ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
IN THE MATTER OF an application under section 116 of the Police Services Act, R.S.O. 1990, c. P. 14 as amended
PEEL REGIONAL POLICE ASSOCIATION Applicant
PEEL REGIONAL POLICE SERVICES BOARD Respondent
Presiding Members: Barbara Morland Wellard, Member Michele J. Shephard, Member
Appearances: Barrie Chercover, Counsel for the Applicant Paul S. Jarvis, Counsel for the Respondent Marion Reeves, Fitness Coordinator
Hearing Date: August 3, 1999 and October 5, 1999
This is an application by the Peel Regional Police Association (the “Association”) pursuant to section 116 of the Police Services Act, R.S.O. 1990, c. P.15 as amended (the “Act”) to determine the status of Marion Reeves.
Background:
In 1981 Marion Reeves was a co-op student from the University of Waterloo. She worked for the Peel Regional Police Service (the "Service") to provide a fitness program for police officers. Upon graduation in 1982, Ms. Reeves wrote a proposal to the Peel Regional Police Services Board (the “Board”) suggesting that they offer her a 1-year contract to set up an on-going fitness program.
The Board accepted her proposal and agreed to pay her once a month by cheque. At the time no other police force in Ontario had their own fitness program. Ms. Reeves was provided with a civilian police badge so she would be allowed ready access to the police facilities.
In 1983 Ms. Reeves registered the company name “Life Fit Services” and from that date billed the Board under that name. The first formal contract offered in evidence was dated December 19, 1994. It was between the Board and Life Fit Services.
On March 3, 1995 Lynn Dobson, Executive Director of the Association wrote a letter to the Board asking for a list of civilian members designated as “Senior Officers”. This list was supplied on March 14, 1995 and did not include Ms. Reeves.
Ms. Dobson wrote a further letter on September 8, 1995 stating that she understood the Fitness Coordinator was negotiating her own contract and requested copies stating that individual contracts are not contemplated by the Act.
On April 1, 1996 a Joint Board/Association Committee evaluating jobs reviewed six different positions, including Fitness Coordinator. The Committee advised Ms. Dobson on July 24, 1996 that the Board would be entering into further contracts with Life Fit Services for the provision of health and fitness services.
On July 23, 1996 Ms. Dobson wrote to Mr. D. Bowman, Acting Director – Human Resources for the Service stating that the position of Fitness Coordinator held by Ms. Reeves had been designated as belonging to the Association.
Mr. Bowman’s August 12, 1996 response in part was:
At the outset of your correspondence, you state that the position of Fitness Coordinator had been designated as falling within the position for which the Association holds bargaining rights. I am unaware of any such determination having been made, however it appears to me the real issue is whether the incumbent is a Civilian member of the Peel Regional Police consistent with Article 1.02 of the Civilian Collective Agreement, or whether the incumbent, as principal of the firm Life Fit Services, acts as an out-sourced provider of services to the Police Services Board through a contracted service arrangement. From 1982 the Board has contracted for the provision of a wide variety of health and fitness services, such as classroom instruction, fitness testing for recruit applicants and Service members, and maintenance of a stress testing program and consultation on injury referrals and rehabilitation. Accordingly, it remains the Board’s position that by virtue of its contracted relationship with Life Fit Services, Ms. Reeves is not a member of the Association.”
On September 1, 1996 the Board and Life Fit Services entered into a new contract running from September 1, 1996 to December 31, 1997. This contract contained modifications, but generally included the same duties and responsibilities as the earlier agreements.
On January 3, 1997 the Association filed a Grievance stating that:
Marion Reeves is a member of the Civilian Bargaining Unit. The Police Services Board has unilaterally removed her from that Bargaining Unit, contrary to the Police Services Act and to the Civilian Collective Agreement by entering into a personal employment contract with Ms. Reeves. In so doing, the Police Services Board has ignored the Association’s right as exclusive bargaining agent for all members who are not senior officers and has likewise attempted to evade its obligations and the Association’s rights under the Collective Agreement.
Sometime prior to March 3, 1998 Ms. Reeves was assigned a new badge number with a “Non Employee” designation.
Responsibilities:
The specific duties of Life Fit are described in Schedule "A" to the Agreement. They require the development and implementation of:
Fitness training programs for the Service. This will include classroom instruction and subsequent application of the principles taught in the areas of general fitness.
Regular fitness testing program for applicants and Service members, as required.
Continue to develop and maintain a healthy lifestyle program for members over 40 years of age ("Forever Fit").
Maintain the equipment used in the various programs in a safe and operable condition.
Provide advice and recommendations for budgeting for fitness, health and sports programs and equipment.
Compile program related statistics such as member participation, injuries, program frequency, programs offered, etc.
Develop Peel Regional Police Service staff instructors for fitness programs.
Develop medium and long term fitness goals and objectives for the fitness programs and the requirements of the Service.
Act as an advisor to the Board, as required.
Conduct lectures for the benefit of members of the Service, and any other group requested and approved by the Senior Officer-in-Charge.
Maintain a resource file of information pertaining to fitness and related topics.
Implement and maintain a comprehensive stress testing program.
Continue to develop and maintain a health awareness program for all employees of the Peel Regional Police Service.
Examine and initiate fitness related programs with a family orientation.
Act as a resource for injury referrals and rehabilitation.
Supervise community based fitness events where the Service is involved.
In addition to fulfilling the responsibilities outlined in her contract, Marion Reeves has continually performed other duties on behalf of the Service. Ms. Reeves is a member of the Peer Support Team. She has been so since 1995. This program was developed by the Service as part of its Critical Incident/Peer Counseling Program. It was created to compliment the Members’ Assistance Plan (the “MAP”), which provides professional support to members who are experiencing problems at work and at home (i.e., alcohol and drug abuse, stress, marital problems, etc.).
A Peer Support Team Member is defined as “a member, retired member or auxiliary member who volunteers, is authorized by this Service to act in a support service capacity and completes a prescribed course of instruction provided by an approved mental health consultant”.
Ms. Reeves completed the qualifying training for membership on the Peer Support Team. She is recognized by the Service as a representative from the Fitness Bureau.
Ms. Reeves is presented by the Service as a member of the Service Fitness Bureau, when she conducts external training such as for the Ontario Provincial Police Academy in December of 1997.
Ms. Reeves has identified herself as a representative of the Service to external agencies not involved in policing. In the listing of members on the YMCA - Women of Achievement Awards Committee she identified herself as a member of the Peel Regional Police and not as the owner/operator of “Life Fit Services”. In numerous articles published by the Service, Ms. Reeves is identified as a member of the Fitness Bureau or as the Fitness Coordinator.
Other programs in which Ms. Reeves is involved include a "Children’s Week” and “Children’s Day” training for the teenage children of members; nutritional analysis for individual members; maintenance of resources and information for employees; and monthly awareness campaigns. The Service selected Ms. Reeves as the member who maintains these programs on behalf of the Service.
The Service also designated Ms. Reeves to maintain a summer day program for the children of members run and subsidized by the Service. She has also been assigned to participate in the organization and arrange non-fitness related events such as the Annual Pumpkin Carving and the “25th Anniversary Committee”. All of the other members of the committees are members of the Service and are listed according to their Divisions or by their assignments. Ms. Reeves is listed as the member from “Fitness”.
She is also involved in the sub-committees for merchandise, community events and family events. She is an active member of the Peel Regional Police Mental Health Committee and is responsible for the co-ordination of the “Employee Wellness” programs. She is not remunerated for her involvement in any of these committees.
Issues:
On March 13, 1998 Mr. Chercover on behalf of the Association requested that the Ontario Civilian Commission on Police Services (the “Commission”) conduct a hearing to determine the status of Ms. Reeves in accordance with Section 116 of the Act. It provides:
116(1) If there is a dispute as to whether a person is a member of a police force or a senior officer, any affected person may apply to the Commission to hold a hearing and decide the matter.
(2) The Commission’s decision is final. Section 2 defines “member of a police force” as:
“a police officer, and in the case of a municipal police force includes an employee who is not a police officer”.
If it is determined that a person is a “member” then they are obliged to participate in the bargaining conciliation and arbitration regime set out in Part VIII of the Act.
The Hearing:
Over the course of two days we received both oral arguments and detailed written material from both parties. As well, we heard oral testimony from Marion Reeves. She described in detail the nature of her working arrangement.
Ms. Reeves stated that she is the owner of Life Fit Services and does not consider herself an employee or member of the Service but as an independent contractor.
To this end she notes that she has an office and a dedicated phone line for Life Fit at her residence in Aurora and a business card for Life Fit.
She supplies services to many other organizations including MCI Medical Services, Family Services of Peel and Fairview Lodge.
She acquires these contracts through networks and organizations that she belongs to, (all membership fees are paid through Life Fit) one of which is Worksite Health Promotion where she is listed as: Marion Reeves - Life Fit Associates.
In the early 1990’s she had a 3-year contract with York Regional Police to provide similar services to those that she provides to the Peel Board, such as testing, training, incentive programs, sports and special events. The contract was not extended due to cutbacks.
She hired, fired and supervised staff for this project. Staff was paid by Life Fit and if full time, deductions for EI, CPP and tax were remitted to Revenue Canada. Other staff were hired as sub-contractors or they invoiced Life Fit for services rendered.
Some days she would be at York and some days at Peel. It was her choice. She did not seek or feel that she needed Peel’s consent to enter into this contract.
She was also issued a badge and number by York in order to access different sites.
She also consulted with the Ottawa-Carleton Regional Police Service and the Hamilton-Wentworth Regional Police Service, both of whom decided to enter into a contract for fitness training with their local YMCA’s.
At Peel, she does not receive day-to-day direction, performance appraisals, overtime compensation, benefits or pension.
When asked if she could be disciplined as police officers who do other jobs outside the force (private security, installing alarms etc.), she said that if there were any problems her contract could be terminated.
She usually has 2 co-op students working for her, at least 1 paid. Co-op students receive $7,000.00 for 4 months work, payable by Life Fit. Every quarter she spends about 4 hours reading the co-op resumes, about 1 day for interviews and then another 4 hours to write evaluations. She would advise Human Resources of any students working for her so they could do background checks for security reasons.
She does all of the scheduling and usually works about 40 hours per week for the Service which is about 75% of her total work hours. The Board pays about 70% of her total income. She explains her other duties, by saying that she feels that it is worth putting in extra hours for the prestige of having the contract with the Board.
She manages the Services’ fitness equipment and determines what needs repair or replacement. She hires people to do the repairs and the Board pays the bills. She provides some equipment to Peel such as her resource library.
She has been a member of the Peel Support Team since 1994. She feels that she was doing peer counseling before the program started as she had connections for 18 years with staff who find her non-threatening and often approached her for help. She was asked to join this program, does not receive any compensation and often puts in many hours of her own time.
She has been offering a children’s program at Peel since 1982 for ages 6-12. Children 13-17 can be involved as volunteers. It is operated on a break-even basis. Cheques are made out to Marion Reeves and she pays for craft supplies, buses, etc. Any money left over is given as an honorarium to the young volunteers. She took training and has approval to drive police service vehicles as she often has to take the children in a van to swimming.
Revenue Canada audited Life Fit in 1995 and did not challenge her business status.
Applicant’s Position:
Mr. Chercover, on behalf of the Association, has asked the Commission for a declaration that Marion Reeves is a “member” of the Service and accordingly a member of the Association.
Section 2 of the Act defines “member of a police force” as a police officer and in the case of a municipal police force includes an employee who is not a police officer.
He stated that while Marion Reeves is not a police officer she is clearly an “employee” notwithstanding on contract.
He notes that she is always accountable to the Officer-in-Charge as set out in her contract and must maintain records, execute any requested documents, provide a master copy of evaluation sheets, lesson plans and any other program forms used by Life Fit to the Officer-in-Charge.
She has security clearance, an office, a telephone and submits time sheets to the Service. The number of hours required by her contract (2080) corresponds with normal full-time employment.
Mr. Chercover acknowledged that Ms. Reeves performs work for other police services. However, he notes that many police officers have secondary employment at jobs other than law enforcement. He states that Ms. Reeves’ outside work should be considered in the same way.
He suggests that Ms. Reeves' position is similar to that of a "dependent contractor" as set out in section 1 of the Labour Relations Act, S.O. 1995, Col. Sch. A. He directs our attention to the test developed by the Ontario Labour Relations Board to assess employment status.
He argued that the Board should not be permitted to use its power to contract under section 30(1) of the Act to frustrate the labour relations scheme in the Act. He suggested that the Board's power to contract must be limited to its regulation and policy setting function. He also argued that boards should not be permitted to create contractual relationships to perform operational functions and a new class of "employees" not bound by the general provisions of the Act.
Mr. Chercover, in support of his position, cites Hamilton Carpet and Tile Inc. [1997] O.L.R.B. No. 4290 (QL) at para. 24, Niagara Region Police Association and Niagara Regional Police Services Board, (21 March 21, 1997, O.C.C.P.S.), Montreal v. Montreal Locomotive Works Limited 1946 CanLII 353 (UK JCPC), [1947] 1 D.L.R. 161 (P.C.), at 169 and Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R. (2d) (C.A.).
Respondent’s Position:
Mr. Jarvis on behalf of the Board states that Marion Reeves is not a “member” in as much as she is not an employee. Rather, she is an independent contractor.
He points out that Marion Reeves is the principal of a sole proprietorship. Life Fit provides fitness and wellness services for the Service pursuant to a contract with the Board.
The nature of the fitness and wellness services provided by Life Fit are set out in Schedule “A” of the Agreement. The independent contractor relationship between Life Fit and the Board is set out in the agreement.
Specifically, sections 16 and 17 of the agreement state:
Life Fit is an independent contractor supplying services and shall not be considered an employee of the Board, nor shall the servants, agents or employees of the Agency be considered employees of the Board.
All personnel used by Lift Fit in the performance of its obligations hereunder shall be under the control and direction of Life Fit and shall not be employees or agents of the Board. Life Fit agrees to indemnify and hold harmless the Board from any and all losses, damages, costs and expenses (including reasonable solicitors’ fees) suffered or incurred by the Board on account of any claim made against the Board by any partner, former partner, employee or agent of Life Fit in connection with the performance by the Board of its obligations under this Agreement.
He noted that consistent with the status of an independent contractor, Life Fit employs its own staff. Life Fit employs Marion Reeves on an ongoing basis and an Assistant Fitness-Wellness Coordinator. She assists in the services provided to the police force. A day camp employee and other part-time staff do work for Life Fit’s other clients.
He argued that Marion Reeves is not an employee of the Board, but rather a knowledgeable expert whose services are freely available on the open market to those who wish to gain access to that expertise. As with her other clients, her relationship to the Board is as an independent contractor through the vehicle of her business, Life Fit. He noted that the Board also has contractual relationships with the company that runs their cafeteria and with a law firm to handle their legal matters.
He states that while such training for firearms and use of force are mandated by law, fitness training is not. Given that police employers do not have to offer this service it should be seen as ancillary. He notes that other police services such as Ottawa Carleton Police Service and Hamilton-Wentworth Regional Police Service contract out their Fitness Training to the YMCA. He suggests that this is a similar arrangement.
Mr. Jarvis, in support of his position cites: Montreal v. Montreal Locomotive Works Ltd. (1947) 1946 CanLII 353 (UK JCPC), 1 D.L.R. 161 (P.C.), Mayer v. Conrad Lavigne Ltd. (1979) 27 O.R. (2d) 129 (C.A.), Algonquin Tavern (1981) OLRB Rep. Aug. 1057 and Stephenson Jordan & Harrison, Ltd. v. MacDonald et al., (1952) 1 T.L.R. 101.,
Decision:
The issue before the Commission is whether Marion Reeves is a “member” of the Service. If we find that she is an “employee” and not an independent contractor, then she would automatically be a “member” and thus be obliged to join the Association.
We have looked at a number of cases recommended by the Applicant and the Respondent. In our view the most helpful decision was Algonquin Tavern. In that case the Ontario Labour Relations Board identified a number of criteria to be considered when determining employment status. While somewhat detailed, we believe that the criterion identified at page 1082 of that decision are worth repeating:
A. The use of, or right to use substitutes. It has been considered inconsistent with an employment relationship if one could fulfil the bargain with someone else’s labour rather than one’s own work and skill. This is significant however, only to the extent that it is the alleged employee who makes that decision.
B. Ownership of instruments, tools, equipment, appliances, or the supply of materials. These factors indicate something in the nature of a capital investment so that gains or losses will depend upon something other than the individual’s own labour. On the other hand, reliance upon another’s financial loss on capital infrastructure for the essential tools necessary for performance of the work is more likely to be associated with an employment relationship.
C. Evidence of entrepreneurial activity. This factor is closely associated with ownership of tools and encompasses self- promotion, advertising, use of business cards, soliciting to develop “clients”, the use of agents, and organizing one’s “business” (by incorporation or otherwise) to take advantage of limited liability or the tax laws. It may be significant whether the individual has a “chance of profit” or “risk of loss”, that it whether business acumen, sensitivity to the needs of the market, astute investment, innovation, or risk taking, yield a reward or financial loss.
D. The selling of one’s services to the market generally. If the purchasers of individual’s services are numerous and of diverse character, the individual looks more like an independent self-employed person than an employee. If, on the other hand, an individual has a long-standing and consistent relationship with one or a limited number of purchasers, he is more likely to be considered a “dependent” contractor or employee – especially if the circumstances or contractual relationship limit his ability to dispose of his skill to other purchasers, or his “prime customer” is given priority.
E. Economic mobility or independence, the freedom to reject job opportunities, work when and where one wishes. Of course, few independent contractors are entirely free in this regard, but the question is one of the degree. A “self-employed” person has more scope for choice than an employee or dependent contractor who must look for the bulk of his work opportunities to one or restricted number of sources with whom he has “tied his fortunes”.
F. Evidence of some variation in the fees charged for the services rendered. This factor is less helpful when those services are standardized and the market is relatively competitive. In such circumstances, one would expect a uniform fee structure even if the individual providing the service were doing so as “independent contractors”, and individual employees may also bargain about their wage levels; however, the ability to bargain or fix the contract fee in accordance with the work or the purchaser’s ability to pay, may indicate independent contractor or self-employed status.
G. Whether the individual can be said to be carrying on an “independent business” on his own behalf rather than on behalf of an employer or, to put it another way, whether the individual has become an essential element which has been integrated into the operating organization of the employing unit.
Integration in this sense usually presupposes a stable rather than a casual relationship and also involves the nature, importance and “place” of the services provided in the general operation of the employing unit. The more frequent the re- engagement or longer the duration of the relationship, the more likely the individual will be regarded as part of, or integrated into, the employer’s organization. Even an individual engaged for a short time may be considered “integrated” into the employer’s cooperation in the manner of an employee, if he is required to devote the whole of his working time during the period to the service of the employer, promote its organization, or fill in his “non performing” time with unrelated ancillary duties.
H. The degree of specialization, skill, expertise or creativity involved. If these are a dominant element in the relationship, the control test becomes less useful as an indicator of employee status, and in the absence of “integration” into the respondent’s organization, the disputed individual is a “self- employed” professional.
I. Control of the manner and means of performing the work – especially if there is active interference with the activity. However it is the right to interfere rather than the ability to do so which is significant. The fact that a particular occupation involves technical skill, putting control of the details beyond the capacity of the employer, does not preclude a skilled employee from being so regarded, since the right to control may exist even though the ability to do so does not. Similarly, the power to discipline, without rewards, or terminate the relationship at will and without cause may indicate an employment relationship whether or not the employer exercises this power.
J. The magnitude of the contract amount, terms, and manner of payment. If the financial terms of the relationship approximate wages (for example, if deductions are made for income tax or other benefits are provided or if an individual is paid by the hour rather than the result) an employment relationship may be indicated. The magnitude of the contract amount can sometimes be significant, (although sports celebrities and professionals may be very highly paid yet still be “employees”, and independent professionals may charge an hourly rate rather than a block fee).
K. Whether the individual renders services or works under conditions which are similar to persons who are clearly employees. The employer’s established employee complement may provide a useful benchmark against which the activities of its alleged independent contractors can be measured. If the so-called independent contractor substitutes for a firm’s employees, or performs duties out of his ordinary line of work and similar to those of employees (for example, a trapeze artist also acting as an usherette, or a dancer also acting as a waitress) it is more likely that (s)he will be considered an employee.
How do these criterion apply to the facts of this case?
The use of, or right to use substitutes. Marion Reeves is not required to personally perform the services provided for under the Agreement. She did not need permission to take the contract with the York Board. She hires her students without any one else’s approval. Human Resources will only veto her choices if they cannot get security clearance. As a matter of practice, the Service has never refused to accept work from any Life Fit employee or tried to preclude Marion Reeves from providing a substitute.
Ownership of instrumentalities, tools, equipment, appliances or the supply of materials. The fitness equipment that Marion Reeves instructs Service staff on is owned by the Service and located at Service facilities. This is done for the convenience of employees. While she does not own the fitness equipment used by the Service, she does have the responsibility of monitoring the need for maintenance and repairs. Ms. Reeves does maintain an office and a dedicated phone line in her home. All of Life Fit’s business records are maintained at that office and any employment interviews for new employees are conducted there.
Evidence of entrepreneurial activity. Marion Reeves does extensive networking, belongs to several organizations (all membership fees are paid for by Life Fit), prepares tenders to secure other contracts and has a Revenue Canada Employer number. Life Fit takes the risk of loss by agreeing to indemnify the Board in section 10 of the Agreement. She has submitted a Statement of Earnings which shows that while earnings from 1997 to 1998 were up 4% her expenses rose 22%. Revenue Canada audited Life Fit and did not question its status as a business.
The selling of one’s services to the market generally. Marion Reeves supplied a list of 13 other companies with whom she has had contracts in the past or presently. She acknowledges that the prestige of having Peel as a client helps her get these contracts.
Economic mobility or independence, including the freedom to reject job opportunities, or work when and where one wishes. Marion Reeves does not feel bound to put most of her time in at Peel, even though she chooses to. Life Fit has the independence to reject or accept suggestions for the Fitness and Wellness Program, for instance, a nighttime volleyball league. If Life Fit determines that the Service should have a 10K run, it alone chooses the course, when the race will be held and is responsible for its operation.
Evidence of some variation in the fees charged for the services rendered. Life Fit’s contracts are negotiated, usually yearly, and can be changed.
Whether the individual can be said to be carrying on an “independent business” on his own behalf rather than on behalf of an employer or, to put it another way, whether the individual has become an essential element which has been integrated into the operating organization of the employing unit. Life Fit is not integral to the operations of the Service. While it is a valuable service it is not essential.
The degree of specialization, skill, expertise or creativity involved. Section 1 of the Agreement mandates that the “Fitness/Wellness Coordinator” must possess the following education: (a) a University degree in Kinesiology or a Bachelor of Physical Education, (b) is a member of the Ontario Association of Sport and Exercise Sciences and (c) holds current standing as a Standardized Fitness Test Appraiser. The “Assistant Fitness/Wellness Coordinator” is required to be a student pursuing a degree in Kinesiology, Recreation, Health Studies or a Bachelor of Physical Education.
Control of the manner and means of performing the work – especially if there is active interference in the activity. The Board does not interfere or control the work of Life Fit. On a day to day basis, Life Fit receives no direction regarding the services it performs. The Board has the right to evaluate and assess the standard of service provided by Life Fit and to choose not to renew the contract. The contract does state that all records are the property of the Board and shall not be removed from their premises. The contract can be terminated by either party with 60-days notice. Life Fit employees do not have any set hours of work, are not subject to the appraisal process at the Service and have never been subjected to discipline by the Service.
The magnitude of the contract amount, terms and manner of payment. The terms of Life Fit’s remuneration is negotiated annually. No deductions are made for statutory benefits. GST is paid on all amounts paid to Life Fit. Life Fit pays statutory deductions for all of its employees. No benefits are provided by the Service to Life Fit employees.
Whether the individual renders services or works under conditions which are similar to persons who are clearly employees. The Board treats Life Fit employees differently than its members. Some examples are (a)There are no fixed hours or schedules. (b) There is no restriction on Marion Reeves or the other Life Fit employees engaging in secondary employment. (c) The Human Resources Department of the Service does not maintain any personnel files on Life Fit employees. (d) Life Fit is paid through Accounts Payable and not payroll.
When all of the evidence is weighed in light of the established legal principles and case law, we find that Marion Reeves is a “self employed” independent contractor.
We feel that she is a knowledgeable expert whose services are freely available on the open market to those who wish to gain access to her expertise.
Further, we see no reason why the Board cannot use its authority under section 30(1) of the Act to enter into a contract for incidental support services for its police force. This is not a situation like in Niagara Regional Police Association and Niagara Regional Police Services Board when a board attempted to use its power to contract to directly employ full-time by-law enforcement officers.
Ms. Reeves has no operational law enforcement responsibilities. Principally, she has been retained to provide staff and the board with advice, assistance, training and testing on fitness related issues. This does not appear to be much different from the services provided by a health club. For the benefit and convenience of staff these services are provided on site rather than having them travel elsewhere.
No doubt there are some aspects of the evidence which might support a finding that she is an employee. However, when it is viewed in its totality, we do not think that conclusion can be supported.
DATED THIS 28TH DAY OF JANUARY, 2000.
Barbara Morland Wellard Member, OCCPS
Michele J. Shephard Member, OCCPS