Erwin v. Regan

¶1We respectfully dissent. The record demonstrates that petitioner was “employed” by the town pursuant to section 20 (subd 2, par [b]) of the Town Law and paid varying sums for legal services rendered by him over the years in dispute. The Comptroller’s conclusion that petitioner was an independent contractor and not an employee of the town ■lacks a rational basis and is not supported by substantial evidence on this record. Petitioner was designated as the Town Attorney for the Town of Geneseo by legislative acts of its town board. The first such designation was by a resolution adopted January 7,1955. Several other similar appointing resolutions followed on January 13,1956, January 9,1958, and January 12,1961. As the designated town attorney, petitioner was responsible for all the legal work of the town on a continuing, on-going basis. He worked under the supervision and control of the town board insofar as the work of a lawyer as a professinal person permits. In performing his legal work, the town board gave him directions concerning the details of contracts and easements which he prepared for the town. The board also instructed petitioner as to the contents of ordinances affecting zoning, bingo, junk yards and trailers. As part of his regular duties as town attorney, he was available for consultation with the board, the town clerk and the town superintendent of highways, and advised them about legal matters incidental to their work as requested. While it is true that petitioner was paid on a lump-sum basis for his work each year, it is significant that respondent has specifically approved the use of the lump-sum method of payment upon submission of vouchers in an opinion rendered in *7551980 when respondent ruled that such procedure in and of itself did not make employees independent contractors (Opns St Comp, 1980, p 792). In reaching his determination in this case, it appears that the Comptroller has placed excessive emphasis on the lump-sum method of payment to the exclusion of other persuasive evidence that petitioner was an employee of the town for retirement system purposes and is, therefore, entitled to be credited with membership in the system during the years in dispute (see Matter of Barnett v Levitt, 66 AD2d 980, 980-981). Further evidence of petitioner’s status is found in the affidavit of William P. Wadsworth, who was a member of the town board during the years in question. He stated that petitioner filled the position of town attorney as an employee of the town from 1952 to 1962, that he worked pursuant to instructions from the town board and worked upon such legal matters as he was directed. This record conclusively demonstrates that petitioner’s employment status with the Town of Geneseo was that of an employee and not an independent contractor (see Matter of Morton, 284 NY 167). The town board exercised the necessary degree of direction and control over petitioner in the performance of his legal work to meet the test established in Matter of Morton (supra, p 172). The determination should be annulled.