Nassau Educational Chapter of the Civil Service Employees Ass'n v. Great Neck Union Free School District

In a proceeding pursuant to CPLR article 78, inter alia, to compel the Great Neck Union Free School District to reinstate the individual petitioners to their positions, the appeal is from a judgment of the Supreme Court, Nassau County (Lockman, J.), entered July 1, 1980, which, after a nonjury trial, inter alia, granted the petition and ordered the reinstatement of the individual petitioners, with back pay. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed on the merits. The individual petitioners, former security guards employed by the Great Neck Union Free School District, bring this proceeding challenging the abolishment of their civil service positions and the contract entered into between the district and Star Security Systems which provides for security services formerly supplied by the individual petitioners, as being in violation of section 6 of article V of the New York State Constitution. That section provides, in pertinent part, that “[a]ppointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”. After a nonjury trial on the issue of whether the district controlled Star’s employees so as to amount to an employer-employee relationship between the district and Star’s employees in violation of the State Constitution, Special Term granted the petition and directed that the individual petitioners be reinstated, with back pay. We reverse. The Constitution does not require that all governmental services be supplied by civil service employees, and contracts with private contractors have been permitted when they were legitimate attempts to have service provided in a more cost-efficient manner (see Matter of Corwin v Farrell, 303 NY 61, 66, 68; Matter of Conlin v Aiello, 64 AD2d 921, 922, affd 49 NY2d 713; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, 58 AD2d 869, 870, affd 44 NY2d 985). Where the private contracting party’s employees are not independent of the government but are controlled and supervised by government officials, the contract will be struck down (see Matter of Turel v Delaney, 285 NY 16; cf. Matter of Conlin v Aiello, supra, p 922; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, supra, p 870). For example, in Matter of Turel v Delaney (supra), a contract between the then New York City Board of Transportation and a private physician for medical services for the board’s employees was struck down as being in violation of section 6 of article V of the State Constitution, *734where the contract provided for board approval of all those hired by the contractor and set the rate of compensation to be paid by the board for each of the contractor’s employees. In other cases, contracts similar to the one at bar have been upheld even though provisions of the contract or bid specifications included clauses requiring minimum compensation for the contractor’s employees, permitting the government to make reasonable directions or requests incidental to the performance of the contract, detailing the tasks to be performed by the contractor, permitting the government to issue rules and regulations governing the manner of performance and conduct of the contractor’s employees, specifying the general time periods the contractor’s services are required to facilitate a proper bid, and requiring the use of an affirmative action hiring policy (see Matter of Corwin v Farrell, 303 NY 61, supra; Matter of Conlin v Aiello, 64 AD2d 921, affd 49 NY2d 713, supra; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, 58 AD2d 869, affd 44 NY2d 985, supra). The above provisions did not amount to control of the contractor’s employees. In this case, the district did not control the hiring of, and salaries for, Star employees as was the situation in Matter of Turel v Delaney (285 NY 16, supra). Although Special Term concluded that its findings of fact amount to proof of control over Star employees by the district’s employees, an analysis of the facts leads us to the opposite conclusion. Star employees reported to the district security office (manned by district security personnel) at the beginning and end of their tours of duty. This procedure permitted the district’s employees to verify the pay vouchers submitted by Star to the district by recording the times Star employees were on duty (cf. Matter of Conlin v Aiello, 64 AD2d 921, 923, supra). Star employees punched Star’s time clock and received their assignments from a Star supervisor. Star supplied its employees with some equipment (e.g., uniforms) and the employees used other equipment the district had left over from its own security force as a matter of convenience and economy for both parties (e.g., vehicles and beepers). The fact that Star employees inform the district’s security personnel when they go on a meal break does not amount to control. Permission is not requested by the Star employees and is not granted by the district’s employees. It is a reasonable regulation governing the manner of performance so that the district employee who is manning the district’s alarm system knows whether a Star security guard is available to investigate a potential problem (see Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, 58 AD2d 869, 871, supra). Requests, rather than orders, from district security personnel to star employees to investigate and report on alarms received by the district’s security system, to deliver district mail or to assist a district employee in directing traffic on school days, are reasonable requests incidental to the performance of the contract (see Matter of Westchester County Civ. Serv. Employees Assn. v Cimino, supra, p 870). The district’s security office houses an elaborate alarm system connected to all of the district’s buildings and manned by district employees. Informing Star employees when an alarm is received enables Star to perform its security function. Finally, Star employees were required to call into the district’s security office if they could not come to work. This system was set up by Star’s branch manager, who appointed a Star employee as an on-site supervisor. District security employees merely relay the message to the Star supervisor who provides for a replacement. Under all of these circumstances, we conclude that the district’s relationship with Star employees does not amount to an employer-employee relationship so as to violate section 6 of article V of the State Constitution. Cohalan, Hargett and Thompson, JJ., concur.