Slip Op 06638, 3rd Dept 8-20-15

 

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Fact that Notary Public Did Not Administer an Oath to the Signatories on the Designating Petition Did Not Invalidate the Petition

The Third Department determined the signatures on the candidate-designating petition were valid, despite the respondent’s, Sira’s, admission that no oath was administered to the signatories which Sira signed as a notary public. The court noted that, under the Election Law, Sira could have merely witnessed the signatures, without signing as a notary public. Because there was no evidence the signatures were fraudulent in any way, the petition was deemed valid:

“A designating petition will be invalidated if the challenger shows, by clear and convincing evidence, that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” … . Here, although Sira herself attested to 307 signatures on her designating petition as a notary public, which included an affirmation that the signatories had sworn that their statements were true, she admitted at the hearing that she had not administered an oath to the signatories or obtained a statement as to the truth of the matter to which they subscribed as required by Election Law § 6-132 (3) … . Sira concedes that those 307 signatures are therefore invalid. However, we are unconvinced that Sira’s actions amounted to fraud warranting invalidation of the entire designating petition. Notably, as a registered member of the Republican Party living in Fulton County, Sira was not required to attest to the signatures on her petition as a notary public; rather, Sira could have attested as a witness to the signatures, requiring only an affirmation that the signatories identified themselves as the individuals who signed the petition and that they signed the petition in the presence of the witness (see Election Law § 6-132 [2]). Significantly, there is no evidence that Sira did not witness the signatures she attested to or that the signatures were not authentic. Thus, in our view, it has not been established by clear and convincing evidence that, under these circumstances, invalidation of Sira’s entire designating petition is warranted on this basis… . Matter of Vincent v Sira, 2015 NY Slip Op 06636, 3rd Dept 8-20-15

 

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