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

Lazer, J. P.,

dissents and votes to affirm the judgment, with the following memorandum, in which Rabin, J., concurs: The issue here is the legitimacy of *735the Great Neck school district’s effort to replace civil service personnel by employees of a private agency which contracted to provide security services for the district. In this article 78 proceeding, the discharged employees and their union assert that the district’s action violates the civil service provision of the State Constitution (NY Const, art V, § 6) because the arrangement with the private agency masks an illegal scheme under which the new security guards remain under the direct control and supervision of the district. In determining whether the relationship with those who provide work or services is that of employer-employee or employer-independent contractor, the crucial test is whether the contracting party’s employees are controlled and supervised by government officials (Matter of Corwin v Farrell, 303 NY 61; Matter ofConlin v Aiello, 64 AD2d 921, affd 49 NY2d 713; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, 58 AD2d 869, affd 44 NY2d 985). While the cited cases indicate that the factors to be considered include the authority to hire, fire, discipline and pay the employees and their Social Security and other taxes, the ultimate emphasis is upon the degree of control exercised by the governmental authority over the contractor’s personnel (see Matter of Corwin v Farrell, supra; Matter ofConlin v Aiello, supra; Matter of Westchester County Civ. Serv. Employees Assn, v Cimino, supra). I find all of the cases cited by my colleagues of the majority to be distinguishable on their facts from the case before us now. In Corwin, the governmental authority merely contracted for a finished product, title examinations, and no employer-employee relationship existed with the title examiners. The factors which sustained the contractual scheme in Matter of Westchester County Civ. Serv. Employees Assn, included security guards who did not provide their services exclusively to the county, day-to-day control over the guards exerted by the contractor’s supervisors, and the contractor who provided all required materials and equipment. In Conlin, the contractor supplied its own supervision and the board of education did not fix the hours of employment or control the terms and conditions of employment. The distinction between the employee-employer and the employer-independent contractor relationship has been said to be “the difference between one who undertakes to achieve an agreed result and to accept the directions of his employer as to the manner in which the result shall be accomplished, and one who agrees to achieve a certain result but is not subject to the orders of the employer as to the means which are used” (Matter of Morton, 284 NY 167, 172). To determine whether the degree of control and direction is such that the contractor’s employees are de facto employees of the district, all aspects of the contracting arrangement must be scrutinized (see Matter of Villa Maria Inst, of Music [Ross], 54 NY2d 691,692). Mere examination of the agreement between the parties will not suffice (Matter of Morton, supra, p 175; Matter of Klein v Sunrise Bldg. Co., 7 AD2d 805), for it is necessary to look behind the terms of the contract to determine the actual relationship (see Matter of Lloyd [Sans Souci Realty Corp. — Catherwood], 32 AD2d 602). The facts thus become pivotal. Prior to October 15, 1978, the district maintained security by employing civil service personnel as guards. The guards provided round-the-clock coverage and were assisted on weekends and during special events by other part-time employees of the district. Supervisory authority over the guards was vested in three district employees who bore the title of Chief, Captain and Lieutenant. These officers assigned the shifts and posts of duty, checked the guards’ uniforms, issued equipment, occasionally conducted field inspections and — perhaps most significantly — monitored the district’s alarm systems and directed the guards to areas where alarms had signaled intrusion. The alarm system was electronic; in addition to the wiring of all buildings and windows, there also were audio devices which relayed the sound of any noises heard inside the building. The job of security *736guard consisted of patrolling 16 district buildings in district vehicles, telephoning the security office from each building, and filing a daily report listing activities performed. If an alarm registered during a guard’s patrol, he would investigate it in accordance with the directions of the monitoring officer who contacted him. The guards also directed traffic one hour each school day and occasionally delivered documents or transported people. Under the contract between the district and Star Security Systems, Inc., the entire scheme remained largely unaltered. The district retained the former Chief and Captain in the same posts (discharging only the Lieutenant) and the duties of the new guards were essentially identical to those of the fired district employees. The number of guards on each shift and the time and location of each patrol continued to be determined by the district officers, although Star assigned a specific guard to fill these predetermined posts. At the beginning and end of each shift, the guards reported to the district officers. If a guard did not seem fit for duty, the officer could refuse to assign him. As before, the guards patrolled the buildings, submitted reports to the Chief, directed traffic and delivered documents when required. The district continued to furnish radio cars, beepers and firefighting equipment, with Star furnishing uniforms which were nearly identical to the ones furnished by the district. Violation of a district officer’s instructions subject the guards to discipline by Star. Star billed the district for the hours worked by the guards, but the accuracy of the bills was verified by utilization of the district officer’s records. Star’s pretence of supervision of the guards terminated shortly after it commenced performance of the contract. At the outset, calls involving the guards’ performance, absences and other problems were made to Star’s branch manager at home. Since such calls at late hours disturbed the manager’s repose, this practice was discontinued and one of the guards patrolling a post was designated as an on-site supervisor. This “supervisor” was present during only one of three shifts and performed the usual functions of a security guard. He had no real supervisory authority and became merely a conduit for messages between the district officers and Star. As has been noted, whether the civil service mandate of the State Constitution is violated by a private contracting scheme turns on whether the contractor’s employees are controlled and supervised by public officials (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). On this record, it is apparent that the district controls the work and that it is performed in the manner directed by the district (see Matter of Morton, 284 NY 167, 172-173, supra)'. Star does not exercise discretion as to the mode, manner and details of the work (see Matter of Cool [Ross], 57 AD2d 450, affd 44 NY2d 750) nor does it provide any bona fide supervision for the job. The district furnishes almost all of the required equipment (see, e.g., Matter of Glielmi v Nether land Dairy Go., 254 NY 60; Matter of Green v Ferguson, 43 AD2d 1006); compensation is computed based on the time during which the guards work at the district (see Matter of Peck v Tassell & Fairbanks, 193 App Div 604; Matter ofGrigoli v Nito, 11 AD2d 581; see, also, Restatement, Agency 2d, § 220); and they do not seem to work at any other job (cf. Peer v Babcock, 230 NY 106; Matter ofBreault v Central N. Y. Insulating Co., 282 App Div 904). Finally, the district can fire employees — if Star refuses to do so — by terminating the contract upon 30 days’ notice to the contractor (see Matter of Electrolux Corp., 288 NY 440; cf. Matter of Conlin v Aiello, 64 AD2d 921, affd 49 NY2d 713, supra). I cannot agree with my colleagues in the majority that direct supervision of the investigation of alarms and of traffic is merely incidental to Star’s perfortnance of its contract (cf. Matter of Westchester County Civ. Serv. Employees Assn. v Cimino, 58 AD2d 869, affd 44 NY2d 985, supra). Nor is the fact that *737the guards are not more closely supervised during their patrols important since the nature of the work prevents closer supervision (see, e.g., Matter of Friend [Audits & Surveys Co. — Ross], 64 AD2d 800). To me, it is an inescapable conclusion that the Chief and Captain were maintained in their positions, not merely to furnish a liaison with the contractor, but to provide supervision, direction and control of the work, as they did before. It follows, then, that the arrangement was created to circumvent civil service requirements and to mask the district’s employment of noncivil service personnel to defeat those requirements (see Matter of Corwin v Farrell, 303 NY 61, supra). Accordingly, I vote to affirm.