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QCountp of ~aratoga

Board of Supervisors
40 MCMASTER STREET
BALLSTON SPA, NEW YORK 12020
PRESTON ALLEN, SR. Phone: (518) 885-2240 PAMELA WRIGHT
Chairman Fax: (518) 884--4771 Clerk

MEMORANDUM

DATE: August 7, 2020

TO: Board of Supervisors

FROM: Preston Allen, Sr.


Chairman of the Board

SUBJECT: External Investigation Report

Enclosed you will find the external investigation report completed by Jones Hacker Murphy,
LLP. As is stated in this report, it is a privileged and confidential document.

"This report is intended as a confidential communication between our firm and the Board
of Supervisors as our client, imparting legal advice concerning matters addressed below.
To maintain the privilege, we urge that all individual Board members receiving this report keep
it strictly confidential as anyone outside of the Board (except for the County attorney), unless
and until such time as the full Board elects to waive the attorney-client privilege as a body."

Thank you.

www.saratogacountyn y. gov
PRIVILEGED AND CONFIDENTIAL- ATTORNEY-CLIENT COMMUNICATION

MEMORANDUM

TO: Stephen M. Dorsey, Esq.


Saratoga County Attorney

FROM: James E. Hacker, Esq. and Benjamin F. Neidl, Esq.

RE: Confidential Report of Investigation: Increased Compensation for Physically-


Present Workers and Action by Covid-19 Oversight Group.

DATE: August 6, 2020

Please accept this memorandum as our confidential report of investigation in the above-

referenced matter. This is an attorney-client privileged document.

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION


Contents

I. Executive Summary·-----------------------------------------------------------------------------------------------------1

II. Method of Investigation............................................................................................... 4

III. Confidential Fact Gathering Pertinent to Legal Advice Below............................ .?

A. Friday, March 6 through Friday, March 14..................................................... .7

B. Sunday March 15................................................................................................10


C. Monday, March 16 and Tuesday, March 11.................................................... .14
D.
March 17 Law & Finance Committee Meeting····················-·························..16
E.
March 17 Full Board of Supervisors Meeting··········--·-······ ............................. . ............................ 2 3
F. End of Pay Period (Mar. 6 - 19) and Begirming of Covid
Group Meetings
··················-············-··········-···············------· -···-·········-··················27
G. Thursday March 19
-.- ... --· .. --.. -- .. --· ..... ---- --· ·-- ·-- .... -.. ---- ---·-...... --------..--·····-···--.......27
H. Monday March 23
-·--..······---------.·----······---------··---. ---····-.... -.--..-----···-··-----·········-·· 30
I. Tuesday March 24
..-...--·------·-·· ---·····---····-···-·······-··-······-....··············· --....... -.---....34
J. Wednesday March 25
--·-··-···········---·-······-···-·······················································36
K. Thursday March 26
······· -------... -...................................--......-............... -...............38
L. Friday March 27
················ ······························· ......... ·········································41
M. Reversal of Policy for Department Heads and Deputies:
Week of Mar. 23 - 27 .........................................................................................43
N. Monday March 30- Wednesday April1 ..........................................................44
0. Thursday April 2.................................................................................................51
P. Remainder of April2020................................................................................... 53
Q. May 2020............................................................................................................ 57
IV. Employees Who Received Covid-Related Time-and-a-Half..................................61

A. Employees who received time-and-a-half for March 16- 19


and ' 'kept it''........................................................................................................62
B. Employees who received time-and-a-half for March 16- 19
purportedly because of clerical or system errors who voluntarily
returned it............................................................................................................63

PRIVILEGED AND CONFIDENTIAL AITORNEY-CLIENT COMMUNICATION


C. Other department heads and deputy department heads
from whom the extra pay was recaptured on April 9.......................................66
D. Employees who received time-and-a-half for the March 20
- April2 pay period.......................... ----·······························------·························69
V. Legal Discussion______________________________________ ______________________________________________________ ________________69

A. The Administration's announcement of Covid-related


time-and-a-half pay to department heads and union representatives
on M_arch 15,without prior approval from the Board of Supervisors,

B.
Was m Excess of Their AuthoritY....................................................
.............,..,Q9
The meetings of the Covid .
meetings law...... group did not COII!jJir Wifu fue 0~
C. We :~d no illeg~;~;·~·~·· · · · · · · · · · · · · · ·· · · ·-. . . . . . . . . . . . . . . . . . . . . . 72
PartiCipation in the C . pencer Hellwig or Mar ....
OVId group.___________ garet McNamara's
D. The uncert . . ····--------------·----------------------------------------_74
. . am. crrcumstances and tim.
Dectston to eluninate r _ .
mg of the Covtd group •s
for the March 20 - Ap::f~ and-a-~alf for most in-person employees
New york Labor Law pay penod presents risk under the
. . . . . . .... .......... ............ ..............
E. The recapture of time-and-a-half --------------------------------------------..77
deputies for the week of M h 1~ay fro~ department heads and
New York Labor Law arc - 19 dtd not comply with the
----------------------------------------------------------------------------------------·81
VI. Conclusion.................. ............ ..
---------------------------------------------------------------------------- -- ----------------83
Addendum

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
I. Executive Summary

On April24, 2020, E. Stewart Jones Hacker Murphy LLP was hired by the Saratoga County

Board of Supervisors to conduct an investigation of circumstances surrounding the adoption and

execution of special rates of compensation for physically-present workers during the Coronavirus

pandemic, and the business of the Covid-19 oversight group created by Saratoga County Board of

Supervisors Resolution 84 of 2020. This memorandum summarizes the facts as we have been able

to discern them, and provides a confidential legal analysis of whether and to whether and what

extent the facts have legal implications. We deliver the report to you confidentially, as County

Attorney, to distribute to the Board of Supervisors in a manner you deem appropriate.

This report is intended as a confidential communication between our firm and the

Board of Supervisors as our client, imparting legal advice concerning the matters addressed

below. To maintain the privilege, we urge that all individual Board members receiving this report

keep it strictly confidential as against anyone outside of the Board (except for the County

attorney), unless and until such time as the full Board elects to waive the attorney-client privilege

as a body. Individual, unauthorized disclosures made by any custodian of this report to third parties

can inadvertently waive the privilege without the authority of the full Board. This report

confidentially discusses some potential exposures under the New York Labor Law, and it would be

highly irresponsible for any one person, acting unilaterally, to break the privilege attached to this

discussion without action by the Board as a body. We recommend that any discussion the Board

has about this report and whether to waive the privilege, be had confidentially, in executive session,

pursuant to the privilege exemption to the Open Meetings Law. See N.Y. Public Officers Law

§108(3).

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
If the Board concludes, after meeting in executive session, that it would like to disclose

portions of this report publicly while reserving confidentiality of the legal conclusions themselves,

we would recommend that you allow us to provide you with a separate version that includes factual

material and omits all reference to the ultimate legal conclusions.

As discussed more fully below, based on the facts as we have been able to discern them, we

have reached the following conclusions:

• The Board of Supervisors, as a body, is vested with authority to fix or modify


the compensation of County employees (with few exceptions). Without
Board of Supervisors approval, on March 15, 2020 the County Administrator
announced the time-and-a-half plan to department heads, and the Human
Resources (HR.) Director reported it to representatives of the three unions.
Neither the County Administrator nor the Human Resources Director had
legal authority to announce additional compensation on March 15.

• The five-member Covid-19 oversight group created by Board of Supervisors


Resolution 84 of 2020 was a "public body" within the meaning of the New
York Open Meetings Law. Accordingly, its meetings should have been open
to the public, and the group was required to keep contemporaneous minutes
of its meetings. In fact, the meetings were held in private, and there are no
minutes, or any other record, of business conducted during the meetings.
This has contributed to uncertainty about when and how the group decided
to end the time-and-a-half pay for most physically-present workers for the
March 20 - April 2 pay period.

• There has been significant criticism of County Administrator Spencer


Hellwig and HR. Director Margaret McNamara for receiving time-and-a-half
pay initially (for the week of March 16 - 19, which they reversed in
subsequent payroll adjustments), while they were also members of the Covid
group responsible for deciding on compensation adjustments. Although it is
not our province to tell the Board whether that was wise or unwise policy,
we do see not see illegality in what ultimately transpired in that regard. The
record of the Law & Finance Committee and full Board meetings of March
17 indicate that Hellwig and McNamara broadly told those bodies that
"everybody," "any County employee" reporting to work in person would
receive the time-and-a-half pay for hours worked in person, under the plan
that they proposed to have the Covid group launch immediately. At least in
Hellwig's case-good policy or not-his initial receipt of the extra pay
(before reversing it) was actually consistent with what was disclosed to the
Board on March 17. McNamara also would have qualified under the plan as
described that night, except that she happened to be a County "officer"

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PRIVILEGED AND CONFIDENTIAL A'ITORNEY-CLIENT COMMUNICATION
____________.........
within the meaning of N.Y. County Law §201 and, therefore, as a matter of
state law, changes in her compensation require local law amendments subject
to permissive referendum. However, the payroll supervisor has verified for
us that McNamara returned the extra pay in a deduction from payroll on April
9, so the nonconformity with County Law §201 has been rectified.

• The Covid oversight group's decision to discontinue the time-and-a-half pay


in the March 20- April2 pay period for all employees except for 35 working
in the Covid command center is very poorly documented. The group says it
made the decision during a meeting on March 19, but there is no
contemporaneous documentation of the decision, and the first public notice
of it did not materialize until March 31. In the intervening period there were
internal and external communications by some County personnel which are
inconsistent, and justify confusion about whether this change was
definitively adopted on March 19 or sometime later in the affected pay
period. Some evidence strongly argues that this decision was not defmitively
reached until after March 19, or at the very least the decision remained
largely unknown until well after March 19. The net result is that in at least
some County departments there were surely employees who only learned
that they had been removed from time-and-a-half for the March 20- April 2
pay period near the very end of that of that pay period. Consequently, there
is some risk of exposure to unpaid wage claims under the New York Labor
Law, by employees who might assert that they had already earned the extra
pay for that period by the time the County announced that it was ending it.

• The County also reversed course on time-and-a-half pay for department


heads and deputy department heads for the week of March 16- 19. Nearly
all department heads and deputies received the extra pay for that week in
their March 26 paychecks/deposits. Some members of the Covid group
subsequently reconsidered whether department heads and deputies should
receive the extra pay, and decided to reverse it by making offsetting payroll
deductions in the next paychecks of April9. Although it appears that many
department heads and deputies did not want the extra pay and were content
with having it taken back, the manner in which this was done did not comply
with the New York Labor Law's procedures for making deductions from
wages.

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ATTORNEY-CLIENT COMMUNICATION
PRIVILEGED AND CONFIDENTIAL
II. Method of Investigation

We interviewed the following individuals on the following dates:

• County Administrator Spencer Hellwig- April 29 and July 1, 2020

• Human Resources Director Margaret McNamara- April 30, June 24 and


July 31, 2020

• County Attorney Stephen Dorsey, Esq. - May 6, 2020

• Deputy County Administrator Chad Cooke- May 8, 2020 and June 24, 2020

• Supervisor and Board Chair Preston Allen- May 8, 2020

• Supervisor Tom Wood- May 20, 2020

• Deputy Human Resources Director Adam Kinowski - May 21 , 2020

• Supervisor Daniel Pemrick- May 22, 2020

• Supervisor Darren O'Connor- June 25, 2020

• Ryan Mahan, president of the Saratoga County Deputy Sheriffs Police


Benevolent Association ("PBA"), and that union's consultant, Dan Sisto -
July 13 and July 31, 2020 1

• Supervisor Tara Gaston- July 14, 2020

• Supervisors Phil Barrett, Todd Kusnierz and Jonathan Schopf- July 15,
2020

• Sheriff Michael Zurlo and Undersheriff Richard Castle- July 15, 2020

• Social Services Commissioner Tina Potter- July 21, 2020

• Public Works Commissioner Keith Manz- July 22, 2020

• Mental Health Director Dr. Michael Prezioso- July 24, 2020

The PBA representatives declined to speak with the Human Resources & Insurance Subcommittee
for the purposes of its internal review. Our interview with the PBA representatives on July 13 occurred after
the Subcommittee issued its own report. We note, therefore, that our office had the benefit of some
information and documentation (discussed below) that the Subcommittee did not have.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
• Payroll Supervisor Lisa Masten- July 24, 2020

• We also had a very brief phone conversation with Supervisor Ben Zlotni.k
(Town of Milton) on July 1, 2020 to confirm one discrete factual point (see
'1136 below).

In addition by email on June 12, 2020, we contacted representatives of the County's other

two unions, Scott Brackett (CSEA) and Paul Iachetta (UPSEU), asking if the unions would be

willing to cooperate with interviews. Both unions declined our request in writing.

As the foregoing list indicates, we did not interview every County department head. That

would have been more time-consuming and costly than we believe is warranted. We chose the

particular department heads and deputies that we did interview because evidence we reviewed along

the way suggested these individuals were possibly witnesses to particular events or information that

appeared relevant.

At the outset of our discussions with each of the foregoing individuals, we recited notices

consistent with Upjohn v. United States, explaining to the interviewees that: (i) our client is the

Board of Supervisors; (ii) we do not have an attorney-client relationship with the interviewee

personally; (iii) the Board expects the interviewee to maintain the confidentiality of the interview;

and (iv) that the Board itself, as a body, may choose to maintain the confidentiality of the

information given in the interview or not, and if the Board chooses to disclose the information to

any third party (as a body) it may do so at its own discretion without further notice to the

interviewee. All interviewees said they understood this disclaimer and agreed to continue with their

interviews.

We also obtained and reviewed a number of documents. From Hellwig, Cooke, McNamara

and Kinowski we requested all emails concerning the special compensation and incentives offered

to employees in connection with Covid-19, and the activities of the Covid oversight group. We

obtained email productions from Spencer Hellwig and Chad Cooke individually, and a binder of

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
emails from Human Resources, with numerous emails to and from Margaret McNamara and Adam

Kinowski. At our request, Supervisor Lawler also provided us with a copy of the emails his

subcommittee obtained during its internal review of this matter. In addition, on July 13, PBA

representatives Ryan Mahan and Dan Sisto provided us with other documents, primarily concerning

their contacts with HR., the Sheriffs Department and the other unions concerning the extra pay

(these documents came to us after Human Resources and Insurance subcommittee published its

report). Some Supervisors we interviewed provided us with copies of emails between the

Supervisors and the Administrator's office and HR. In addition, we obtained and reviewed the

County's most recent collective bargaining agreements and memoranda of understanding with the

unions, and Excel spreadsheets which extract data from the Kronos data tool, identifying employees

who received time-and-a-half pay for non-overtime hours (as a Covid-related incentive), including

those individuals from whom the overtime was subsequent! y recaptured by deductions from April

9, 2020 paychecks. Salient documents will be referred to from time to time below.

We have also, of course, reviewed all pertinent minutes of the Board of Supervisors

meetings and Law & Finance Committee meetings and Resolution 84, and we have reviewed the

full audio recordings of the Board and Law & Finance Committee meetings of March 17, 2020.

Attached to this report is an Appendix of some of the documents cited below, presented in

PDF format. The documents in the Appendix are paginated "AOOl" through "A093." Throughout

this report, there are citations to the Appendix with page references. We also enclose an Excel

spreadsheet in native format, entitled "OT for Covid 3.16 - 4.2," identifying all employees who

received and retained the time-and-a-half pay (except for employees from whom it was later

recaptured, who are are treated separately at pg. A78- 80 of the Appendix.) These will be further

explained below.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
III. Confidential Fact Gathering Pertinent to Legal Advice Below

The following chronology is taken from our interviews with the above-listed witnesses, the

documents we have reviewed, and publicly available information. Where there is a discrepancy in

witness accounts we note the discrepancy. The purpose of this fact gathering is to assist us in

providing the Board with the legal analysis presented in Part V below. We present this factual

material in numbered paragraphs for ease of citation and cross-referencing.

A. Friday March 6 through Friday March 13.

1. On Friday, March 6, 2020 a new pay period began for Saratoga County employees,

spanning March 6 - March 19.

2. On Saturday, March 7, the DAll..Y GAZETIE reported that there were two reported

cases of Covid-19 in Saratoga County. This made Saratoga one of only five Counties in New York

to have confirmed cases at the time, and the first upstate county (the others being Westchester,

Nassau and Rockland Counties, and parts of New York City). 2

3. Also on March 7, Governor Cuomo issued Executive Order 202, declaring a disaster

emergency in New York State. The Executive Order noted that both travel-related and community

contact transmission of Covid-19 had been documented in the state, transmission was expected to

continue, and that the virus posed a threat to the health and welfare of New York residents and

visitors.

4. Margaret McNamara tells us that during the week of Monday, March 9, she had

contact with the union representatives in which they expressed concerns about working conditions

during the crisis. There is some email documentation to support this. In an email thread between

Cuomo: Two coronavirus cases confinned in Saratoga County, first in Capital Region,
Jason Subik.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Ryan Mahan (president of the Saratoga County Deputy Sheriffs Police Benevolent Association,

"PBA") McNamara and Sheriff Zurlo, over March 11 and 12, Mahan asked questions about how

road patrol officers would be paid if they contracted the virus and were quarantined, and about

whether disinfectant wipes would be available to officers. McNamara tells us that at around this

time she decided to schedule a meeting with all three union representatives for Friday, March 13,

to roundtable their Coronavirus-related concerns.

5. On Thursday, March 12, Governor Cuomo issued Executive Order 202.1. Among

other things, the Order directed that any place of business or public accommodation ordinarily

occupied by 500 people or more reduce occupancy by 50%.

6. On Friday, March 13, Margaret McNamara met with the three union representatives

to discuss their Coronavirus-related concerns: Ryan Mahan (PBA), Scott Brackett (CSEA) and

Brendan Beardsley (United Public Service Employees Union, "UPSEU"). She says that the

concerns aired by the representatives mainly had to do with compensation for quarantined officers,

whether employees sent home would have to use vacation time, and the availability of personal

protective equipment.

a. Notably, McNamara tells us that none of the union representatives demanded

or proposed increased wages for employees coming into work. She tells us that there was

no discussion at this meeting about paying physically-present workers time-and-a-half, and

that the unions did not particularly request that. McNamara also does not recall any union

representative saying anything about the likelihood that essential workers would refuse to

come in (nor does she recall any County department head warning her of potential call-ins).

b. Ryan Mahan of PBA confirmed in our interview with him that during this

meeting none of the unions proposed the time-and-a-half plan. It was not discussed at the

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
March 13 meeting, and he has no reason to believe that any of the unions proposed it after

that (although later, PBA had some objection the way the policy ended, discussed below).

Mahan also corroborates McNamara's account of what was discussed at this meeting,

namely quarantine pay for any officers who may become diagnosed with Covid, and

personal protective equipment.

7. At some uncertain point in time in the few days before March 15,2020 (a significant

Covid planning date discussed below), Deputy County Administrator Chad Cooke tells us that he

first heard about the idea of paying time-and-a-half compensation to some County employees in the

immediate future. He says that Margaret McNamara told him about the proposal, although he does

not recall the location or exact circumstances of the conversation. What he does recall is that

McNamara told him that the County would or should pay time-and-a-half to those employees

continuing to come into work physically (as opposed to those working from home). Cooke tells us

that he does not know whether the proposal was McNamara's idea, or whether it came from

someone else, and he did not recall any other specifics. Cooke's recollection of hearing about the

time-and-a-half proposal at this time, defmitively before March 15, is the earliest moment that any

of our interviewees have said that they knew about the idea.

8. Spencer Hellwig also tells us that he recalls discussing the time-and-a-half proposal

with McNamara at some point by March 15, but he is not sure if it was on March 15 or earlier.

Hellwig recalls that McNamara expressed that she wanted to "get out ahead" of the employee and

union relations problems that a pandemic like this could cause, and mentioned the time-and-a-half

as an incentive to keep people coming into work despite anxiety about the virus. When we asked

Hellwig if he recalls this being McNamara's idea, or instead something that emerged between them

collaboratively, he said he did not recall.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
B. Sunday, March 15

9. On Sunday, March 15 Spencer Hellwig called department heads in for an emergency

meeting to be held at 2:30 p.m., to discuss the County's Covid-19 response. Nearly all of the

County department heads were there. Margaret McNamara, Chad Cooke, County Attorney Stephen

Dorsey, Public Works Commissioner Keith Manz, Mental Health Director Michael Prezioso, M.D.

and Sheriff Zurlo confirm that they attended. The issues for discussion, included, among various

other things, staffmg of the Public Health Emergency Preparedness Program command center,

reduction of the in-person workforce to essential personnel, implementation of social distancing in

County offices, and solutions for having non-essential personnel work from home.

10. Margaret McNamara told us that to the best of her recollection, the idea for paying

time-and-a-half to essential employees arose on March 15 (not before), collaboratively in a private

conversation between herself, Spencer Hellwig and Chad Cooke, a little while before the larger

department head meeting. She claims she cannot recall which of the three of them proposed it first,

but that their consensus was the extra pay may be a needed incentive to keep people coming into

work despite the grim public information about the very high contagiousness of the virus.

McNamara also told us that many of the County offices were not well-arranged for six-feet-apart

social distancing (including the Covid command center where dozens of essential employees would

be working together), which could add to the anxiety of the essential workers. In McNamara's

understanding of the idea, all physically-present County employees would be eligible for the time-

and-a-half pay, except for certain County officers whose compensation may only be adjusted by

local law amendments subject to referendum (such as McNamara herself) 3 or those whose

N.Y. County Law §201 provides that the compensation of a County "officer" may only be increased
or decreased during her term of office by local law amendments subject to permissive referendum, pursuant
to N.Y. Municipal Home Rule Law §24. County "officers" are certain elected officials identified in the N.Y.
County Law, and other appointed officials with a distinct term of office that the County' s local law may

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
compensation is set by state law (such as the District Attorney). All other employees, including

non-union and salaried employees, up to and including department heads, would be eligible.

However, she does not particularly recall discussing her own ineligibility with Hellwig or Cooke

on March 15-she assumes it was a foregone conclusion that officers with compensation set by

state or local law must be ineligible.

11. In any event, it is clear that by this day, at the latest, the Administrator's office had

settled on the idea of paying time-and-a-half to least some essential workers coming into work (as

opposed to people working remotely). At 1:17 p.m. on March 15, Spencer Hellwig sent an email

to all Supervisors which read in part:

I've reached out to the Chairman to inform him that we need to move
forward with only operating next week with essential employees as
identified by the department heads in conjunction with HR. As Chad
reported this step in his earlier email I would add that with this action
will come time and a half pay for the essential staff.

(All.) The email does not define "essential staff' and does not comment on whether the time-and-

a-half would be paid to union and non-union employees alike, or hourly and salaried e~ployees

alike. Notably, this email also did not inform Supervisors that: (i) the extra pay would start

immediately on Monday March 16; or (ii) that Hellwig was going to announce the policy to

department heads that day, or that McNamara would inform the unions that day (as both did,

discussed below).

12. During the 2:30p.m. department head meeting, Hellwig informed the department

heads that their essential employees physically coming into work would be paid time-and-a-half.

Hellwig acknowledged for us that he made this announcement, and McNamara, Cooke, County

specify. Chapter A400 of the Saratoga County Code makes "personnel officer" (i.e., human resources
director) a County "officer." McNamara' s compensation was apparently most recently adjusted by local
law amendment in "Local Law Introductory No. 5," effective January I, 2019.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Attorney Dorsey, Commissioner Keith Manz and Mental Health Director Prezioso each reported

being present in the meeting when he said it. (Sheriff Zurlo was at the meeting but says he cannot

recall whether time-and-a-half was discussed.) We asked Hellwig whether he told the department

heads that any tier of employee would be excluded from the policy, such as salaried employees, the

department heads themselves and their deputies, elected officials or employees whose

compensation was fixed by local or state law. Hellwig told us that he doubts that he was that

specific in his remarks on March 15. Mr. Dorsey and Dr. Prezioso told us that based on what they

heard, it sounded to them like the time-and-a-half pay would extend to all in-person workers,

without any exclusions (though they both say they were not interested in receiving it).

Commissioner Manz told us that it also sounded to him as though Hellwig literally said that all

physically present workers would receive the pay, but Manz privately, subjectively assumed that

department heads and deputies would be excluded because he had never before heard of such a

thing as time-and-a-half for management-level figures.

13. This was announced to at least some employees outside of department heads that

same day. At 6:50p.m., Sheriff Zurlo sent an email to nearly twenty employees in the Sheriff's

Department, reporting: ''The County, in recognition of the importance of all our employees, will

pay the full salary of employees instructed to remain away from work. Employees required to

report will be compensated for time and one half for all hours worked." (See A13.)

14. Ryan Mahan and Dan Sisto of PBA tell us that they also heard of the time-and-a-

half plan for the first time on March 15. Sometime that afternoon, McNamara called Mahan and

told him that employees coming into work would be paid time-and-a-half. Mahan says the proposal

surprised him, but it was not unwelcome news. Dan Sisto tells us that he heard the news sometime

that afternoon, by phone, from Undersheriff Richard Castle.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY~CLIENT COMMUNICATION
15. Margaret McNamara also told us during her interview that she believes that she did

in fact call Mahan and the representatives for the other two unions that day to inform them about

the time-and-a-half plan. She says that during those conversations she did not specify any particular

period of time when the time-and-a-half would begin or end, but says she was clear with them that

it was temporary.

16. Board of Supervisors Chair Preston Allen was not present for the March 15

department head meeting, but he says that Spencer Hellwig telephoned him on March 15 prior to

the meeting to report on the day's events, including the proposal to pay time-and-a-half to in-person

employees for the immediate future. Hellwig advised that he would bring this proposal before the

Board of Supervisors. Allen tells us that he approved of the extra pay because he was persuaded

that that people working in person were taking on a health risk and should be compensated for it.

17. There appears to be no email or written memorandum distributed to the department

heads memorializing the time-and-a-half policy, or providing department heads with specific details

about it, during this initial stage of the experiment. The earliest written direction to the department

heads about the policy was an email from Chad Cooke several days later on March 19, announcing

that the time-and-a-half policy was continuing into the next week. (That email is discussed at 157

below.) We fmd nothing in writing to the departments at the outset giving guidance on whether

there were any employees who would be ineligible for the extra pay despite working in person. For

instance, there is no written instruction to the departments disqualifying those employees whose

compensation was set by local or state law (who, Ms. McNamara tells us, she believes were

ineligible under the policy), department heads or deputies, or elected officials.

18. Nevertheless, it is clear that by March 15, the County Administrator had notified

nearly all department heads, and the HR Director had notified the unions, that the County would be

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offering the time-and-a-half pay to physically present workers, without having a Resolution from

the Board of Supervisors authorizing the extra pay.

C. Monday March 16 and Tuesday March 17

19. On Monday, March 16, 2020, the Governor issued Executive Orders 202.3 and

202.4. Order 202.3 ordered that any expected gathering of more than 50 persons be cancelled. The

Order also directed that restaurants close to all business except take-out service, and that gyms,

fitness centers, movie theaters and various other business cease operation until further notice. Order

202.4, among other things, directed schools to be closed and, importantly, required municipal

governments to reduce their in-person work forces by at least 50%:

Any local government or political subdivision shall, effective March


17, 2020, allow non-essential personnel as determined by the local
government, to be able to work from home or take leave without
charging accruals, except for those personnel essential to the
locality's response to the COVID-19 emergency. Such non-essential
personnel shall total no less than fifty-percent (50%) of the total
number of employees across the entire workforce of such local
government or political subdivision.

20. That same day, March 16, Chairman Allen declared a state of emergency in Saratoga

County. (A84 - 93.)

21 . Also on March 16, Chad Cooke prepared a rough calculation to estimate the possible

weekly cost of paying time-and-a-half to the essential workers. Cooke looked at the County's total

annual payroll, and pro-rated it to arrive at a rough weekly payroll expense of $1.3 million. Based

on that day's Executive Order from the Governor, he assumed 50% of County employees would

continue to work in person as "essential" employees, and figured that the base weekly payroll

expense for that group was around $650,000 ($1.3 million x 50% =$650,000). 4
He, therefore,

4 This was ballpark only. The average salaries of the 50% of persons working "in person" might be
higher or lower than the average salaries of the other 50% working remotely.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
roughly estimated that paying that group time-and-a-half could increase the payroll expense by

$325,000 per week ($650,000 x 1.5 =$975,000; $975,000 - $650,000 = $325,000). This is the

origin of the $325,000 expense estimate presented at the Law & Finance Committee and full Board

of Supervisors meetings on March 17 (discussed below).

22. On the morning of Tuesday, March 17, Stephen Dorsey (County Attorney) was in

the process of revising proposed Board of Supervisors Resolution No. 84 of 2020 which, at that

time, was about the appropriation of $1 million to equip and operate the County's Covid command

center, the temporary suspension of competitive procurement requirements, and regular pay for

quarantined workers. (Dorsey began preparing that resolution on March 13 at the request of Chad

Cooke, to address the command center and procurement issues, with subsequent input from Adam

Kinowski to add language about pay for quarantined workers.) As of that morning, the draft

resolution contained no content about time-and-a-half, or the formation of what would eventually

be the Covid-19 oversight group.

23 . That morning, Dorsey emailed his then-current draft of the resolution to Chad

Cooke, Margaret McNamara and Adam Kinowsk.i. Dorsey tells us that a little while later,

McNamara came to see him and asked Dorsey to add language to the resolution for time-and-a-half

pay to physically-present workers. Dorsey says that he discouraged the idea, and instead proposed

the formation of a committee, whom the Supervisors could authorize to make compensation

adjustments more flexibly as the need arose. Dorsey believed that this more flexible approach was

better suited to the circumstances which were changing by the day, and would probably be more

appealing to the Supervisors than the idea of extra pay for a fixed period of time. Dorsey says that

McNamara agreed to that proposal and left. Dorsey revised the Resolution to incorporate the

content that would create the Covid group, which would include Board of Supervisors Chair Preston

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Allen, Law & Finance Chair Dan Pemrick, Human Resources & Insurance Chair Tom Wood,

Spencer Hellwig, and Margaret McNamara. Dorsey says he selected those five individuals because

they were, in his view, the obvious choices given their roles in the County government. Dorsey

emailed the revised (fmal) resolution to HR and the Administrator's office, and a little later, at

around 1:15 p.m., he delivered it to the Board clerk. Chad Cooke circulated a copy of the draft

Resolution to the Supervisors by email at 12:54 p.m.

24. For her part, McNamara generally recalled that Dorsey drafted Resolution 84 and

recalled that the Covid group was either Dorsey or Hellwig's idea. She did not offer any particular

recollection about any conversations with Dorsey about initially including time-and-a-half pay in

the resolution.

D. March 17, 2020 Law & Finance Committee Meeting.

25. On March 17 at 3:30p.m., the Law & Finance Committee held a special meeting

where, among other things, it took up discussion of proposed Resolution 84. We have reviewed

the minutes of that meeting and listened to the audio recording of it provided to us by the Board

clerk.

26. Beginning at around 07:30 in the audio recording, Supervisor Schopf asked why

there was an estimated labor cost increase of $325,000 (based on Chad Cooke's rough estimate

described above), and the following exchange occurred. Note that during this exchange, Margaret

McNamara was not in the room:

Supervisor
Schopf: So we're sending home half our workforce yet we're paying
$325.000 for them?

Supervisor
Wright: Because the people who are here we're paying time-and-a-
half.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY·CLIENT COMMUNICATION
Schopf: And that's pursuant to the Executive Order?

Hellwig: Well, we met with the unions on Friday, and the subject
came up and three days later we had the order come out. And
one of the issues that was raised by the union was if we're
gonna force people to come to work there should be
recognition of that and this is what was proposed.

Schopf: I don't think we're forcing anybody to come to work, they're


doing their jobs.

Hellwig: Well, I say forced, I mean we' re identifying essential


employees and those employees because of, you know, the
fact that they're not getting the same benefit the rest of the
workforce is getting. Urn, the adjusted compensation was,
is in recognition of that.

27. Some clarification is in order here. We have no evidence that the unions proposed

additional compensation for individuals physically coming to work during the Coronavirus crisis.

As discussed above, Margaret McNamara told us that the unions did not request this-the union

representatives expressed concern about other matters, such as (regular) pay for quarantined

workers, and the availability of personal protective equipment. During our July I second interview

of Hellwig, we asked him whether McNamara said anything to him that led him to believe the

meeting with the unions had spawned the time-and-a-half proposal. He said he did not recall. As

discussed below (131) McNamara says that the extra pay was favorable for union relations, but no

one has told us that the extra pay was negotiated with the unions in the lead up to March 17.

28. A short time later during the March 17 Law & Finance Committee meeting,

Supervisor Kusnierz asked for clarification of whether salaried, in-person employees would be

eligible for the time-and-a-half, and Hellwig clarified that they would:

Supervisor
Kusnierz: Just on that subject, for clarification, is that applicable
to salaried individuals?

Hellwig: Everybody.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Kusnierz: Salaried and ...

Hellwig: Everybody.

29. At no time in the audio recording of the Law & Finance Committee meeting do

either Hellwig or McNamara (or anyone else) suggest that salaried, non-union, or upper level

management (such as department heads, deputies or elected officials) would be excluded from time-

and-a-half eligibility. At no time during the recording does anyone suggest that officers whose

compensation was directed by state or local law would be excluded. The only description of the

class of eligible, physically present workers in the entire recording is Hellwig's broad statement:

"everybody."

a. In his interview, Supervisor Kusnierz told us that he interpreted Hellwig's

remarks as truly meaning that every physically-present County employee would receive the

extra pay, including department heads, deputies, and the County Administrator, except for

those employees whose compensation was set by statute (an example being the District

Attorney).

b. Supervisor Schopf, on the other hand, asserts that he assumed that Hellwig

was talking about non-management personnel only.

30. A few minutes later. at around 10:35 of the recording, Margaret McNamara entered

the meeting. Spencer Hellwig introduced her and she opened her remarks as follows:

Hellwig: Marcy, come on up. Don't get too close. So the question
has been raised [of] the additional compensation that's been
provided to the employees that are actually coming to work
as opposed to those that are being allowed to stay home and
get paid and what the rationale was behind that, uh, in terms
of the discussions that we've had with the union to come to
that, urn, that decision that it was a reasonable
accommodation.

McNamara: Oh, urn, that's basically it. Yeah, it .. . it ... it's a unionized,
urn, decision. You need to negotiate different who's

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
essential, who's not essential. I mean we have eight
hundred ... [McNamara is then interrupted by a question
about the collective bargaining agreements] .

31. Here again, Ms. McNamara's account during our interviews was that the unions did

not request the time-and-a-half, and she did not discuss the idea with them during her meeting with

the union representatives on March 13. This is corroborated by Ryan Mahan ofPBA (the other two

unions declined to speak with us). To be clear, McNamara did say that the unions had other

concerns about working conditions and terms of employment during the pandemic (described

above) and she has told us that there was longer-standing, elevated tension with PBA and UPSEU

because their collective bargaining agreements had lapsed and negotiations for new agreements

were ongoing.5 The time-and-a-half pay may have been constructive for union relations, but it was

not directly responsive to any union request.

32. A little later in the meeting, at around 12:47 of the recording, McNamara was asked

whether other communities were paying time-and-a-half:

Supervisor
Kusnierz: So, is New York State with a hundred and ninety billion dollar budget
doing the same for their employees? Are they doing time-and-a-half?
They have a lot more unions than we do.

McNamara: Every municipality is doing it. I've talked to several. ..

Kusnierz: Time-and-a-half?

McNamara: Yeah, City of Saratoga Springs, time-and-a-half. This is just off the
top of my head. Urn. Town of Malta. I just talked to Supervisor
Lant [of Wilton]. I said are you paying them, he said yes he's paying
them.

During our interview with Ryan Mahan and Dan Sisto (PBA), they denied that there was anything
akin to tension in connection with PBA's expired collective bargaining agreement. They acknowledged that
the collective bargaining agreement had indeed expired and that as of March 17 the union and the County
had not closed on an extension, but they contend that the negotiations were ordinary and not particularly
divisive, and that in March they felt that they were relatively close to reaching an agreement.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
Supervisor
Pemrick: Town of Greenfield is.

Kusnierz: They're paying time-and-a-half for anyone who comes in?

McNamara: Yeah, City of Saratoga Springs.

33. It is now well-documented that none of the municipalities mentioned in this

exchange were paying essential employees time-and-a-half (outside of regular overtime). On

March 30, 2020, the TIMES UNION ran an article quoting Supervisors Lant, Pemrick and O'Connor

in which they denied that their towns (Wilton, Greenfield and Malta, respectively) were paying

time-and-a-half, and quoting Saratoga Springs Commissioner of Finance Michele Madigan denying

that Saratoga Springs was paying time-and-a-half.6 In our interviews with Supervisors Pemrick7

and O'Connor, they confirmed that their towns were not paying the extra compensation, and an

email from Supervisor Veitchto Spencer Hellwig on March 24, 2020 further confirms that Saratoga

Springs was not either. Supervisor Gaston (Saratoga Springs) also advised us directly that Saratoga

Springs never offered any special Covid pay.

34. Spencer Hellwig was the source of McNamara' s incorrect information that Saratoga

Springs was paying Covid-related time-and-a-half. Hellwig and McNamara both agree to the

following account. Some time prior to the March 17 meetings, Hellwig spoke with Saratoga

Springs Mayor Meg Kelly to ask about how the City was compensating employees during the crisis,

and the conversation turned to time-and-a-half pay. Mayor Kelly reportedly said that time-and-a-

half pay was available to hourly employees and also to salaried, FLSA-exempt employees following

a special approval procedure. Hellwig says that he misunderstood this to mean that the City was

6 Saratoga County's HR director benefits from pandemic pay hike, Wendy Liberatore.

7 Supervisor Pemrick of Greenfield is the Chair of the Law & Finance Committee and was present at
the meeting. When we interviewed him, he did not recall saying during the meeting that the Town of
Greenfield was paying time-and-a-half, and does not recall Greenfield being discussed generally.

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PRIVILEGED AND CONFIDENTIAL A'ITORNEY-CLIENT COMMUNICATION
paying time-and-a-half for all hours worked, to in-person hourly workers and had a process for

approving the same benefit for salaried workers. Some time after March 17 (after the MeNamara' s

erroneous statement about Saratoga Springs was publicized), Hellwig had contact with the Saratoga

Springs City Attorney who clarified that the City was not paying time-and-a-half to any employee

for all hours worked. What the Mayor had explained to Hellwig (and which he says he

misunderstood) was the City pays time-and-a-half to all hourly employees for overtime as required

by law (for hours worked above 40 in a week) and that in some cases the City also voluntarily pays

salaried, FLSA-exempt employees time-and-a-half for overtime (hours above 40) if approved by

the City Council. McNamara says that her remarks about Saratoga Springs to the Law & Finance

Committee on March 17 were based on what she heard erroneously from Hellwig.

35. McNamara says she had a similar misunderstanding with regard to the Town of

Wilton. She says that by March 17 she was aware that other municipalities were paying hazard pay

to physically-present workers, and when Supervisor Lant (Wilton) arrived for the Committee

meeting on March 17, she asked him whether Wilton was paying workers to come in, to which he

replied, yes. She thought this meant hazard pay, but after the meeting she says Supervisor Lant

clarified for her that he meant regular pay. (It should go without saying that an employer must at

least pay regular wages to employees who report to work and do their jobs.)

36. With regard to the Town of Malta, McNamara says she misspoke. She says she

meant to say Town of Milton. She says that Supervisor Ben Zlotnik of Milton told her that Milton

either was paying or was about to start paying essential, in-person workers time-and-a-half for all

hours worked. We spoke with Supervisor Zlotnik to verify this. The Supervisor told us that Milton

did pay its in-person workers time-and-a-half as a type of Covid hazard pay, beginning at around

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PRIVILEGED AND CONFIDENTIAL ATTORNEY·CLIENT COMMUNICATION
the same time as the County, and continuing for about two weeks. However, he did not have any

recollection about discussing this with McNamara.

37. With regard to the Town of Greenfield, McNamara correctly notes (as per the audio

recording) that she did not represent that Greenfield was paying time-and-a-half. The audio

recording appears to indicate that a Supervisor said that.

38. We have no documentary evidence of any communication between Saratoga County

officials and other municipalities, before March 17, about whether other municipalities were paying

extra compensation for some workers during the crisis. There is, however, documentation of

communications to this effect beginning on March 18 (the day after the Board of Supervisors

adopted Resolution 84). Carla Groves (Saratoga County HR Department) was on a lengthy email

thread with officials from other municipalities throughout the state (which she forwarded to Adam

K.inowski), and emails from some of those officials do report special benefits for some workers:

a. Cortland County: "We are paying essential employees that are in the big
CSEA group time and a half." (March 18 email.)

b. Delaware County: "Delaware County is paying time and one half to


essential employees working. Time and one quarter for employees working
remotely and straight time for employees not working." (March 18 email.)

c. Oswego County: "If it gets to the point where we are forced to close our
facilities, employees that are required to work at 911 will be given comp time
for hours worked, except for those hours paid at time and one half due to
contractual obligations." (March 18 email.)

d. Washington County: "Currently, in Washington County all essential staff


that are reporting to work are receiving time and a half. Staff working from
the home or not working are not getting overtime but are receiving normal
pay." (March 30 email.)

39. During the March 17 Saratoga County Law & Finance Committee meeting, the

audio recording and the minutes reflect that some Supervisors expressed concern about paying time-

and-a-half to County employees because of both cost, and potential inequity compared to the

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
circumstances of private sector employees furloughed or laid off without compensation, within the

County. Other Committee members emphasized the unprecedented nature of the crisis and the

rapid pace at which circumstances were changing, and noted that this was a temporary measure.

Ultimately, the Committee voted unanimously to send Resolution 84 to the full Board.

40. It bears emphasis that Resolution 84 itself did not actually authorize Covid-related

time-and-a-half pay for any County employees. The formally significant part of Resolution 84 was

this language, which would create the Covid oversight group:

WHEREAS, it is necessary to provide for a flexible and expeditious


process for determining appropriate County staffing levels and rates
of compensation in response to the County's efforts to contain and
mitigate the COVID-19 pandemic and any current directives of the
Governor affecting local governments . ..

RESOLVED, that the Chair of the Board, the Chair of the Law and
Finance Committee, the Chair of the Human Resources and
Insurance Committee, the County Administrator and the Director of
Human Resources shall have the authority to jointly determine
appropriate County employee staffing levels and rates of
compensation that are consistent and in compliance with the current
directives of any Executive Order issued by the Governor of the State
of New York relative to local government staffing levels.

(A2 and A3 .)

41. However, the audio recording and minutes make it clear that the Committee

members present for the March 17 meeting were told that the Covid group's first order of business,

in effect, was going to be the implementation of time-and-a-half pay for ..everybody" (Hellwig' s

term) who was working in person instead of remotely.

E. March 17, 2020 Full Board of Supervisors Meeting

42. The full Board of Supervisors met at 4:30 p.m. on March 17. Similar to the Law &

Finance meeting, the members present deliberated the proposed Resolution 84, and also deliberated

23
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
the proposal to pay in-person workers time-and-a-half (even though that was not technically

included in the Resolution itself).

43. Margaret McNamara outlined the proposal to the Board and, beginning at around

28: 10 of the audio recording, she explained the scope of covered employees as follows:

Supervisor
Barrett: Was the provision for the additional pay, was that in any of the New
York State executive orders or directed?

McNamara: No it was not. This was purely from an employee relations


standpoint and our unionized environment to try to work out a way
where our employee workforce was not going to be clocking in sick
and we could man what we needed to man. And that is not maybe
the case in other municipalities but in Saratoga County that is an
issue.

Barrett: Is it, and who exactly is covered by this provision?

McNamara: So it is anybody who is coming in to work. Currently.

Barrett: Anybody? Any county employee?

McNamara: Any county employee.

44. As these remarks indicate, McNamara's description of eligible employees does not

exclude any employees because they were salaried, non-union, management, elected, or because

their compensation was set by local or state law. At least with respect to what is captured on the

audio and in the minutes, at no point during this meeting did anyone represent to the Supervisors

that the policy would exclude such employees from the extra pay.

a. Supervisors Kusnierz and Gaston told us during their interviews that they

understood the proposal to include all physically-present non-management and management

employees alike (except that they assumed that officials with statutory compensation would

be excluded).

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
b. Supervisor Schopf maintains, however, that he interpreted "employee" to

mean non-management employees only, and presumed that management figures would not

receive the extra pay.8

45. The Board of Supervisors voted unanimously to adopt the Resolution. Shortly

before the vote, the minutes and the audio recording capture some back and forth between the

Supervisors regarding period of time during which time-and-a-half pay might go on. Supervisor

Lawler proposed amending the Resolution to limit the extra pay to a 30 day period. At around 41:40

of the recording, the following exchange occurs in response to Supervisor Lawler's comment, and

immediately before the vote:

McNamara: We wouldn't want to do it for thirty days. We're not


committed to the thirty days. We were in an emerging
situation on Sunday so we said we'd do it for one week and
then, you know, so on Thursday, we're gonnahave a meeting,
take a look, scale it back for it, we're gonna continue the time-
and-a-half. But they are fully aware that we cannot continue
time-and-a-half forever.

Supervisor
Schopf: I would support this for a week, we review it with the Human
Resources Committee, urn, I would support it on that basis.

Supervisor
Barrett: I agree.

Schopf: If those representations have been made. We can't have this


an open ended . . . if s unsustainable.

Barrett: We'll take Preston's word for it.

Supervisor
Kusnierz: I just want to add to the record that's something I can whole-
heartedly support. Urn, as I intimated earlier, in my
comments, my concern was, because the sole authority to
declare emergency rests with the Chairman, the way this has

8
Supervisor Barrett expressed less certainty with us about what "any county employee" meant, but
indicated that he assumed the March 17 approval would just be the ftrst step in a longer process, which
might have possibly involved public hearings.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
been structured, language-wise, is as long as there's an
emergency that continues to be in place that would continue
to be on into perpetuity, so, I think it's an excellent
compromise my colleague on my right just mentioned
regarding 30 days if in fact there was a commitment to review
this within a week I'm okay with that.

46. In our interviews, Supervisors Schopf, Barrett and Kusnierz emphasized that, to

them, this commitment to review the policy within a week was critical to their agreement to vote

for Resolution 84, and they indicated that a lack of updates over the next week led them to levy

public criticisms, described below.

47. Two union representatives-Ryan Mahan (PBA) and Scott Brackett (CSEA)-were

present during this meeting and thanked the Board. McNamara invited them to attend. According

to Mahan, McNamara asked him to come to the County offices that day to thank a few of the

Supervisors, but did not prepare him for the fact that he would be addressing the full Board during

a formal meeting. He also says that he was unpleasantly surprised to learn during this meeting that

he was there to thank the Supervisors for something they had not yet approved-he had assumed

that the Board already approved the extra pay. In any event, as attendees of the meeting, Mahan

and Brackett were present when McNamara emphasized to the Board that the time-and-a-half pay

was, of course, temporary ("they are fully aware that we cannot continue time-and-a-half forever,"

as quoted above from the audio).

48. The Board members present voted unanimously to adopt Resolution 84, thereby

creating the Covid oversight group. Although the Resolution itself contained no mention of time-

and-a-half pay, the audio recording and minutes indicate that the Board was aware that the Covid

group would immediately (albeit temporarily) institute time-and-a-half pay for, as McNamara put

it, "anybody who is coming into work ... any county employee."

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
F. End of the Pay Period (March 16 • 19, 2020) and Beginning of Covid Group Meetings

49. Although debated at the March 17 meetings, the time-and-a-half pay for physically

present workers began retroactively on Monday, March 16, a few days before the end of the March

6 - March 19 pay period. At McNamara's direction, payroll clerk Lisa Masten made the necessary

adjustments in the Kronos payroll system beginning around March 19, retroactive to March 16.

50. The question of which employees received the extra pay for the week of March 16-

19 and which did not is addressed separately, in detail, in Part IV below. But, generally speaking,

the data provided to us indicates that more than 570 County employees received Covid-related time-

and-a-half pay for March 16-19. A much smaller group of 35 employees received it for the March

20- April2 pay period, and no employees received it for any period after April2. As also discussed

further below, a number of department heads, deputy department heads and elected officials

received time-and-a-half pay for March 16- 19, paid in the March 26 paychecks, but it was taken

back from them by payroll deductions in the April 9 paycheck. Spencer Hellwig and Margaret

McNamara were in that group. The breakdown of who received the time-and-a-half and when, and

who returned it, is a complex subject unto itself and is better suited to examination outside of this

chronology and, therefore, is addressed separately in Part IV below.

51. The five-person Covid group (Allen, Wood, Pemrick, Hellwig and McNamara) tell

us that they met as a group on March 19, March 25, April2 and Apri19. The group met in private

and did not take minutes. All five members told us that they did not take notes during the meetings.

They also did not take formal votes on actions, although the members consistently told us that they

were unanimous in each of the decisions they made.

G. Thursday, March 19.

52. County Payroll Supervisor Lisa Masten told us that on Thursday, March 19,

McNamara directed her (verbally), for the first time, to apply time-and-a-half wages to all

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
employees working in person, beginning March 16. Masten says that McNamara told her the only

personnel to be excluded were Board of Supervisors members and the County Coroner. According

to Masten, McNamara did not specifically mention herself or Spencer Hellwig in these directions,

but Masten assumed that they were to receive the extra pay because McNamara said "all"

employees coming into work (except the Coroner and the Board). So, Masten went about making

the necessary entries in the Kronos payroll system to effectuate the direction, and included Hellwig

and McNamara in the group of employees receiving the extra pay.

a. More specifically, Masten created a new code in Kronos, to assign to

employees who worked in person. The departments would keep track of which hours

employees worked in-person, so that Masten would know to whom the code should be

applied, and their number of qualified hours, when running payroll.

53. All five members of the Covid group tell us that they met for the first time as a group

on March 19, reportedly at around 5:30p.m. They also tell us that during that meeting they decided

to end the time-and-a-half pay for the incoming March 20 - April 2 pay period, for all employees

except "approximately 40" people working in the command center. 9

54. The Covid group members told us about a number of reasons why they made this

decision. They each cited the expense of the extra pay as being unsustainable long-term. They also

indicated that by March 19, it was clear that the number of employees who would be working from

home (or otherwise staying home) was larger than they had anticipated at the beginning of the week,

which could make social distancing within County offices more feasible (and, thus, the hazard of

9 As noted in 152, the payroll supervisor, Lisa Masten, just started setting up the time-and-a-half
mechanic in the payroll system on March 19, under verbal instructions from McNamara on March 19. At
that time, Masten was still operating under the understanding that all physically-present workers (except the
Coroner and Board members) would receive time-and-a-half. Masten says that she did not hear that the
time-and-a-half would be limited to command center personnel until April2 (see 1102 below).

28
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
coming into work less urgent). Supervisors Allen, Pemrick and Wood also candidly told us that by

March 19 there had already been significant public backlash to the plan, and it had proven to be

unpopular. The Supervisors say that they heard negative feedback from County residents. to

55. The issue of whether the Covid group in fact made this decision on March 19, or

whether the group did so retroactively sometime later in the March 20 - April 2 pay period, has

been a matter of some controversy. For example, a group of Supervisors would later publicly

question whether this was a retroactive decision made later than the 19th (198 below), and there is

some evidence that department heads questioned whether this was a retroactive change during a

March 31 virtual department head meeting (<fl[93-94 below).

56. There is no contemporaneous documentation showing that the Covid group, did in,

fact decide to limit the time-and-a-half pay to command center personnel on March 19. There are

no minutes or notes of the March 19 meeting, and there are no verifiable announcements of the

change in policy to the Board of Supervisors, County departments or the unions at that time. On

the other hand, there is documentation, discussed through the remainder of this chronology, which

justifies doubt as to whether the group in fact made a concrete decision on March 19, or some time

closer to the end of the March 20 - April 2 pay period.

57. The first of those documents is an email that Deputy County Administrator Chad

Cooke sent to all department heads at 4:34p.m. on March 19. That email read:

As a reminder, operational protocol for next week is the same as this


week with the exception of further reductions of staff as you have
discussed with Marcy. Employees that are deemed non-essential are

10
Although none of these interviewees cited it as a reason for purportedly reducing the time-and-a-
half pay to a smaller group, on March 19, by that day the HR. Department had learned that a number of other
municipalities were, in fact, not paying time-and-a-half to essential workers for all hours worked. An email
thread circulated to Carla Groves and Adam Kinowski in HR. revealed that a few counties were paying hazard
pay, but the same thread revealed that rest of the respondents were not (see 138 above). Therefore, by March
19, at least some personnel in HR. had reason to know that Covid time-and-a-half pay for municipal
employees was not pervasive in other communities.

29
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
staying home and will be paid straight time. Employees that will be
working are being time-and-a-half.

(A14.) There is no indication in this email that the time-and-a-half pay would be limited to

command center workers.

58. Cooke says that he sent this email in error, because he was not informed of the Covid

group's decision to reduce the employee base receiving time-and-a-half to the command center

personnel until after he sent the email. Reportedly, the Covid group met at 5:30p.m. (about an

hour after his email), and he says he did not learn about the change in policy until days later. But

we note that Cooke did not send any follow-up email to department heads correcting this

information until nearly two weeks later, on April2, and by that time the Covid group had met two

more times (March 25 and April2). (See 1101 below.) Having no minutes of any of the meetings,

for that reason alone it is simply undocumented as to whether the Covid group made its decision on

March 19, or during some later meeting.

59. As corroboration, Margaret McNamara contends that she told representatives of all

three unions on March 19 that the County was discontinuing the extra pay for everyone except

command center staff. She told us that she telephoned the representatives for all three unions that

day and had that conversation. But that is not contemporaneously documented either. As discussed

below (in chronological order of events), McNamara did not attempt to document those

communications (retroactively) until late May (see IJ[111). Moreover, the PBA president denies

outright that he heard of the change in policy on or near March 19 (see TJ{76, 114).

H. Monday March 23

60. On Monday, March 23, Spencer Hellwig sent an email to all Supervisors which

informed them, among other things: "The Times Union .. . contacted me and my response is

attached in the Word document." Hellwig's Word document copied questions that Wendy

30
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Liberatore (TIMES UNION) emailed to him earlier that day, followed by Hellwig's answers. One of

Liberatore's questions was: "I'm writing a story on the time and a half that the essential county

employees are receiving. How many employees is that?" Hellwig's answer was:

We are down to 380 which represents a 70% cut in staffing. Most of


that number is made up of Corrections, Road Patrol, DSS, and Public
Health.

(A16.)

61. If the Covid group (of which Hellwig was a member) decided on March 19 to limit

time-and-a-half pay to the 40 or so employees in the command center, then by March 23 the number

of affected employees should have been well below 380, and would largely not include Corrections

and Road Patrol employees (who, with a few exceptions, were mostly not working the command

center).

62. Another of Liberatore's questions was: "Are you and your staff getting time and a

half too?" Hellwig's answer was:

The list of essential employees are all being exposed to a higher


level of exposure and it does include upper management. The
Sheriff, the Public Health Director, the Emergency Services
Director, the MH Director and other department heads are included
in this group. They are the backbone of everything the County is
doing to manage this pandemic.

(A16.) If the Covid group decided on March 19 to end time-and-a-half pay for everyone except

command center personnel, it does not make sense that Sheriff Zurlo is included among those

receiving the extra pay (he was not a command center worker).

63. On March 23 the TIMES UNION's website ran an article 11 with the following passage,

paraphrasing Hellwig's answers:

11 Saratoga County officials angry over essential employees getting huge pay bump, Wendy
Liberatore.
31
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Saratoga County Administrator Spencer Hellwig says that 380 people
are being paid time-and-a-half for every hour they work. Employees
being paid the new rate are mainly from the sheriff' s office and the
department of public health and social services. Hellwig aid he too
is getting time-and-a-half as are all upper management: Sheriff
Michael Zurlo, the Public Health Director Cathi Duncan, Emergency
Services Director Carl Zeilman and other department heads because
they 'are the backbone of everything the county i doing to manage
this pandemic.

Hellwig tells us that the TIMEs UNION misquoted him, and in particular that he never said he was

receiving time-and-a-half by that point and that these parts of the article were an incorrect inference

by the reporter. It is correct that Hellwig' s written an wer to Liberatore's question did not indicate

that Hellwig himself was receiving the extra pay, but this does little to explain Hellwig's reference

to 380 other employees receiving the extra pay as of March 23. Any County employee reading this

article-indeed any person reading this article- would have reason to believe that all physically

present worker were getting the extra pay (or at least those in the departments mentioned by

Hellwig).

64. The March 23 TIMES UNION article -which bore the headline "Saratoga County

officials angry over essential employees getting huge pay bump" -also featured quote from

Supervisors Schopf and Kusnierz criticizing the time-and-a-half plan. The article noted that Schopf

and "other supervi ors are demanding a review of the plan this week." Schopf told the paper that

he would "not upport this moving forward ... I support our employees, but I also support fiscal

responsibility." The article quotes Kusnierz as aying the County "can't go around spending money

like we are printing it in the basement." This triggered a notable exchange between McNamara and

PBA.

65. Specifically, PBA president Ryan Mahan tells us that he forwarded a link to that

article, by text message to Margaret McNamara on March 23 at 7:30p.m., and he provided us with

32
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
a copy. The document indicates that the following text exchange occurred over the next few

minutes:

Mahan: [Link to March 23 Times Union Article]

Mahan: I assume we are still getting time and a half this week? Is
there another hearing in this we can go to again?

McNamara: I can't believe it .. . such a slap in everyone's face who is


working so hard. It's only 3 supervisors. I will know
Wednesday [March 25]. I am pushing for it.

(Al8.) Facially, this exchange appears to indicate that on March 23 Mahan was not aware that

time-and-a-half ended for almost the entire PBA membership effective March 20 (even though

McNamara says that she told him this telephonically on March 19). Notably, McNamara's reply

does not correct Mahan. He opened this exchange with the statement "I assume we are still getting

time and a half this week?," and MeN amara' s response does not tell him that he is wrong, nor does

it attempt to remind him of the bad news she tells us she gave him on March 19.

66. We asked McNamara about this text exchange in a follow-up interview with her.

She acknowledged that these texts were genuine. However, McNamara insists that she did tell

Ryan Mahan (PBA) on March 19 that time-and-a-half was ending effective March 20, and she

denies that the texts indicate otherwise. According to McNamara, during her conversations with

Mahan and representatives for the other two unions on March 19, even though she told them the

time-and-a-half was ending for everyone outside the command center, she told them she would

continue to lobby for some form of appropriate hazard compensation, whether that might be

reinstitution of time-and-a-half later, "comp time" (additional time off in exchange for in-person

hours worked), a lump sum payment, or some other solution. Her contention, basically, is that in

this March 23 text exchange with Mahan, she wasn' t necessarily saying she was fighting for

continuing the time-and-a-half, she was fighting for some kind of hazard compensation generally.

33
PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
If that is the case, it seems unu ual that McNamara would not have at least corrected Mahan'

assumption about the very particular time-and-a-half format for hazard pay ("I as ume we are still

getting time and a half this week") with a more direct reminder that time-and-a-half was over for

now, even as she continued to lobby for some type of hazard benefit.

67. Parenthetically, McNamara tells us that the "3 upervisors" that he referred to in

her text were Supervisors Barrett, Kusnierz and Schopf, whom he regarded as the most vocally

oppo ed to hazard compensation. She explains that she was communicating to Mahan that he was

not ure what type of hazard pay might be achievable becau e there were three Supervisor on the

Board who were opposed to it. She offered this detail to clarify that in the text, she wa not referring

to the "3 supervisor " who were in the Covid group (namely, Supervisors Allen, Pemrick and

Wood).

I. Tuesday March 24

68. On Tue day March 24, Spencer Hellwig circulated an email to all Supervisors with

an attached staffmg plan for the following week. Color coding in the preadsheet identifies which

management level employees were to receive time-and-a-half: there were thirty-two (32) managers

in that group, including Margaret McNamara and Adam Kinowski. (A l9 - 20.)

69. McNamara and Kinowski were not command center personnel; if the Covid group

had decided to limit the benefit to command center personnel on March 19, McNamara and

Kinowski should not have been scheduled to receive time-and-a-half as of March 24. Hellwig and

McNamara tell us that McNamara and Kinowski were li ted in error. (And, although we did not

ask Kinowski about this particular document, he separately told us that he had asked early on not

to receive any extra pay, which would effectively agree that this document was in error). Hellwig

told us that this spreadsheet was a living document that had been around for a while, and it should

34
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
have been edited early on to remove McNamara and Kinowski because they purportedly agreed

very early that they would or could not accept the time-and-a-half (this is discussed further below).

(Parenthetically, we note that this spreadsheet showed Hellwig as not being slated to receive time-

and-a-half the following week by March 24.) 12

70. Later that same day, at 9:04 p.m., Sheriff Zurlo sent an email to over twenty

employees in the Sheriffs Department which, in part, responded to the March 23 TIMES UNION

article. The email included this notable statement on the status of the time-and-a-half policy:

Last week the Board of Supervisors approved a staffmg plan that


included furloughing 13 as much staff as possible to home for the
safety of our staff and your families and to ensure that when the time
comes we can quickly ramp up County services again. As part of
this plan, essential staff, including manager [sic], will receive
additional compensation. Hourly employees are receiving time and
one half for all hours worked, while salaried managers are
receiving time and one half of their regular salary but are not
receiving any pay beyond 40 hours even though many are working
substantially overtime. Contrary to the story publicized last evening
and amended this morning by the Albany Times Union, I, along with
other elected officials and the County Administrator, am not
receiving any additional pay for my work during the Covid 19
pandemic. 14

(See A22, emphasis added.) The Sheriffs Department is heavily unionized. Most of the rank and

file officers are members of either PBA or UPSEU. McNamara contends that she informed

12 This document apparently made its way to the TIMES UNION. On March 25, the paper ran an article
reporting that "A total of 32 managers will be paid overtime for the first 35 hours they work, and they will
receive regular wages any time after that." 12 This seems to have elevated the furor about how the time-and-
a-half experiment was being handled. The article quoted remarks by Supervisors Kusnierz and Barrett,
critical of the fact that McNamara was receiving time-and-a-half, inasmuch as she was a part of the very
body (the Covid group) making decisions about compensation.

13
The Sheriff did not literally mean "furloughing." Ordinarily that term means temporarily laying
someone off without pay. The Sheriff uses the term "furlough" to refer to employees staying home with pay
during the Covid crisis.

14
Whether he realized it at the time or not, a few days later on March 26, Sheriff Zurlo would actually
receive time-and-a-half pay in his paycheck for the week of March 16- 19 (as would Hellwig). But Zurlo
(and Hellwig) would later reverse and return it through a payroll deduction on April 9. (See 1 133 below.)

35
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
representatives for all three unions on or about March 19 of the Covid group's alleged decision (of

March 19) to eliminate the extra pay for most employees (all except command center personnel).

Yet this March 24 email mentions nothing about that change in policy. It describes the policy as

broadly as it existed before March 19, and appears to indicate that the state of mind within the

Sheriff's Department was that nearly all physically-present workers were getting the extra pay (all

except those that the Sheriff singles out in this email, i.e., Zurlo himself, other elected officials and

Hellwig). During his interview, Undersheriff Castle indicated that he still thought as of as of March

24 that all physically-present workers were getting the extra pay, and does not recall hearing

otherwise until March 31 (discussed below). (Sheriff Zurlo said in his interview that he did not

particularly recall when and how he eventually became aware of any change in the time-and-a-half

policy.)

J. Wednesday March 25

71. On Wednesday, March 25, Supervisor Schopf emailed Spencer Hellwig (cc to all

Supervisors) asking which employees were receiving time-and-a-half by that point. Hellwig replied

by email at 12:04 p.m. (cc to all Supervisors): "All non-management regular employees that are

physically reporting to work are getting time and a half for every hour worked." (See A24, emphasis

added). Hellwig's email does not mention anything about limiting the extra pay to command center

workers. Hellwig tells us that this email was an error.

72. Furthermore, later that same day (March 25), at 3:04p.m., Hellwig circulated a draft

press release to the Board of Supervisors (by email) which contained information about who was

receiving time-and-a-half. That release acknowledges command center staff, but does not appear to

indicate that they would be the only ones receiving time-and-a-half. It appears to state that the

number of employees receiving it was still around 340. The draft release read in part:

36
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
There are 40 members of the county staff assigned to the Emergency
Operations Center daily. These individuals are investigating
confirmed cases and contacting those in the community who may
have been exposed. They're also answering calls from residents that
come into the COVID-19 hotline. .. . These questions range in
nature from medical, mental health, logistical, and many other
categories.

'Like other counties in the state, Saratoga County is currently paying


those deemed essentUzl employees that must report to work at a rate
of time-and-a-half. This decision was the result of several
considerations, including recognition of their increased risk of
exposure, the need to maintain essential staffmg, working with our
three collective bargaining units, and more simply as a matter of
employee equality,' said Hellwig.

As has been the case since this policy has been enacted, the County
Administrator and elected officials are not receiving any additional
compensation beyond their normal salary. 15

* * *
The number of employees reporting to work daily is down to 340,
representing a 72-percent reduction in staffing.

(A28- 29, emphasis added.)

73. All of the members of the Covid group tell us that they had their second meeting

together on March 25. Each of them told us that during that meeting, they decided to continue time-

and-a-half pay for the 40 or so employees working in the command center only, which they say was

a continuation of the policy they settled upon during their March 19 meeting. Here again, in the

absence of any written notes or minutes from the March 19 or March 25 meetings, there is no

contemporaneous documentation of these decisions.

15 As discussed further below in Part IV, it is not correct that Hellwig and elected officials were not
receiving time-and-a-half "since this policy has been enacted." Hellwig and some elected officials did
receive the extra pay in the March 26 paychecks, and then the extra pay was later reversed and recaptured
through payroll deductions in the April 9 paychecks. The eventual, net result is that they did not retain the
extra pay.

37
PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
74. PBA president Ryan Mahan asked to attend and observe the meeting but was denied.

Specifically, on March 24 he emailed Margaret McNamara and Deputy HR. Director Adam

Kinowski and asked whether the meeting would be open to the public and what time it would be

held. (See A30.) The next morning (March 25) Mahan received a text message from Kinowski

informing him that the meeting was closed. (A31.) Mahan sent Kinowski a text message and

another email a little later that day to Kinowski and McNamara, complaining that the meeting

"directly effects all county employees and the negotiated labor agreements," and reiterating his

desire to attend. (See A31, A 33.) Despite this, he was not allowed to attend. McNamara did not

particularly recall Mahan's request to attend the meeting, but in our conversation she agreed that

she would not likely have allowed a union representative to attend because she doubts that the

Covid group members would want union representatives present as observers.

75. According to text messages shared by Mahan, at 4:52 p.m. on March 25 McNamara

sent a text message to him and to CSEA representative Scott Brackett, in which she asked to meet

with them the next day: "Can you meet tomorrow at 10 just with me. Just the three union presidents

and myself we can meet again with the others." Mahan responded that he could meet, and tells us

that he and representatives for the other two unions did meet with McNamara the next day, March

26. (See A34.)

K. Thursday, March 26

76. According to Ryan Mahan (PBA), he, Brendan Beardsley (UPSEU) and Scott

Brackett (CSEA) met with Margaret McNamara on March 26. According to Mahan, during this

meeting McNamara said nothing about any plan to limit the time-and-a-half pay to command center

workers for the then-current pay period. On the contrary, Mahan says that McNamara told them,

in sum or substance, that the time-and-a-half pay for all physically-present workers would be in

38
PRIVILEGED AND CONFIDENTIAL A'ITORNEY-CLIENT COMMUNICATION
place through the end of that pay period (until April 2), but that she was uncertain whether it would

continue after that. According to Mahan, one alternative that McNamara mentioned was switching

to "comp time" after April 2-that is, a policy in which physically-present workers would be

awarded with more paid time off rather than extra cash wages. Mahan says that McNamara also

encouraged the union representatives to write the Board of Supervisors directly if they felt they

wanted to argue for continuation of the time-and-a-half pay or some other form of hazard

compensation.

77. Mahan says that he accepted McNamara's suggestion, and later that day (March 26)

he drafted a letter for the benefit of the Board of Supervisors. PBA' s consultant, Dan Sisto, emailed

the letter to McNamara the next day (March 27) and requested that she pass it along to the Board

for their consideration. (See A35- 36.) The letter thanked the Board for what it had done so far,

and ''urge[ d) the Board to consider extending the compensation rate to help offset the emotional

impacts that are weighing on our members and their families." The letter does not convey any

understanding that the Covid group had purportedly decided to end the time-and-a-half pay for all

but command center workers back on March 19.

78. In our discussions with Margaret McNamara, she did not specifically recall meeting

with the union representatives on March 26, but does not doubt that she could have. She was

adamant, however, that if she did speak with them that day, there is no way she would have told

them that the time-and-a-half pay would continue to April 2. She insists that all three unions knew

by March 19 that time-and-a-half ended for everyone except the smaller command center group.

McNamara agrees that by this week she was discussing the possibility of "comp time" with the

unions in some fashion, and acknowledged that she may have encouraged the unions to write the

Board of Supervisors directly.

39
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
79. Mental Health Director Michael Prezioso, M.D. tells us that by around this time

(March 26) he had heard "rumblings" that the time-and-a-half might be ending soon. He does not

remember where he heard it, who he heard it from or when, and he assumed that whenever a fmal

decision was made it would be in writing. Dr. Prezioso struggled with recalling when he heard the

rumblings, but he told us that be probably heard it after the March 20 - April 2 pay period began.

It appears that he had enough doubt by March 26 that he sent this email to three of his direct report

subordinates that afternoon:

Subject: HR Update

Hi-

Ok for people to exercise the option to be at home, as we discussed.


Likely, but not defmite, that we will be returning to straight pay. I'll
pass along confirmation when I get it. Thanks!

(See A37.) Dr. Prezioso says that he cannot recall what, in particular, prompted him to send this

email on that particular day (March 26). This suggests that he suspected, but was unsure as of

March 26 that the extra pay would end.

80. Also on March 26, the County issued paychecks/direct deposits for the March 6 -

March 19 pay period. As discussed further in part IV below, it appears that over 570 County

employees received time-and-a-half in that paycheck, including Hellwig, McNamara, Sheriff Zurlo

and all department heads, deputy department heads and elected officials who were reporting to work

in-person (except the coroner). As also discussed further below, Hellwig, McNamara, and Cooke,

and Kinowski say that they and others were paid the time-and-a-half in error and should have never

received it (for various reasons addressed below). They advise that like other department heads

and deputies, the County reclaimed the extra pay from them in the April 9 paycheck through payroll

deductions, which has been confirmed by Payroll Supervisor Lisa Masten. (Sheriff Zurlo said he

did not recall whether he received the time-and-a-half pay but was of the view that he should not

40
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
have. But the information from Masten and other witnesses indicate that he did receive the extra

pay on March 26, but like a number of other employees it was recovered from him in payroll

deductions on April 9.)

L. Friday, March 27

81. At 3:00p.m. on March 27, several Supervisors met with all five members of the

Covid group (Spencer Hellwig, Margaret McNmara, Preston Allen, Dan Pemrick and Tom Wood 16)

and others at the County offices. We are told that the visitors included Supervisors Phil Barrett

(Clifton Park), Jonathan Schopf (Clifton Park), Todd Kusnierz (Moreau), Daren O'Connor (Malta),

Kevin Tollisen (Half-Moon, via phone) and Bill Peck (Northumberland). 17 This meeting apparently

occurred at the instigation of some of those visiting Supervisors-Barrett, Schopf and Kusnierz in

particular expressed to us that they wanted the meeting to get more details on the time-and-a-half

policy and to better understand what the Covid group's intentions were going forward. During our

interview, they emphasized their remarks from the March 17 Board of Supervisors meeting, in

which they had indicated that a re-examination of the extra pay within one week thereafter was an

important caveat to their votes in favor of Resolution 84 (TJ[45-46 above). By March 27 more than

one week had elapsed, and they felt that they had not received any meaningful progress updates

from the Covid group.

82. According to Barrett, his main priority at this meeting was to get a clear picture of

what exactly had been promised to the unions or the departments about the extra pay, including

how long the County had committed to pay it. He proposed that the County pay the time-and-a-

16 Supervisor Wood reportedly participated by phone and the other Covid group members were there
in person.

17 Other attendees reportedly were Chad Cooke, Adam Kinowski, Sheriff Zurlo, Undersheriff Castle,
Director of Patient Services Cathleen Medick, and Mental Health Director Michael Prezioso.

41
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
half through whatever period it had committed to pay it (if any) if it was feasible, and then fairly

end the extra pay at the earliest possible time after that. Supervisors Schopf and Kusnierz generally

agreed with that account, and Supervisor O'Connor expressed a priority for getting a clearer picture

of exactly what employees were actually receiving time-and-a-half. Supervisors Barrett, Schopf,

Kusnierz and O'Connor all contend that they did not get straight answers to these questions, and

concluded the meeting with little to show for it. These Supervisors also indicate that if the Covid

group limited the time-and-a-half to command center workers on March 19, no one explained that

to them during the March 27 meeting.

83. The Covid group members also told us about this meeting in our interviews with

them. Their consensus was that it was a contentious meeting in which several of the Supervisors

expressed displeasure with the time-and-a-half policy altogether and urged that it be ended as soon

as possible, and that they had a lot of questions about what members of upper management were

receiving the extra pay. McNamara says that those Supervisors were aware, by the time of this

meeting, that only command center personnel were being paid time-and-a-half in the current pay

period (March 20- April2). In fact, she says that a prominent part of the Supervisors' questioning

was about wanting to know who exactly were the command center employees receiving the extra

pay.

84. Also on March 27, Margaret McNamara had further text communication with Ryan

Mahan (PBA). McNamara directed us to a text chain in which Mahan asked her: "Has the amount

of comp time been determined already. Or is that still up in the air till Wednesday [April 1]? I

don't want to tell anyone anything if it is wrong." (A37.) McNamara urges that this tends to show

that Mahan understood by March 27 that time-and-a-half was ended and that the unions and the

County had moved on to considering a comp time solution. Mahan, acknowledges that this text

42
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
exchange is genuine, but he insists that he was asking about comp time beginning for the next pay

period starting April 3. He insists that McNamara told him on March 26 that time-and-a-half would

remain in place until April 2 ('!176, above), and that comp time might replace time-and-a-half after

April 2. These text messages can be read consistent! y with either account and, therefore, are not

dispositive of either account.

M. Reversal of Policy for Department Heads: The Week of March 23-27

85. Sometime during the week of March 23-27, some members of the Covid group

decided to disqualify department heads and deputy department heads from receiving the time-and-

a-half, retroactively back to March 16. Hellwig, McNamara and Cooke tell us that a number of

department heads and deputies had in fact specifically asked not to receive the extra pay in the flrst

place and, on further reflection it was determined to be better policy not to pay the extra

compensation to any heads or deputies.

86. Margaret McNamara could not recall the exact day, but told us Spencer Hellwig

informed her some time during this week (March 23 - 27) that he (Hellwig) had spoken with

Supervisor Allen, and they agreed to reverse the overtime paid to department heads and deputy

department heads for the already-concluded March 6- March 19 pay period (which was paid for

the last four days of that period, March 16-19). They decided to recapture time-and-a-half paid to

those employees for March 16 - 19 by making offset payroll deductions in the April 9

paychecks/direct deposits.

87. Hellwig confirms that he gave this direction to McNamara. He cannot recall the

exact time either, but did not dispute her estimation that it was during the week of March 23 - 27.

Hellwig said that after discussing the matter further with Supervisor Allen, they determined it was

more appropriate to exclude department heads and deputies from the Covid time-and-a-halfbeneflt.

43
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
88. This decision, in fact, probably occurred no later than March 25. We infer that for

two reasons. First, as discussed above, on March 25 Spencer Hellwig sent an email to all

Supervisors in which he wrote: "All non-management regular employees that are physically

reporting to work are getting time and a half for every hour worked." (See A24, emphasis added,

')[71 above). Second, Supervisor Pemrick told us that he remembered Margaret McNamara saying

something during the March 25 Covid group meeting about making adjustments for department

heads. The impression that Pemrick had was that department heads were paid the time-and-a-half

incorrectly and that HR was setting up a dedicated email channel to communicate with those

employees, through which they could "reject the pay if they wanted to."

a. The pay checks with the extra pay for these employees were issued the next

day, March 26, but payroll supervisor Lisa Masten tells us that paychecks are basically

"locked" two days before the day they are issued. That is, the latest time that she can make

any wage adjustments for a paycheck is three days before the check is issued. So, if the

Covid group decided to reverse the time-and-a-half pay for department heads, deputies and

elected officials on March 25, it would have been too late to pull it from the March 26

paychecks (hence, the need to recapture the extra pay through payroll deductions on April

9).18

N. Monday, March 30- Wednesday. Aprill

89. On Friday, March 27 and again on Monday March 30, Ryan Mahan (PBA) says he

spoke with Margaret McNamara, looking for an update on whether the time-and-a-half would be

18 Ms. Masten told us that Margaret McNamara verbally instructed her to reverse the time-and-a-half
to department heads, deputies and elected officials sometime between March 26 and April 6 . She says she
knows it was within that time window because it happened after the March 26 paychecks went out (at which
time several department heads contacted HR to say that they did not want the extra pay they received in
those checks) and it could not have been any later than April6 because after that it would have been too late,
system-wise, to make the offsetting payroll deductions in the April 9 paychecks.

44
PRIVILEGED AND CONFIDENTIAL A'ITORNEY-CLIENT COMMUNICATION
continuing into this week. He says that in both conversations, McNamara was non-committal, and

indicated that she was still working on the issue. He says that as of March 31, no one in the County

had told him that any decision had been made to reduce time-and-a-half to command center

personnel. He believes the other two unions also had not been informed of that as of March 30. He

shared with us a March 30 text message exchange between himself and Scott Brackett (CSEA), in

which Brackett appears to at least share Mahan's uncertainty about the status:

Brackett: You get any word on what's going on with the time
and half pay

Mahan: Absolutely no idea. Marcy spoke in circles on


Friday. Today she called at 8 am and asked that I not
speak to anyone they were working on ideas for
compensation. I still don't have a clue. They haven't
given a solid answer yet.

Brackett: K I went there and couldn't get a answer she said he


call me later and I'm waiting.

(See A38 - 39.)

90. The same day, Monday March 30, the TIMES UNION ran an article reporting:

"Margaret McNamara . .. is taking time-and-a-half pay for the first 35 hours she works each week.

She also sits on the five-person committee reviewing its merits." 19 The article featured quotes from

Supervisors O'Connor and Kusnierz which were critical of McNamara's taking of time-and-a-half,

and also critical of her incorrect statements to the Law & Finance Committee on March 17 about

"every" municipality paying time-and-a-half to in-person workers. This article is clearly based in

part on the staffmg list that Hellwig circulated to Supervisors on March 24 (')168, above). As noted,

that staffing list indicated that McNamara would receive time-and-a-half for the "first 35 hours"

1!1 Saratoga County's HR director benefits from pandemic pay hike, Wendy Liberatore.

45
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
she works per week. (Although McNamara and Hellwig contend that the staffing list was mistaken

in that regard, it does say that).

91. Also on March 30, a group of Supervisors calling itself the "Saratoga County Public

Health Northway Corridor Task Force" released an open letter entitled "Statement on Overtime for

Saratoga County Employees." Signed by Supervisors Barrett (Clifton Park), Schopf (Clifton Park),

Tollisen (Halfmoon), O'CoiUlor (Malta), Kusnierz (Moreau), Lant (Wilton), Gaston (Saratoga

Springs) Veitch (Saratoga Springs) and Connolly (Ballston), the letter stated that since the

fonnation of the Covid group on March 17, "we have questioned decisions made by County

leadership related to a compensation structure, particularly for employees not directly involved on

the front lines of the response to the pandemic" (emphasis added.) The letter continued: "Based

on the track record of County Leadership since the March 17th Board of Supervisors meeting, we

believe discretion for decision making purposes during this public health emergency should be

limited and more specific with the sole authority to set and approve compensation structures resting

with the full constituted Board of Supervisors after public deliberation and vote." Id. (See A40 -

41.)

92. The next day, Tuesday March 31, yielded what appears to be the first written record

of the Covid group's decision to limit the time-and-a-half pay to the 40 or so employees working

in the corrunand center (a decision the group says it made twelve days earlier, on March 19).

Specifically, on March 31, Supervisor Allen published an announcement on the County's website

which provided updates on the County's Covid-19 response and, in relevant part, also stated the

following:

Contrary to what you might read in the news, I want to assure you
that the county's elected officials, County Administrator, Deputy
County Administrator, Director of Human Resources, and the
Corrunissioner of Emergency Services have been compensated at

46
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
their regular salary from the very beginning. The only employees
getting time and a halfare those who are working in our COVID-
19 command center. This group varies day to day but is on average
staffed with 40 employees.

(See A43 - 44, emphasis added.) There is a notable parallel between this announcement and the

"Task Force's" open letter from the day before. As noted, in its March 30 letter the Task Force

complained of the time-and-a-half policy "particularly for employees not directly involved on the

front lines of the response to the pandemic" (191, emphasis added). Supervisor Allen' s March 31

announcement-limiting the extra pay to command center workers-did, in a manner of speaking,

reign the time-and-a-half pay in to "front line" workers.

93. The same day (March 31), HR held a remote Department Head meeting, in which

Margaret McNamara addressed the heads by phone and/or video conference. There is a partial

audio recording of that meeting which we have obtained and reviewed. The recording begins

partway through the meeting and apparently omits at least the ftrst few minutes of the meeting. 20

But evidently during the portion of this call that is omitted from the recording, McNamara told

department heads that the County was discontinuing the time-and-a-half pay for all workers except

command center workers, as of March 20. In the recorded portion of the call, Commissioner Tina

Potter (Department of Social Services) returned to the subject and asked, "With regard to the no

more compensation, were you going to send a note out or do you want each of the department heads

to notify" the employees. We spoke with Commissioner Potter to ask about her question, captured

in the recording, and she advised us that earlier in the call McNamara had indeed told the department

20
We requested a copy of the recording from Chad Cooke in July of this year, after hearing from
another individual that this meeting occurred on March 31 and that it may have been recorded. Cooke looked
into it and produced the recording promptly after our request for it. After reviewing it, we asked him whether
a recording for the earlier part of the meeting is available. He reported that the recording was made on a
phone bridge managed by Undersheriff Castle, that he had checked with the Undersheriff, and that this was
the entirety of the recording. Apparently there is no recording of the first part of the meeting.

47
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
heads that the County was eliminating the time-and-a-half pay for the March 20- April 2 pay period

except for command center personnel. Potter also reported that this is the first time she had ever

heard this, and that there was some discussion among the heads on the call about whether the County

could "retroactively" withhold the extra pay for the already-well-underway March 20- April 2 pay

period.

94. The recorded portion of the meeting also captures a question by Public Works

Commissioner Keith Manz, in which he asked whether it was necessary to track employee hours

worked in the office "since it doesn' t matter now." We spoke with Commissioner Manz about this

meeting and the nature of his question. He told us that to the best of his recollection, during the

March 31 call, McNamara announced to the department heads that the County was discontinuing

time-and-a-half pay retroactively to March 20, except for people working in the command center.

Manz says this was the first he had heard that, and he was surprised by it because his employees

had already been working over a week in this pay period under the impression that they would be

paid time-and-a-half. The next day, April 1, Manz sent this email to fifteen employees in his

department, which he shared with us:

Subject: Essentials til4/15, No OT 3/20 and Beyond

From yesterday's Dept Head Conf Call, we will be following the


Governor's Executive Order stating only Essential Employees until
4/15. So we will be in this same mode for at least 2 more weeks.
When that changes, a similar email and follow-up to your Groups
will take place. The other news is there will be no more time and
a half pay for regular hour time worked in the office/field
retroactive back to 3/20. In other words, all time worked here
during regular hours in the current payroll will be paid straight time,
with the exception being those working in the CaU Center. Same
going forward, straight time only during the employee's regular
working hours. If an employee refuses to come in, they will be
asked what leave time they want to use. Thanks for disseminating
this information, Keith

48
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
(See A45, emphasis added.) This email appears to contemporaneously corroborate this depanment

head' s recollection of being told about this change in policy for the first time on March 31.

95. At 8:24p.m. on March 31, Saratoga County Chief Sheriffs Deputy Gleen Sheey

forwarded an email from Undersheriff Castle to a few dozen Sheriff's Department employees. The

email stated: "As many may have heard, the County is planning to make a change to the employee

compensation during the State of emergency," and further remarked that "there remain questions

that we need to have answered before we can properly relay information to you." (See A48.) The

next day (Aprill), Chief Deputy Sheehy forwarded another email from Undersheriff Castle to the

group, which clarified: "Going forward only employees of Public Health directly working on the

Covid-19 response will receive additional compensation beyond regular overtime. No members of

the Sheriffs Office are included in the group receiving additional pay. Discussions are ongoing

about the effective date of this decision and we hope to have more information for you on

Thursday." (See A49.) In our interview with him, Undersheriff Castle says that, to the best of his

recollection, the Sheriffs Department first received notice of this change on March 31 after

Chairman Allen released his March 31 public statement (<][92, above), and he does not recall hearing

about it any earlier than that. (Sheriff Zurlo reported that he did not recall when he ftrst heard about

the elimination of the extra pay for his Department, but he expressed no particular recollection of

hearing about it before March 31.)

96. Ryan Mahan (PBA) tells us that he first heard about this change in policy on March

31, when a PBA member alerted him to Chairman Allen's announcement on the County website.

He alerted the PBA board about this revelation that same day. (A46.) Mahan also maintains that

the other two unions did not hear about this change before March 31 either. He provided us with a

copy of an April 1 text message exchange between himself and Brendan Beardsley (UPSEU) in

49
PRIVILEGED AND CONFIDENTIAL ATTORNEY ·CLIENT COMMUNICATION
which Beardsley questioned whether the change in policy was "retro" or not. (See A50.) He also

shared an April 2 text message from another UPSEU representative, Paul Iachetta, in which Iachetta

expressed surprise that time-and-a-half pay had ended: "Wait. Time and one half ended on tues?''

(See A52.)

97. Furthermore, emails produced to us by McNamara appear to be consistent with

Mahan's claim that, at the very least, he did not have a clear picture of what was happening with

time-and-a-half at the end of March. Early in the morning on March 31 Mahan wrote to McNamara:

1 don't want to bother you time and again. My members keep asking
what is going on with pay this week. We are two days away from the
end of a pay period and we don't have an [sic] defmitive answer for
this week yet. 1 have done my best at holding them off but I really
need to let them know what to expect for now, not next week.

(See A42.) And on April! (the day after the Chairman's public announcement that only command

center personnel were getting the extra pay) Mahan wrote to McNamara:

We are getting asked a million times over who is still getting the time
and a half. This was never discussed, not one union had a chance to
prepare for answering members this line of questioning. I personally
have members in the command post who don't know anything about
this and now they look like they're lying when they say I don't know.

Please provide me with the complete list of the 40 workers still


receiving time and a half as this and the issue of compensation is
looked into.

(A51.)

98. Also on April 1, the "Task Force" of protesting Supervisors (Barrett, Schopf,

Tollisen, O'Connor, Kusnierz, Lant, Gaston, Veitch and Connolly) released another open letter,

responding to Chairman Allen's March 31 announcement. The April2 open letter commended the

County leadership for its "reversal of their decision to pay county administrators 50% above their

nonnal salary," but condemned what they characterized as a "retroactive" decision not to pay the

"rank and file" workers time-and-a-half for the then-current pay period. (See A52-53.)

50
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
0. Thursday April 2

99. The Covid group met on April 2. Supervisor O' Connor-though not a member of

the group-attended this meeting at the recommendation of several other Supervisors and the

consent of the Covid group. O'Connor presented a three point proposal regarding the time-and-a-

half pay:

(i) Discontinue the Covid time-and-a-half for all employees effective April 3
(which was the beginning of a new pay period);

(ii) Honor the Covid time-and-a-half pay for non-management employees


through April 2, if "binding commitments" were made to those employees;
and

(iii) Going forward, the full Board of Supervisors should decide whether extra
compensation is in order for Covid-related hazards to workersY

100. O'Connor tells us that he does not feel that he and the Covid group reached

consensus on these points during the meeting. The Covid group interviewees, on the other hand,

tell us that they did reach some form of consensus. Specifically, they tell us that they agreed to

discontinue the Covid time-and-a-half pay for all employees as of April 3. They indicate that they

decided during that meeting to discontinue the time-and-a-half pay in its entirety for the April 3 -

April 16 pay period and thereafter.

101. On Thursday, April 2 at 6:35 p.m., Chad Cooke sent an email to all department heads

reporting on the Covid group's "decision regarding the current pay period and those that follow"

(emphasis added). (A55-56.) The "current" pay period to which this applied was March 20- April

2. The email included an attachment which summarized the decision "For the pay period from

21 O'Connor also presented a fourth point relating to a different issue about some union members'
complaints that the County had prevented them from engaging in outside employment. Essentially,
O'Connor recommended that that grievance should be addressed through established labor relations law and
practice.

51
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Friday, March 20th through today, April200" and those following. The attachment summarizes the

Covid group's decision as follows:

• Department heads and deputy department heads would receive only their
regular salaries.

• For the March 20 -April 2 pay period, employees working in the command
center would receive time-and-a-half for all hours worked.

• For March 20 - April 2, in-person employees not working in the command


center would be recognized as follows:

o For non-union employees and CSEA union members who worked in


person, they would receive 4 hours of personal time added to their
accruals for every day worked.

o For other union members who worked in person, their in-person


hours were recorded and compensation would be worked out in labor
negotiations with the union representatives.

• Beginning April 3, the Covid time-and-a-half would be discontinued for


everyone.

(A56.) This April2 email appears to be the flrst direct, written instruction to all department heads

regarding the Covid group's decision to limit time-and-a-half to command center personnel in the

March 20 -April 2 pay period.

102. Significantly, payroll supervisor Lisa Masten tells us that Chad Cooke's April 2

email was the flrst notice she received that the County was limiting the time-and-a-half pay to

command center workers for the March 20 - April 2 pay period. She had never heard that before

from anyone. In fact, Masten and her assistant spent the weekend of April4-5 manually re-coding

the entries in the Kronos system to effectuate this change-during that weekend, Masten and her

assistant made the necessary adjustments to remove time-and-a-half from all but command center

personnel, and to credit the 4-hours-of-personal-time for those employees eligible (as described

above). They worked over the weekend in order to complete the changes in time, because April 6

was the last day payroll could make adjustments to the upcoming April 9 paychecks.

52
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
103. In other words, mechanically, payroll was adjusted to eliminate the time-and-a-half

for the March 20- April 2 pay period, after the close of that pay period. (Except for 35 command

center workers, who did get the extra pay for this period.)

P. Remainder of April2020

104. The Covid group met for a fmal time on April 9. The members tell us that at this

meeting, for the April 3- 16 pay period, they decided to extend the 4-hours-of-personal-time-for-

every-day-worked benefit to all of the roughly 40 employees working in the Covid command center,

as well as about a about a dozen Social Welfare Examiners and Caseworkers who, likewise, were

on the front lines (their jobs required them to enter private homes for welfare checks, potentially

exposing them to infection).

105. Also on April9, the County issued paychecks to employees, covering the March 20

- April2 pay period. The payroll supervisor, Ms. Masten, has verified for us that:

a. In this April 9 paycheck, 35 people working in the Covid commend center

received time-and-a-half pay. (A81 - 83.)

b. In addition, in the April 9 paychecks, the County made deductions from

wages for department heads, deputy department heads, and elected officials to recapture

time-and-a-half paid to them in the March 26 paychecks (covering the March 6- March 19

pay period). This included Hellwig and McNamara. 22

22 As a test sample, we asked for documentation showing us what Hellwig and McNamara's recaptures
looked like. Lisa Masten provided us with copies of Kronos earnings history reports for Hellwig and
McNamara for the March 12, 2020 paycheck (illustrating for us a "flat" or normal pay period for them), the
March 26 paycheck (showing us the amount of increased compensation they received by virtue of time-and-
a-half), and the April 9 paycheck (showing us the reduced pay in those checks for the recaptures). Those
documents indicated that Hellwig and McNamara each did, in fact, receive the extra pay in the March 26
paychecks, and that it was recaptured from them in full in the April 9 paychecks.

53
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
106. In addition, on April 9, McNamara tell us that he convened a department head

meeting in which she explained that the time-and-a-half already paid to department heads and

deputies for the week of March 16 - 19 (in the March 26 paycheck) was being reclaimed from them

by the County in the April 9 paycheck . She announced to the attendee that if any of them had

questions or concerns about this decision, they could report those confidentially through a special

email address that HR had set up for that purpose: COVlDBenefits@ aratogacountyny.gov.

107. McNamara tells us that only one person in this group-a deputy department head-

complained about having the time-and-a-half taken back. McNamara has provided us with a copy

of that employee's email objection. Because HR promised that employees could raise their

objections confidentially, we are omitting the objecting employee's name from this report. But we

can conflrm that the complaining employee was a deputy department head who was not in HR or

the administrator' office. McNamara says that HR honored the employee's complaint andre tored

the time-and-a-half in a one-time supplement to the employee in a later paycheck. We confirmed

this independently with payroll supervisor Lisa Masten, who tells us that thi employee's time-and-

a-half earned in the week of March 16- 19 wa restored in that employee's May 7 paycheck.

108. McNamara reports that no other department heads or deputy department heads

complained about having the time-and-a-half pay taken back, although some emailed the pecial

COVIDBenefits@saratogacountyny.gov address with que tions. We asked McNamara to provide

us with copies of all emails from this group. She produced 19 emails in response to that request,

which we have reviewed. Most of the emails are actually about unrelated HR questions, but there

are several in which other department heads or deputies raised questions about the time-and-a-half

policy. There are two email on April10 in which employees asked for an explanation of why they

had received reduced pay on April 9, and one email in which an employee more pointedly stated

54
PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
that he/she believed he/she was underpaid on April 9. There were also emails from two other

employees on April 13 and April 23, asking for a walk-through of what they were supposed to be

paid and when. Although none of these emails particularly read as "complaints" per se, they do

reflect confusion about the policy and none of them indicate overt consent to having the money

taken back in the April9 checks. Nevertheless, Hellwig, McNamara and Cooke have each told us

that virtually all of the department heads and deputies (with the exception of the one complainant)

did not want the extra pay. (It is plausible that many department heads and deputies would not want

the extra pay. Among our interviewees, for example, Spencer Hellwig, Chad Cooke, Adam

Kinowski, Steve Dorsey, Sheriff Zurlo, Undersheriff Castle, Commissioner Manz, Commissioner

Potter and Dr. Prezioso all told us they had no interest in the extra pay and were quite content having

it reclaimed.)

109. On April14, 2020, the County and UPSEU signed a Memorandum of Agreement,

extending the terms of the expired collective bargaining agreement to cover the year 2019 (the prior

agreement expired on December 31, 2018). (A57- 59.) Among other things, this Memorandum

of Agreement included the following benefit for UPSEU members employed by the County:

After ratification and all legislative approvals of this Agreement, a


one-time payment of $1,500, not to be included in employee base
salary or wages, allocated to the last pay period, shall be issued and
paid within ftfteen ( 15) business days of approval by the Saratoga
County Board of Supervisors of this agreement.

(A57.) This one-time $1,500 payment has colloquially come to be known as the "stipend." UPSEU

and the County's representatives apparently negotiated this benefit, at least in part, with the

intention of settling the issue of time-and-a-half pay for UPSEU members for the March 20 - April

2 pay period. Although the Memorandum of Agreement itself says nothing about time-and-a-half,

Paul Iachetta (UPSEU representative) subsequently supplied Margaret McNamara with a "To

Whom it May Concern" email, in which he acknowledged that the stipend would be "paid in

55
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
consideration of the union forfeiting certain contractual rights during the coronavirus state of

emergency as well as resolving the issue of 'Hazard Pay' for essential employees who worked

between the dates of March 20 and April3." (A68.)

llO. On April 21, 2020, the Board of Supervisors passed Resolution 89-2020, which

amended Resolution 84 to delete the provisions enabling the Covid group. During the same

meeting, Supervisors questioned Margaret McNamara about the timing of the Covid group's

decision to eliminate the time-and-a-half for all employees except command center personnel. The

minutes reflect that McNamara was asked when and how she informed the unions of that decision:

Mr. Lawler said he would like to clarify with Mrs. McNamara that
on March 19th she and other members of the Administration that
they met with the 3 union presidents and they told those 3 presidents
that time and one-half compensation program was ending as of
March 19th. He asked if she had that meeting with the three union
presidents on March 19th and you told them that. McNamara said
yes, she did.

(See A65.) McNamara told us that she spoke with the union representatives on the phone on March

19, not in a meeting.

56
PRIVILEGED AND CONFIDENTIAL ATIORNEY-CLIENT CO:MMUNICATION
Q. May 2020

111. On May 21 , 2020, Margaret McNamara wrote emails to Scott Brackett (CSEA) and

Paul Iachetta (UPSEU) asking for confirmation of their knowledge that the time-and-a-half pay

ended for nearly all employees (except command center workers) on March 19. (See A69- 70.)

On May 26, she also emailed this inquiry to Ryan Mahan (PBA). (A71.) McNamara wrote these

emails to the union reps in response to questions by the Human Resources and Insurance

Subcommittee' s internal investigation.

112. McNamara posed the question to all three union representatives identically:

I am writing to request that you confirm that you were aware that
the time and half [sic] stopped on March 19, 2020. As part of the
internal investigation, the investigation team: Supervisor Lawler,
Supervisor Peck, and Supervisor Allen would like to speak with you
concerning the employee relations and history of Saratoga County
Covid-19 response.

113. All three unions declined to speak with the Subcommittee, but they each did respond

to McNamara' s email. (See A67- 72.) (PBA's representatives spoke with us, but CSEA's and

UPSEU's declined to do so.)

114. In Daniel Sisto's email response for PBA on May 28, he wrote: "The statement that

the union was advised that the time-and-a-half rate of compensation for all hours worked by

members of this union would case on March 19th, 2020 is factually incorrect." (A72.) As discussed

in detail above, Sisto and PBA president Ryan Mahan, in our interviews with them, vehemently

denied McNamara told them on March 19 that time-and-a-half ended for non-command center

personnel, and they maintain that they did not learn that until March 31.

115. For our purposes, we find the responses of the other two unions, UPSEU and CSEA,

to be inconclusive by themselves, because those representatives have declined to be interviewed

57
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
and these email exchanges are not self-explanatory. There are also additional documents that we

have obtained from PBA (after the Subcommittee released its report) which urge a conservative

interpretation of these emails.

116. For one thing, McNamara's email query to the three representatives does not directly

ask when the unions learned that the time-and-a-half pay ended on March 19. The McNamara

emails ask: "I am writing to request that you confirm that you were aware that the time and half

[sic] stopped on March 19, 2020." But there is a difference between knowing that the extra pay

stopped on March 19, and knowing on March 19 that the extra pay stopped. Any person who ever

eventually learned that the time-and-a-half stopped on March 19-even someone who didn't learn

it until March 31-could honestly answer McNamara's question "yes" without revealing when he

learned it. In other words, you could ask a person today, "Did you know that Lincoln gave the

Gettysburg Address in November 1863?" They could answer "yes," but that of course does not

mean that they knew in November 1863 that Lincoln gave the Gettysburg Address. This is not to

suggest any ill intent in McNamara's question, but without direct interview access to CSEA and

UPSEU to ask them what they thought they were answering we find these email exchanges difficult

to work with for the purposes of evaluating when legal notice may have occurred.

117. Indeed, in Paul Iachetta' s May 22 response for UPSEU, he wrote: "Please be advised

that the United Public Service Employees Union was aware that the time and one half payments

ceased as of March 19, 2020." (A70.) Being aware that the extra pay "ceased as of' March 19

does not necessarily mean that Iachetta learned that fact on or about March 19 or thereabouts. It

may mean that, but it may not.

118. Similarly, in Scott Brackett's response for CSEA on May 21, he wrote: "We

understood At the March 19 meeting the xtra [sic] pay was going to end and wasn't sustainable for

58
PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
the county." (A69.) This email apparently indicates that Brackett understood on March 19 that the

extra pay was temporary, but does not necessarily indicate that he knew the extra pay was ending

the very next day, March 20. Everyone knew that the extra pay "was going to end" at some point.

119. Furthermore, on July 13, 2020, Ryan Mahan of PBA provided us with copies of what

he says are text messages that he had with the other union representatives which suggest that things

were perhaps not so clear to UPSEU and CSEA until the end of March either. As noted above,

there is a March 30 text exchange between Scott Brackett (CSEA) and Mahan (PBA) in which

Brackett asks: "You get any word on what's going on with the time and a half pay?" (A39.) There

is also an April 2 text from Paul Iachetta (UPSEU) in which Iachetta asks if PBA is still getting

time-and-a-half, and indicates surprise to hear that it had ended. (A54.)

120. Furthermore, Mahan says that he had the following text exchange Brendan

Beardsley (UPSEU) on May 26 (after Mahan received McNamara's email asking him to confirm

that he knew that time-and-a-half ended on March 19):

Mahan: Marcy just emailed me and asked me to confirm that I knew 1.5 pay
was stopped on the 19th. That is not correct Marcy. You told us a
week later that we were approved til April 3ro and there were no
guarantees after that. You actually promised you were still fighting
for us.

Beardsley: LOLgrimey.

Mahan: She is lying to us as she asks for a favor.

Beardsley: Yes. I am not surprised and than [sic] she wants you to answer the
one question and not tell the whole story.

Mahan: Clear as day. She said definitely approved til April 3rd. Asking
people to lie to her is not fucking cool.

Beardsley: I told Paul what we say officially and what we explain off the record
doesn't have to be the same. And she holds a lot of chips shes [sic]
front line on our contracts u go against her u will be paying for it till
you retire.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
(A73- 74.)

121. Mahan also shared with us what he says is another text exchange with Beardsley on

July 7 which includes the following:

Mahan: Home slice, Did you guys really say that you know the overtime pay
was ending on 3/19?????????

Beardsley: No. Who said we did

Mahan: Sorry I was camping. Rumor is that you guys took that stance.

Beardsley: We said nothing that was our stance. We said we would not be
involved that's all we said.

(A75.)

122. And, finally, Mahan shared what he says is another text exchange with Beardsley

from July 8, in which Mahan was commenting on the presentation of the Subcommittee's internal

investigation report:

Mahan: Lawlor [sic] is gtvmg his review now. He said Brackett and
Corrections confirmed both unions knew pay ended on the 19th. He
then tore me up for saying it wasn't factually accurate and how I
didn't answer myself. I had Dan [Sisto] answer for me.

Beardsley: Wtf that's the way their [sic] interpretation of what we said ... only
thing we said was that we took the stipen [sic] for over time and a
half pay for certain days so if anything else came from the county
that went beyond that point we could get it.

* * *
Beardsley: All we said is we took the stipen till that date idt we ever said
anything about it beginning or ending.

Mahan: Your email says that your union was aware that 1.5 payments ceased
on 3/19. Apparently Scott's says the same. We all look stupid. It
looks like we knew pay ended and you didn't tell our memberships.

Beardsley: Well that ain't good.

(A76- 77.)

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PRIVILEGED AND CONFIDENTIAL A'ITORNEY·CLIENT COMMUNICATION
123. We have not verified these text messages with Mr. Beardsley, because UPSEU

declined our request for an interview. But, on the whole, the question of whether HR notified the

unions of the change in policy for time-and-a-half on March 19, or some time later, is at least very

contestable.

IV. Employees Who Received Covid-Related Time-and-a-Half

124. As discussed below, apparently a group of over 570 employees received the time-

and-a-half pay for the week of March 16- 19, but for department heads, deputy department heads

and elected officials, the County recaptured the extra pay by making deductions from wages in the

April 9 paychecks. For the pay period beginning March 20 (March 20 - April 2) a smaller group

of 35 employees working in the command center employees received time-and-a-half. None

received it after April 2.

125. We asked Human Resources to provide us with data sufficient to identify every

employee who received Covid-related time-and-a-half pay. In response to that request, the payroll

group ran queries in Kronos to extract data, which Chad Cooke organized into Excel spreadsheets

for presentation to us. (Although Cooke is not in HR, he ended up taking on the project because,

we are told, he is more competent in data extraction and Excel.)

126. From that exercise, in June 2020, Cooke produced two different Excel files entitled

"Pay Adjustments" (which is included in PDF format in pages A78-80) and "OT for Covid 0316 to

0402" (which we enclose in native Excel format rather than PDF, for file size reasons). To put it

in plain terms, the "OT for Covid 0316 to 0402" spreadsheet lists every employee who received the

time-and-a-half pay and "kept it" (for lack of a better term), and the "Pay Adjustments" spreadsheet

lists all employees who were paid time-and-a-half initially in the March 26 paycheck (which

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PRIVILEGED AND CONFIDENTIAL ATTORNEY·CLIENT COMMUNICATION
covered the pay period ending March 19), but returned it or had it pulled back in their next paycheck

on April 9. The circumstances of how or why that happened are discussed below.

127. We also followed up with the payroll supervisor, Lisa Masten, to get clarity on which

employees received time-and-a-half for the March 20- April2 pay period (the "OT for Covid 0316

to 0402" spreadsheet that Cooke organized lumps the entire March 16 - 19 and March 20 - April

2 periods together, so from that document we could not identify those employees, specifically, who

received the extra pay in the latter period). Masten provided us with another spreadsheet

specifically for the March 20- April 2 pay period, showing that 35 employees received the extra

pay for that period, all of whom were command center personnel. (A081- 83.)

A. Employees Who Received Covid-Related Overtime for March 16-19 and "kept it."

128. Cooke tells us that the "OT for Covid 0316 to 0402" spreadsheet captures all

employees who initially received the time-and-a-half and kept it (i.e., did not return it in the April

9 or any subsequent paycheck).

129. Payroll supervisor Lisa Masten confirmed that payroll was able to isolate these

employees in the system because HR created a unique code for those employees who received the

special pay. They were able to pull these names together by querying that code. This list, however,

excludes people who received the extra pay and returned it or had it deducted in the next pay period

(who are discussed separately below). We are told that this is because employees from whom the

pay was retroactively recaptured were no longer coded in the system as having received the extra

pay, and they had to be isolated manually.

130. This spreadsheet lists 576 people, by name, who received the time-and-a-half pay

beginning March 16- 19, and kept it. We were surprised by this number, because it is significantly

higher than prior estimates we had heard. In our interviews, we most commonly heard that the

number of affected employees was in the 300s. A March 23 article in the TIMES UNION reported

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
the number as being 380. 23 Spencer Hellwig' s March 25 press release stated the number as about

340 (Cft72.).

131. In our re-interviews of Spencer Hellwig, Margaret McNamara and Chad Cooke in

June and July (we did not have the spreadsheet during our first interviews of them), we asked about

the larger-than-expected number. They all said that the 300-something estimate commonly uttered

before did not reflect the number of people who were paid time-and-a-half, it was the number of

full-time equivalent positions that earned time-and-a-half. In other words, one person in a

department might work only 2 hours in the office in a day, and another person in the department

might work 6 hours in the office. Together, those two people equal one, 8 hour full-time equivalent

shift in the office, for which time-and-a-half pay was paid. In a separate conversation, Lisa Masten

the payroll supervisor also told us this . She told us that she analyzed this in Kronos from time-to-

time (before she learned the time-and-half was ending) and consistently arrived at a net, full-time

equivalent position/shift figure in the mid-300s which she sometimes discussed with Chad Cooke.

This is apparently where the numbers that Hellwig shared with the press came from. 24

B. Employees who received time-and-a-half from March 16 - March 19 purportedly


because of clerical or system errors, who reportedly, voluntarily returned it.

132. Another spreadsheet-"Pay Adjustments"-isolates employees who purportedly

received time-and-a-half for the March 16 - March 19 period (in their March 26 paychecks) because

of "clerical" or "system" errors, and returned the money voluntarily in the next paycheck on April

23
Saratoga County officials angry over essential employees getting huge pay bump, Wendy
Liberatore.
24
We have not attempted to audit whether the extra compensation paid to these 570+ people nets out
to a full-time equivalent count in the mid-300s. This is not to say that we have any reason to doubt the
explanation, but that is an accounting exercise that we, as a law frrm, are not equipped to perform efficiently.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
9 through payroll deductions. (A77- 78.) These employees are identified with color-coding in the

second (lower) table that appears in A77 - 78.

133. According to Hellwig, McNamara and Cooke, these employees should never have

received the extra pay in the first place either because: (i) they were County "officers" whose pay

can only be adjusted by local law subject to referendum; or (ii) they were County "officers" with

compensation set by state statute; or (iii) because they preemptively asked not to be paid time-and-

a-half. These individuals are listed in Table 1, below.

Table 1: Employees Allegedly Paid in Error

~';r~·. E~~~· ~~~;


Andrew Blumenberg, Public Karen Heggen, District Joseph Carr, Youth Bureau
Defender Attorney Director

Steve Dorsey, County Rick Castle, Undersheriff


Attorney
Chad Cooke, Deputy County
Bill Fruci, Commissioner of Administrator
Elections
Richard Emery, Corrections
Craig Hayner, County Clerk Administrator

Andrew Jarosh, Treasurer Spencer Hellwig, County


Administrator
Keith Manz, Commissioner of
Public Works Adam Kinowski, Deputy HR.
Director
Margaret McNamara,
Director of HR Brian O'Connor, Director of
Finance
Chris Schall, Auditor
Michael Prezioso, Comm. Of
Roger Schiera, Commissioner Health & Addictive Services
of Elections
Shauna Sutton, Deputy
Anna Stanko, Director of Real County Clerk
Property
Carl Zeilman, Commissioner
Michael Zurlo, Sheriff. of Emergency Services

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PRIVILEGED AND CONFIDENTIAL ATTORNEY ·CLIENT COMMUNICATION
(A78 -80.f 5

134. Note that Margaret McNamara appears as disqualified under the ineligible-by-local-

law category. She told us that the payment to her was a system or clerical error because as a

designated officer in the Saratoga County Code, she cannot receive a pay increase unless the Board

of Supervisors passes a local law subject to referendum. Chad Cooke also characterized the

payment to McNamara as a clerical error for this reason.

135. It is not altogether clear whether this was truly a "clerical" error or whether all parties

concerned simply forgot for a time that McNamara and other County "officers" were subject to the

referendum requirement. It is true that the Saratoga County Code designates McNamara's position

as an appointed office (§A400-50) and that, therefore, as a matter of state law, only a local law

subject to permissive referendum can increase her compensation during her term (N.Y. County Law

§201). But as noted, Lisa Masten told us that when McNamara instructed her on the time-and-a-

half policy on March 19, the only County officer who McNamara told her to exclude was the

coroner. (')52, above.) And prior to that, when Hellwig and McNamara described the proposal to

the Law & Finance Committee and full Board on March 17, both of them used broad terms

("everybody," "any county employee") and neither one of them mentioned the exclusion of County

"officers." But regardless of whether the extra pay to McNamara and other officers was a clerical

error or some other kind of oversight, it was reversed through the payroll deductions those

employees took on April 9.

25 The lower table in A78-80 also lists a number of non-color-coded employees who case workers,
cleaners, deputy sheriffs, etc. Those people were not department heads or deputies, they are on the list
because they had other miscellaneous errors associated with the recording of their hours that had to be
adjusted.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
136. Table 1 lists Spencer Hellwig, Chad Cooke, Adam Kinowski and seven other

employees as having been paid in error because they allegedly had preemptively declined the extra

pay. We have no reason to doubt that they declined the time-and-a-half pay, but there is no

documentation indicating when they communicated their declination (whether it was before or after

they received the pay). In Hellwig's case, he tells us that he did not explicitly communicate a

declination of the pay before receiving it in his March 26 paycheck, because he never expected to

receive it-he says he moved to have it deducted from his next check after that. Cooke and

Kinowski told us that they did preemptively ask not to receive the extra pay but it was erroneously

paid to them anyway on March 26, and deducted from their April 9 checks, but there is nothing in

writing indicating when they declined.

137. Nevertheless, regardless of when any of these individuals made their decisions to

forego or return the time-and-a-half pay, their receipt of the pay in the first instance was actually

consistent with the time-and-a-half policy as presented to the Law & Finance Committee and the

Board of Supervisors on March 17. As noted, Spencer Hellwig told the Committee that

"everybody" working in person would receive the extra pay, and Margaret McNamara similarly

told the full Board that "any county employee" coming into work would receive it. Nothing in the

record of those meetings suggests that anyone represented to the Board or the Committee that any

of the individuals in Table 1 would be excluded.

C. Other Department Heads and Deputy Department Heads, from whom the extra pay
was recaptured on April 9.

138. There is one final category of employee who received time-and-a-half for March 16

-19: other department heads and deputy department heads who worked in-person and were eligible

for the time-and-a-half pay, who did not preemptively decline it. (A78, upper table.) Hellwig,

McNamara and Cooke report that the County recaptured the time-and-a-half pay from these

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
individuals in the April 9 paychecks, through wage deductions, after reconsidering whether it was

appropriate to pay upper-level management the time-and-a-half. As noted, McNamara advises that

Hellwig instructed her to do this sometime the week of March 23; Hellwig acknowledges that he

gave that direction and does not dispute her account of the timing.

139. The "Pay Adjustments" Excel furnished by Chad Cooke identifies the following 26

individuals as falling into this category:

Table 2:
Department Heads and Deputies From Whom
Time-and-a Half Was Reca tured After Reconsideration

Cassandra Bagramian Deputy Commissioner of Elections

Steve Bayle Probation Director II

Eileen Bennett Director of Infonnation Tech

Hugh Burke 1st Asst County Attorney

Joseph Carr Youth Bureau Director

Therese Connolly Deputy Clerk of the Board

Sandra Cross Director Office for the Aging

Kelly Devall Deputy Director Animal Shelter

Chris Dubois Deputy Director of IT

Cathy Duncan Director Public Health

Charles Foesher Deputy County Clerk

Penny Heritage Director Animal Shelter

Megan Johnson Deputy Comm of Mental Health & Addie

Jason Kemper Director of Planning

John Marcellus Deputy Commissioner of Elections

Patrick Maxwell Deputy Cornm of Social Services

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Frank McClement Director of Veteran's Services

Jennifer McCloskey WIOA Program Director IT

Cathy Medick Director Patient Services

Scott Near Director of Weights and Measures

D' Arcy Plummer Deputy Treasurer

Dan Rourke Executive Director Sewer District

Thomas Speziale Deputy Commissioner of Public Works

Ed Tremblay Deputy Director Fire/Emergency

John Warmt Director of Purchasing

Pam Wright Clerk of the Board of Supervisors

(A78.)

140. Importantly, it is substantially undisputed that these people were not paid the time-

and-a-half "in error." 26 According to Hellwig, McNamara and Cooke, under the policy as initially

conceived, each of these people were eligible for the time-and-a-half because they were physically

coming into work instead of working from home. This was a retroactive policy reconsideration.

As discussed in Part V, below, that is significant under the New York Labor Law.

141. As discussed above (1107), one of the employees listed in Table 2 affirmatively

complained about having the pay taken back from in the Apri19 check and, McNamara tells us, that

person was credited back the pay (which Lisa Masten confirms). Emails provided to us show that

six others sent emails to HR.'s specialty email address to ask either why they had received less pay

on April 9, or for a broader explanation of what the policy was. The time-and-a-half pay was not

26 Supervisor Pemrick told us during his interview that he assumed from the outset that department
heads and deputies would not be included in the time-and-a-half, but conceded that this "could have been
clearer."
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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
restored to any of those individuals because, according to McNamara, after explanation none of

them objected to returning the pay.

D. Employees Who Received Time-and-a-Half for the March 20- April2 Pay Period

142. In our interview with payroll supervisor Lisa Masten we asked her to run a report

from Kronos detailing which employees received time-and-a-half pay for the March 20 - April 2

pay period. She generated a report providing us with the names of each employee coded in Kronos

as having received the extra pay for that period. (See A81 - 83.) It shows that 35 employees

received it for that period (paid in the April 9 paychecks). Masten confmns that no employees were

paid the time-and-a-half for any pay period after April 2.

V. Leeal Discussion

A. The Administration's Announcement of Covid-Related Time-and-a-Half Pay to


Department Heads and Union Representatives on March 15, Without Prior Approval
from the Board of Supervisors, Was in Excess of their Authority.

As a matter of state law, the power to fix compensation of County employees and officers

belongs to the Board of Supervisors. Section 205 of the state County Law provides that "the

compensation of all employees paid from county funds shall be fixed by the board of supervisors,"

which the Board may do by adopting "schedules of compensation and grades with minimum and

maximum salaries" and/or, where applicable, agreeing to compensation schedules in collective

bargaining agreements. The statute further provides that "the compensation of employees may be

increased or diminished at any time" by action of the Board. /d.

Another statute similarly provides that the Board of Supervisors " shall ftx the salary of all

officers paid from county funds ." See N.Y. County Law §201 (emphasis added). The Board of

Supervisors may only increase or decrease the compensation of an officer during his or her term by

adopting a local law, subject to a permissive referendum. /d. ; and N .Y. Municipal Home Rule Law

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PRIVILEGED AND CONFIDENTIAL ATTORNEY -CLIENT COMMUNICATION
§24(2)(h). The term "officer" includes certain management figures who are either elected, or

appointed by the Board for a fixed term pursuant to local law. See N.Y. County Law §400. In

Saratoga County, "officers" include, the sheriff, county clerk, public defender county treasurer,

coroner, medical examiner, county attorney, county auditor, clerk to the Board of Supervisors,

county historian, commissioner of public works, director of real property tax services,

commissioner of social services, director of veterans' services, weights and measures director,

affrrmative action officer, and personnel officer (human resources director) See N.Y. County Law

§400; and Saratoga County Code Chapter A400. (It may be surprising to some that the County

Administrator is not an "officer," despite the executive nature of his job.) The district attorney is

also a county officer (id.) but the compensation of the district attorney is dictated by state statute

and, thus, the Board does not have discretion over the district attorney's compensation. See N.Y.

County Law §700(11); and N.Y. Judiciary Law §183-a.

It is undisputed that on Sunday, March 15, 2020, the County Administrator, Spencer

Hellwig, held a department head meeting, attended by nearly all department heads, and that during

that meeting he announced that the County would be paying employees coming into work time-

and-a-half for the hours worked in-person (ft9-18). To the best of his own recollection, Hellwig

does not recall being very specific about whether this policy would be limited to non-management

or union personnel, or whether it would also embrace management. But his remarks were

apparently broad enough that a number of people in attendance thought he was telling them that

department heads and deputies would also receive the extra pay (CJI.l2). (And this would be

consistent with Hellwig's remarks to the Law & Finance Committee two days later on March 17,

when he emphasized that "everybody" physically coming into work would receive it.)

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
At that point, department heads were apparently free to inform their staff. For example, that

same day (March 15) at 6:35 p.m., Sheriff Zurlo sent an email a few dozen of his department's

employees notifying them that "Employees required to report [to work] will be compensated at time

and one half for all hours worked." ('11.13) Also that evening, Margaret McNamara notified the

three unions about the policy (TI14-15).

This happened without any action by the Board of Supervisors, or any motion being

presented to the Board of Supervisors. Hellwig did speak with Chairman Allen about the proposal

on March 15 and the Chairman supported it ('11.11). 27 Hellwig also notified the Board by email, that

day, that the Administration intended to launch this policy: "I've reached out to the Chairman to

inform him that we need to move forward with only operating next week with essential employees

as identified by the department heads in conjunction with HR. As Chad reported this step in his

earlier email I would add that with this action will come time and a half pay for the essential staff'

('11.11). But Hellwig's email did not solicit support from the Board, or inform the Supervisors that

word of the extra compensation was already being disseminated to unions and department

personnel.

It is, of course, difficult to overstate the level of alarm that had understandably taken root

by March 15 concerning the contagiousness and rapid spread of the Coronavirus, and its then-recent

appearance in Saratoga County. As a matter of policy, it is not difficult to see how the idea of hazard

pay might arise and some other counties, in fact, did institute hazard pay of one kind or another

near the same time that Saratoga County did. Nevertheless, as of March 15, the decision to offer

hazard pay, or not, belonged to the Board of Supervisors.

27
We note that the day after this activity, on March 16, Chairman Allen declared a state of emergency in
Saratoga County and issued three Executive Orders implementing various emergency measures (A84- 93).
But the March 16 emergency declaration and County executive orders did not specifically authorize time-
and-a-half pay, retroactively or otherwise. The Chairman never issued an Executive Order to that effect.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
B. The Meetings of the Covid Group Did Not Comply with the Open Meetings Law.

As the above factual chronology indicates, one of the challenging aspects of the County's

current predicament is the absence of a clear record of what occurred during the Covid oversight

group' s several meetings. This issue is compounded by the fact that, as a matter of state law, the

meetings should have been open and minutes should have been taken.

The New York Open Meetings Law (Public Officers Law Art. 7) provides that "every

meeting of a public body shall be open to the general public" except for those matters qualifying

for an "executive session" or another statutory exemption. Pub. Off. Law. §103.

Whether an entity is a "public body" turns on various criteria, including "the authority under

which the entity was created, the power distribution or sharing model under which it exists, the

nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal

of its functional relationship to affected parties and constituencies." Smith v. City Univ. of N.Y., 92

N.Y.2d 707, 713 (1999). A group that is merely "advisory in nature" and "d(oes] not perform

governmental functions" is not deemed a "public body" for purposes of the Open Meetings Law.

Jae v. Board of Educ. of Pelham Union Free School Dist., 22 A.D.3d 58 (2d Dep't 2005). By

contrast, "a formally chartered entity with officially delegated duties and organizational attributes

of a substantive nature ... should be deemed a public body that is performing a governmental

function." Smith, 92 N.Y.2d at 713.

In this case, the Covid group was not merely advisory. Resolution 84 vested the group with

"the authority to jointly determine appropriate County staffing levels and rates of compensation[]."

The Resolution did not contemplate the Covid group rendering advice to the Board of Supervisors

about compensation, it empowered the group to make decisions about compensation for the Board

itself, as its designee. If the Board of Supervisors itself were meeting to fix compensation for

County employees, the Board certainly would have to hold that meeting open to the public. It

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
stands to reason that the Covid group, handling that business as the Board's designee, also had to.

Thus, while the Covid group was a novel body, it was also a "public body" for Open Meetings Law

purposes, and there is no serious contention that the business of the Covid group qualified for the

privacy of an "executive session" as defmed in Public Officers Law §105. 28 The Open Meetings

Law also requires the public body to take minutes of all meetings, "which shall consist of a record

or summary of all motions, proposals, resolutions and any other matter formally voted upon[]." Id.

§106. That did not occur here.

We note that on March 12, 2020 the Governor issued the Covid-related Executive Order

202.1, which excused public bodies from having physical, in-person meetings, but the Order still

required bodies to conduct meetings by "conference call or similar service, provided that the public

has the ability to view or listen to such proceeding and that such meetings are recorded and later

transcribed." The meetings of the Covid group were not publicly viewable in this manner, nor can

they ever be transcribed because they were not recorded.

The Covid group's determination to hold closed meetings spurred friction with at least one

of the unions. Leading up to the Covid group's March 25 meeting, PBA' s president, Ryan Mahan,

requested permission to observe the meeting because, in his view, the "meeting directly effects [sic]

all county employees and the negotiated labor agreements." (A30-33.) He was not allowed to

attend. The absence of public access and contemporaneous minutes of the group's activities has

contributed to uncertainty about when the group made certain important decisions (as discussed in

parts D and E below).

23
Section 105 only authorizes executive sessions to discuss matters that will imperil public safety if
disclosed, matters concerning the identity of a law enforcement officer, information concerning investigation
or prosecution of criminal offenses, discussions regarding current or proposed litigation, collective
bargaining negotiations, the medical, financial, credit or employment history of an individual, the grading
of examinations, and municipal real estate transactions.

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PRIVILEGED AND CONFIDENTIAL ATTORNEY ·CLIENT COMMUNICATION
C. We Find no Dlegality in Spencer Hellwig or Margaret McNamara's Participation in
the Covid Group.

Spencer Hellwig and Margaret McNamara were two of the Covid group's five members

charged with making decisions about compensation rates. They also initially received time-and-a-

half pay for the week of March 16 - 19 in their March 26 paychecks before returning it through

payroll deductions from their April 9 paychecks (1[<)[132-37). (They contend that they received the

extra pay on March 26 in error and were never supposed to have received it.) In remarks to the

press some Supervisors have expressed surprise and disapproval regarding Hellwig and

McNamara's posture as being both decision-makers and (at least initially) beneficiaries of the Covid

group's actions. One can argue about whether that was good or bad policy, but we see nothing in

it that implies illegality.

The County has adopted a Code of Ethics pursuant to N.Y. General Municipal Law §806.

It is found in Chapter 42 of the Laws of Saratoga County. The Code is mostly concerned with

conflicts of interest arising from business transactions between the County and an official's relatives

or with a business in which the official holds an interest. See Saratoga County Code §42-2 and 42-

3 (defming "conflict of interest" to mean a pecuniary benefit to the official by virtue of a contract

between the County and his/her spouse or family, or a firm or corporation in which the official is

interested). However, the Code does include a broad, catch-all provision which prohibits any

County official or employee from:

tak[ing] action . . . on a matter before the County or any ...


instrumentality thereof when, to his or her knowledge, the
performance of that action ... would provide a pecuniary benefit to
himself or herself.

/d. §42-3(A)(6).

Hellwig and McNamara were County employees, on County payroll, and were working in-

person rather than remotely. Therefore, their decisions as members of the Covid group as to

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
whether all in-person workers would receive time-and-a-half pay, or not, could result in a pecuniary

benefit to them.

However, the Board of Supervisors itself unanimously approved Resolution 84 on March

17, specifically naming Hellwig and McNamara to the Covid group. Resolutions adopted by a

county board of supervisors are county law. See N.Y. County Law §153(1) and (5). Moreover, a

board of supervisors has broad discretion to "amend, repeal or supersede any local law or resolution

theretofore adopted," including, without limitation, portions of its code of ethics. /d.

§153(6)(emphasis added). Although Resolution 84 by no means "repealed" the Code of Ethics, it

is hard to imagine that the Code barred Hellwig and McNamara from serving on the Covid group,

when the Board of Supervisors itself issued a brand new, specialty resolution on March 17

(Resolution 84) specifically appointing them to that body. Here again, the Board of Supervisors

has the authority to pass resolutions superseding prior enactments.

In addition, Supervisors approved the Resolution after being told in open meetings that the

Covid group' s first order of business, in effect, would be to authorize time-and-a-half pay for all

County employees physically coming into work, with no restrictions based on tier. The audio

recording of the March 17 Law & Finance Committee meeting shows that Hellwig told the

Committee that "everybody" working in-person would receive the extra pay:

Supervisor
Kusnierz: Just on that subject, for clarification, is that applicable
to salaried individuals?

Hellwig: Everybody.

Kusnierz: Salaried and .. .

Hellwig: Everybody.

And during the full Board meeting of March 17, McNamara said essentially the same thing:

Supervisor

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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
Barrett: Is it, and who exactly is covered by this provision?

McNamara: So it is anybody who is coming in to work. Currently.

Barrett: Anybody? Any county employee?

McNamara: Any county employee.

Possibly some Supervisors subjectively assumed that "employee" only meant non-

management personnel (i.e., it excluded department heads, deputies and elected officials and the

like). Supervisor Schopf told us that is basically what he thought. Anyone may hold subjective

connotations that they associate with a word like "employee," but ultimately the words "every

County employee" literally mean every County employee. Therefore, Spencer Hellwig's receipt

of the extra pay was consistent with that disclosure (even though he says he received the pay in

error). And in any event, Hellwig consented to return the extra pay through payroll deductions that

were made on April 9.

McNamara's case is somewhat different, because as noted Saratoga County Code §A400-

50 designates the human resources director ("personnel officer") an "officer" of the County. There

was no discussion of that detail at the March 17 Committee and Board meetings, and no discussion

of whether that meant that McNamara was excluded from the broad allowance for "any County

employee" working in-person. But whether anyone realized it or not, as a matter of state law her

compensation could only be adjusted by legislation subject to referendum. See N.Y. County Law

§201; and N.Y. Municipal Home Rule Law §24(2)(h). McNamara received time-and-a-halfforthe

week of March 16 - 19 in her March 26 paycheck and reversed it by a payroll deduction in her

April 9 paycheck. MeN amara contends that her receipt of the pay in the first place was an error

and that she knew she was disqualified from receiving it all along. Another possibility is that

McNamara overlooked the referendum requirement and realized after-the-fact that she was

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ineligible to receive the time-and-a-half. 29 The distinction is ultimately immaterial, however,

because the payroll supervisor has verified that McNamara returned the money in her next paycheck

(April 9). The net result is that McNamara's final compensation was in line with the County' most

recent local law setting her salary (Local Law No. 1 of 20 19).

D. The Uncertain Circumstances and Timing of the Covid Group's Decision to Eliminate
Time-and-a-Half for Most In-Person Employees for the March 20 April2 Pay Period
Presents Risk Under the New York Labor Law

The New York Labor Law, somewhat axiomatically, provides that an employer must pay

the employee "the wage to which he or she is entitled []," and failure to do so may result in

significant penal tie . See N.Y. Labor Law § 198( 1-a). These penal tie are not limited to the failure

to pay simple minimum wage or overtime. Rather, for the e purposes, "wages" are defmed to mean

any "earnings of an employee for Labor or services rendered, regardless of whether the amount of

earning is determined on a time, piece, commis ion or other basis." !d.§ 190(1)(emphasis added).

New York courts have held that " wages" include any compen ation that is tied to the "labor or

service personally rendered" by the employee, as opposed to profit-sharing or di cretionary bonus

structures that are based on overall corporate performance. See Ryan v. Kellogg Partners lnst.

Services, 19 N.Y .3d 1, 16 (2012); see also Brennan v. J.P. Morgan Securities, Inc. , 7 Misc.3d

1013(A), at *2 (S. Ct. N.Y. Co. 2004)("Whether compensation constitutes wages or something else

depends not upon the title of the employer's plan, but upon whether the compensation is ve ted and

mandatory as opposed to discretionary and forfeitable.").

An aggrieved employee who is denied "wages" to which he or she "is entitled" may sue for

the lost wages in a court of law , or initiate an administrative complaint with the New York State

Department of Labor, which may hold an administrative hearing. See Labor Law §198. lf the

29 According to the payroll supervisor, Lisa Masten, when McNamara instructed her to set up the time-
and-a-half protocols in Kronos, Lhe only County officer who McNamara aid to exclude was the coroner.

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employee prevails, he or she is awarded damages equal to the underpayment, and: (i) if the tribunal

fmds that the employer did not have a "good faith basis" for believing the underpayment was lawful,

it may double the damages; and (ii) if the tribunal fmds that the violation was "willful," it may triple

the damages. See N.Y. Labor Law §198(1-a). If the employee prevails, the tribunal also awards

him or her damages for attorneys' fees. /d. The statute of limitations for an employee to invoke

these remedies is six years from the date of underpayment. /d. §198(3).

Normally the "wage" to which someone "is entitled" is recited clearly in a written record

pursuant to Labor Law § 195 which the employee signs at the time of hire. The wage rate may also

be specified in an employment agreement or collective bargaining agreement. In those cases it is

fairly easy for the employee to prove what his or her agreed-upon wage rate was. But there is

nothing that per se bars reliance on oral compensation increases, or compensation increases

announced by email or other informal means. The nature of the Covid-related time-and-a-half is

arguably murky, because it was never enumerated in detail in a defmitive communication to all

employees-rather, it was first announced orally to department heads at a March 15 meeting ('JI12)

and then announced orally to union representatives the same day (Tf14-15). The department heads

and union representatives may have varied in what they told their constituencies and when, but at

least some, such as the Sheriffs Department, announced the policy to their personnel in writing as

early as March 15 (<[13). However uneven the rollout of the time-and-a-half policy may have been

from group to group, the extra pay clearly resembles "wages" much more than any kind of

discretionary compensation like a bonus program. This was not extra pay in the nature of a profit

share flowing from an enterprise's overall performance, it was compensation that was directly tied

to the "labor or services personally rendered" (Ryan, 19 N.Y.3d at 16) by the employees physically

coming into work. Indeed, that is how it was calculated: by tracking the number of hours the

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employee worked in person, and paying time-and-a-half for those hour . Therefore, the time-and-

a-half pay i best characterized as part of those employees' "wages," which are vested when earned

(i.e., when the hours were worked). Therefore, an employee who expected time-and-a-half for the

March 20- April 2 pay period, but didn't receive it, could plausibly claim that the extra pay was

unpaid "wages," and could potentially seek the extraordinary remedie described above.

In this case, the Covid group maintains that it decided to end the time-and-a-half pay

effective as of the beginning of the March 20 - April 2 pay period, for all employees except for

command center per onnel (which were people). They contend that they made this deci ion on

March 19. However, as discus ed in detail in the above chronology, there is no contemporaneous

documentation of that decision on March 19, and there are subsequent document from which an

adversarial attorney could at least sew doubt as to whether the deci ion occurred on March 19 or

sometime later in the pay period. On March 19 Chad Cooke emailed department head and

informed them that County was maintaining the status quo at lea t into the next week-i.e., that

physically present workers would be paid time-and-a-half. (<Jrll57). Press releases generated by the

Administrator' office after that continued to refer to everal hundred employees receiving the extra

pay, not merely command center workers (<Jrll60, 72). The first open, written notice of limiting the

extra pay to command center personnel was Chairman Allen's announcement on the County

website, which did not arrive until March 31 (<J[92). Several department heads or deputies have told

us that they were under the impression, as of March 31, that all employees in their departments

were receiving time-and-a-half for hour worked in-person during that pay period (<Jrll93-95).

McNamara advised them about the change in a department head meeting that day, March 31, and

told them that the change was effective back to March 20 (<Jrll93-94). And the payroll supervisor,

Lisa Masten, had no idea about the change of policy until April 2, and actually made the adjustments

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in Kronos (to end time-and-half for non-command center personnel) over the weekend of April4-

5 which was after the pay period ended. (<Jil 02, above). Whether the Covid group made the decision

on March 19 or some time after that, from a public record stand point the group may as well as have

made the decision as late as March 31.

We acknowledge that Margaret McNamara says that she told the three union representatives

about the change in policy on March 19. But here again, those communications are not

contemporaneously documented, one of the unions, PBA, vehemently denies it and, for reasons set

forth above, the email statements of the CSEA and UPSEU representatives can be read different

ways-we have difficulty interpreting those emails definitively without interview access to those

unions (tl[lll-18). Moreover, text messages supplied by an outside source-Ryan Mahan of

PBA-would suggest that the CSEA and UPSEU emails should at least be read as inconclusive as

to when they learned that the time-and-a-half pay ended for non-command center personnel on

March 19 ('1'1119-23).

Furthermore, even if McNamara did tell the unions on March 19, that is not necessarily an

effective or timely means of putting the County employees on notice of the change in policy. Not

all County employees are in unions, and in any event the County has no control over when or how

the unions might communicate with their membership. Obviously the most clear and direct way to

deliver the message would have been to send an email directly to all department heads (or better

yet, all employees) informing them of the change in writing. But department heads were not

informed in writing until April2 (<ftl01).

This leaves the County with the lingering possibility of legal action by employees who may

feel aggrieved about what they might perceive as a retroactive reduction in the rate of pay. There

are murky fact questions here which preclude us from saying that this is a clear cut violation of the

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Labor Law. If litigated, there would be contestable questions of fact about which employee factions

understood what and when. But the risk of potentia/liability exists.

E. The Recapture of the Time-and-a-Half Pav from Department Heads and Deputies for
the Week of March 16-19 Did Not Comply with the New York Labor Law.

In the March 26 paychecks, the County paid time-and-a-half to department heads and deputy

department heads who were working in person, and then recaptured that extra pay through

deductions from wages in the April9 paychecks. (See Tl.138-41.) From what we are told, at least

26 of those department heads or deputies did not preemptively decline the time-and-a-half, and they

were notified by HR. on April 9, for the first time, that this pay would be recaptured from them.

(See Table 2, 1106 above.)

The New York Labor Law limits the circumstances in which an employer can make

deductions from wages. See N.Y. Labor Law §193. Generally, deductions may only be taken to

fund employee benefits (such as authorized contributions toward health insurance or pensions) and

respond to garnishments, except for the following allowance for deductions that

are related to recovery of an overpayment of wages where such


overpayment is due to a mathematical or other clerical error by the
employer

/d. §193(1)(c).

The issue with the 26 department heads or deputies in Table 2 (<[139) is that there is no

evidence that their receipt of time-and-half in the March 26 paychecks was a "mathematical or other

clerical error." On the contrary, Hellwig, McNamara and Cooke told us that these people were

eligible for the extra pay as the proposal was initially conceived, but some members of the Covid

group reconsidered the wisdom of paying the time-and-a-half to upper level management after-the-

fact. Moreover, nothing in the presentations to the Law & Finance Committee or full Board on

March 17 suggested that department heads or deputies would be ineligible, nor have we seen any

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other contemporaneous policy document, published to anyone, that disqualified department heads

or deputies for the week of March 16 - 19. Therefore, their receipt of the extra pay in the March 26

paychecks does not present as a mathematical or clerical error, it presents as a deliberate policy

choice that the administration retroactively reversed after reconsideration.

With respect to the 22 employees listed in Table 1 (')[81), Hellwig, McNamara and Cooke

contend that those individuals were paid due to clerical errors because, as noted, some of them are

on a compensation schedule fixed in local or state law, and the rest purportedly, preemptively

declined the extra pay. However, this is also poorly documented. We would agree that County

"officers" whose pay must be adjusted by local law subject to referendum and the district attorney

(whose pay is set by state statute) should not have received the extra pay and it was appropriate to

correct that-but there are no documented instructions to clerical staff that these employees should

have been excluded from the extra pay. And as for the other department heads or deputies who we

are told preemptively declined the extra pay, the record is not as clear as it could be either because

those declinations are not in writing. Although we note that Hellwig Cooke, Kinowski and Dorsey

all told us that they did, in fact, decline the extra pay, and Undersheriff Castle, Commissioner Potter

and Commissioner Manz told us that they did not want it and had no objection to it being taken

back.

In addition, when an employer does deduct wages to offset a mathematical or clerical error,

New York Department of Labor regulations dictate certain procedures. See 12 NYCRR §195-5.1.

The regulations require the following:

• Notice. The employer must give the employee at least three days' advance notice
before making the deduction. That did not occur here. McNamara tells us that she
briefed department heads and deputies in a meeting on April 9, which is the same
day that the County deducted the wages.

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• Opportunity to Contest. The notice must also inform the employee that he or she
may contest the alleged overpayment, and provide the employee with the date by
which he or she must contest it. In this case, HR did set up a specialty email address
through which affected employees could express questions or concerns, but there is
scant documentation about how the purpose of this channel was explained to
employees.

• Response, Reply and Meeting. The employer is required to respond to the


employee's objection within 1 week, with a "clear statement indicating the
employer's position with regard to the overpayment," and the reasons why the
employer agrees or disagrees with the employee' s objection. The employee must
then receive a period of at least 1 week to reply to the employer' s response, and be
given an opportunity to meet with the employer to discuss the issue. As noted, one
employee affirmatively complained about the deduction and several others asked
questions about it. Although the complaining employee apparently won a reversal
of her deduction, there is no documentary evidence of formal exchanges and
conference required by the regulation (with that employee or any of the others).

• Written Notice of Final Determination. Within 1 week after the meeting, the
employer must make a final, written determination about whether an overpayment
actually occurred, and stating the reasons for it.

The regulation provides that "The failure of an employer to afford this process to the employee will

create the presumption that the contested deduction was impermissible." Id. §195-5.1(h). The

implementation of the COVIDBenefits@saratogacountyny.gov was a partial measure that did not

comport with all requirements of the regulations. It is now weeks after the fact and apparently no

other department heads or deputies have pressed objections to the reversal of the pay-it is possible

that that potential storm has passed, but the statute of limitations is a long one, at six years.

Therefore, we would be remiss if we did not observe that the potential for a complaint exists.

VI. Conclusions
The Administration's announcement of a policy to pay time-and-a-half compensation to

department heads and unions on March 15, 2020 was without authorization from the Board of

Supervisors. The authority to fix or modify the compensation of County officers and employees

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rests squarely with the full Board. See N.Y. County Law §§201 and 205. The Administration did

not have lawful authority to make the announcements of March 15.

The Covid oversight group constituted a "public body" within the meaning of the New york

Open Meetings Law. As such, it was required to holds its meetings open to the public and to keep

minutes of the meetings. Here, the lack of public access and certainly the absence of any meeting

minutes has contributed to substantial uncertainty about when and how the Covid group made the

important decision to modify the time-and-a-half policy for the March 20 - April 2 pay period.

As a general matter, the Covid group's decision to eliminate time-and-a-half pay for the

March 20 - April 2 pay period, for nearly all employees except those working in the conunand

center, is very poorly documented. The group says that it made this decision on March 19, but even

if that is true there was no public disclosure of the change until March 31, and also no defmitive

notice to the department heads as a group until March 31. It is possible that some department heads

heard through the grapevine earlier that this change was afoot, but clearly there was no pervasive

notice until March 31. With a six year statute of limitations for employees to file claims for

underpayment of wages, there is a lingering possibility aggrieved employees could assert claims

for unpaid time-and-a-half for the March 20- April2 pay period. McNamara's alleged oral notice

of the change to the unions on or about March 19 is undocumented and too contestable for us to

give it much credit for the purposes of mitigating potential liability.

Ultimately, we find no illegality in Spencer Hellwig or Margaret McNamara's participation

in the Covid group and their initial (but subsequently reversed) receipt of the time-and-a-half pay.

The Board of Supervisors unanimously adopted Resolution 84 on March 17, naming Hellwig and

McNamara to the Covid group, after being told in a public meeting that the forthcoming time-a-

and-a-half policy would apply to "any county employee" physically coming into work. That

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description ("any county employee") certainly covered Hellwig, and would have covered

McNaamara as well except for a detail that no one seemed to notice (or at least comment on) during

the March 17 meetings-that McNamara falls into the "officer" class for which the N.Y. County

Law requires legislation subject to referendum in order to change her compensation rate. But in

the case of both Hellwig and McNamara, the extra pay was ultimately recaptured from them with

their consent.

The County's recapture of time-and-a-half from the department heads and deputies for the

week of March 16- 19, through payroll deductions on April9, did not comply with the New York

Labor Law's restrictions concerning deductions from wages. Deductions are allowed only to cure

clerical or mathematical errors. At least for most department heads and deputies, the extra pay to

them for March 16 - 19 was not a clerical or mathematical error, it was a deliberate part of the

policy, which members of the Covid group substantively amended after the fact. In addition, the

manner in which the County executed the recapture of the pay did not comply with the notice and

procedural requirements prescribed by New York State Department of Labor regulations.

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