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Thursday, January 29, 2009

The Bookkeeper...Part 5

Getting back to Attorney Sciotti's Opinion Letter that, by the way, never even cited case law to back up his opinions; highly unusual according to attorneys we spoke to.

In Attorney Sciotti's Opinion Letter, regarding the Administrative Exemption, he says:

Under the NYSLL a bona fide administrative employee means an employee (1) whose primary duty consists of the performance of office or non-manual field work directly related to management policies or general operations of such individual's employer; (2) who customarily and regularly exercises discretion and independent judgment; and (3) who regularly and directly assists an employer, or an employee employed in a bona fide executive or administrative capacity (e.g., employment as an administrative assistant); or who performs, under only general supervision, work along specialized or technical lines requiring special training, experience or knowledge.

This is the closet possibility, but it is clear from the interview that Ms. Fairbrother does not regularly exercise discretion and independent judgment. All overtime exemptions must be proved by the employer and all exemptions shall be narrowly construed against the employer.

Therefore, I do not believe that this exemption can be justified.

We did some searching of town board minutes. At the January 18, 2006 Town Board Meeting, shortly after Earle Reed became Town Supervisor, we found Resolution 35 of 2006 giving Ms. Fairbrother the authorization to exercise the powers below:

· Supervisor or Bookkeeper – open any deposit or share account(s) in the name of the Town of New Hartford

· Supervisor or Bookkeeper – endorse checks and orders for the payment of money or otherwise withdraw or transfer funds on deposit with Adirondack Bank

· Supervisor or Bookkeeper – borrow money on behalf and in the name of the Town, sign, execute and deliver promissory notes or other evidences of indebtedness

· Supervisor or Bookkeeper – endorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading, stocks, bonds, real estate or other property now owned or hereafter owned or acquired by the town as security for sums borrowed, and to discount the same, unconditionally guarantee payment of all bills received, negotiated or discounted and to waive demand, presentment, protest, notice of protest and notice of non-payment

And then there is Resolution 36 of 2006 (on same page as the link to Resolution 35) that states "...does further confirm that the current Town Supervisor and/or the Bookkeeper are authorized to":

. to operate all current and future accounts opened under the new Signature Card

. to operate each account, including authority to sign checks and other items

. to give Bank of American other instructions to withdraw funds, to endorse and deposit checks and other items that are payable or that belong to the Town

. to transact other business relating to each account.

While these particular minutes are relating to accounts at Adirondack Bank and Bank of America, these are the same authorizations given to Ms. Fairbrother for other banks during the previous administration; as in this example. No where in the minutes did we find a resolution to rescind, annul, amend or repeal any of the Resolutions giving Ms. Fairbrother this authority at any of the banks where town funds are deposited.

So is Attorney Sciotti saying that the kind of authority given to Ms. Fairbrother is not Administrative under NYS Labor Law? Not that the Labor Law applies in this instance because under Resolution 200 of 1999, Ms. Fairbrother comes under the Civil Service Law in the EXEMPT classification.

What research did Attorney Sciotti do before rendering his opinion? He didn't seem to know that she was an EXEMPT Civil Service Employee who does not come under the NYS Labor Law or the Federal Labor Law and didn't seem to realize the scope of her responsibilities...did he merely depend on what he was told by Ms. Fairbrother and Supervisor Reed?

Next, we FOILed Ms. Fairbrother's timesheets. We were flabbergasted by what we found and we will tell you why Ms. Fairbrother's job took more than 40 hours per week according to her records.

We will share some of Ms. Fairbrother's timesheets in our next blog. Stay tuned...

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