Labor Day Message from NYS Comptroller DiNapoli
On the first Monday in September each year, we gather to honor the contributions that American workers have made to our country’s economic strength, cultural vitality and democratic way of life. The tradition of celebrating Labor Day began in New York City in 1882 and quickly spread throughout the country; the U.S. Congress passed a law establishing Labor Day as a federal holiday in 1894. Then as now, people marked the occasion with parades and picnics, savoring the last days of summer in the company of friends and family.
As we pause from our own labors this September 2nd, we have an opportunity to reflect on all that working men and women have achieved through the generations in building this nation we love. I wish you all a joyful and refreshing Labor Day.
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
August 31, 2013
August 30, 2013
Employee disciplined for off-duty misconduct
Employee disciplined for off-duty misconduct
OATH Index No. 1304/13
An OATH Administrative Law Judge ruled that a New York City correction officer was subject to disciplinary action because there was a sufficient nexus between the employee's fraudulent off-duty misconduct and his position with the New York City Department of Correction.
Disciplinary charges were filed against a correction officer who had pled guilty to operating a home improvement business without a license. The officer had been arrested and indicted on charges of grand larceny in the third degree, a class D felony, and
petit larceny, a class A misdemeanor. He subsequently entered a guilty plea to a violation of the New York City Administrative Code.
ALJ Ingrid M. Addison found that the correction officer used the name and license number of a corporation with which he was not affiliated to hold himself out as a licensed contractor, contracted with a home owner, took a $35,000 advance, and failed to perform the work under the contract.
The ALJ also found that the correction officers off-duty conduct “violated the Department’s rules and was of a nature to bring discredit upon the Department [and] his conduct [bore] a nexus to his job as a correction officer.
Noting that the officer made restitution to the home-owner “only when he faced significant jail time,” Judge Addison recommended termination of the officer’s employment.
The decision is posted on the Internet at:
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August 29, 2013
IRS announces it will treat same-sex marriages the same as heterosexual ones
IRS announces it will treat same-sex marriages the same as heterosexual ones
Source: Washington Post National News Alert
The new policy, which comes in response to a June Supreme Court ruling that overturned a key portion of the Defense of Marriage Act, allows same-sex spouses to file tax returns as married couples regardless of whether they live in jurisdictions that recognize gay unions.
Read more at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/
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Correction officers disciplined after being found guilty of using unnecessary force against an inmate
Correction officers disciplined after being found guilty of using unnecessary force against an inmate
OATH Index Nos. 734/13
The New York City Department of Correction brought charges against two correction officers alleging they used of excessive or unnecessary force against an inmate.
The Department charged that one officer struck the inmate in the face and the other pulled the inmate’s legs out from under him, causing him to fall to the ground.
The Department also charged the two officers with submitting false or misleading statements during Mayoral Executive Order [MEO] 16 interviews. Three other officers were also charged with filing false and/or misleading MEO 16 statements.
OATH Administrative Law Judge Astrid B. Gloade found that all the charges were sustained.
Noting that most of the officers had no prior disciplinary record, ALJ Gloade recommended suspensions of 60 days for the officer who struck the inmate, 25 days for the officer who caused the inmate to fall; and 15- and 20-day suspensions for those who filed false reports.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-734.pdf.
August 28, 2013
Private sector prevailing wage rates and the public sector
Private sector prevailing wage rates and the public sector
OATH Index No. 126/13
OATH Administrative Law Judge Alessandra F. Zorgniotti commenced her analysis of this complaint filed by The International Brotherhood of Teamsters (Local 237) by citing §220(3)(a)] of the New York State Labor Law. This provision requires public employers, including the City of New York, to pay “laborers, workmen, or mechanics” in its employ the prevailing rate of wages and supplemental benefits paid in the private sector “for a day’s work in the same trade or occupation in the locality” where the work is performed.
Although the statute refers to the rates paid in the “same” trade or occupation, courts have recognized that a comparison may be made to workers doing similar jobs. The City’s Comptroller was thus required to determine the prevailing rate of wages paid to those workers whose trade or occupation was “comparable” to city-employed maintenance workers.
Local 237's complaint sought a determination of the prevailing wages and benefits for elevator mechanics, supervisor elevator mechanics, and elevator mechanic helpers employed by the City should be that set by the Elevator Manufacturers Association of New York and the International Union of Elevator Constructors Local Union No.1.
The Comptroller had made a preliminary determination that elevator mechanics and their supervisors should be paid the same as comparable private sector titles covered by the Local 1 contract and that helpers should be paid the same as helpers covered by the contract between the Elevator Industries Association, Inc.and the International Brotherhood of Electrical Workers Local 3.
Judge Alessandra F. Zorgniotti upheld the Comptroller’s preliminary determination finding that because Local 1 was the prevailing union and had comparable titles, elevator mechanics and supervisors should be paid at Local 1 rates.
The ALJ noted that as there was no comparable permanent helper title in Local 1, the helpers were properly found to be comparable to the Local 3 helpers.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-126.pdf.
August 27, 2013
Employer pension contribution rates announced for fiscal year 2014-15
Employer pension contribution rates announced for fiscal year 2014-15
Source: Office of the State Comptroller
On August 27, 2013, Comptroller Thomas P. DiNapoli reported that employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014-15.
On August 27, 2013, Comptroller Thomas P. DiNapoli reported that employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014-15.
The average contribution rate for the Employee Retirement System (ERS) will decrease by 0.8 percent of payroll, from 20.9 percent to 20.1 percent. The average contribution rate for the Police and Fire Retirement System (PFRS) will decrease by 1.3 percent of payroll, from 28.9 percent to 27.6 percent.
“The New York State Common Retirement Fund’s strong gains over the last four years have mitigated some of the impact of the financial market collapse of 2008-2009,” DiNapoli said. “Strong investment performance, along with a revision in actuarial smoothing, has lowered the employer contribution rate for 2014-15.”
Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s actuary and approved by DiNapoli.
The Retirement System’s actuary recommended a change based on a recommendation from Buck Consultants, LLC, as part of an independent actuarial review which is performed every five years. The previous method separated assets into equities and non-equities, while the new method expects the entire fund to earn the assumed rate of return and smoothes any unexpected gains or losses. According to Buck, the new method is generally used by the majority of public pension systems nationwide.
In 2012, DiNapoli directed the Retirement System to give employers access to a full projection of their annual pension bill by September 1, six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets and calculation of tax levies subject to the property tax cap effective for fiscal years that begin in 2014.
Projections of required contributions will vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. The employer contribution rates announced today will apply to each employer’s salary base during the period of April 1, 2014 through March 31, 2015. Payments based on those rates are due by February 1, 2015, but may be pre-paid on December 15, 2014.
N.B. The property tax cap generally limits the amount a government entity can increase its annual tax levy to two percent or the rate of inflation, whichever is less. The cost of pensions above a change in the average contribution rate by more than two percentage points is excluded from the tax cap. Since the ERS and PFRS rates have declined, there will not be any exclusion for this period.
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August 24, 2013
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending August 24, 2013
The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.]
DiNapoli, NYBDC Announce $3.2 Million Loan to Nirvana Water
New York State Comptroller Thomas P. DiNapoli and New York Business Development Corporation CEO Pat MacKrell announced a $3.2 million loan to Nirvana Water, based in Boonville in Oneida County on August 21, 2013 . The loan marks a milestone of 1,000 loans granted to small businesses in New York using funds from the New York State Common Retirement Fund.
DiNapoli, NYBDC Announce $3.2 Million Loan to Nirvana Water
New York State Comptroller Thomas P. DiNapoli and New York Business Development Corporation CEO Pat MacKrell announced a $3.2 million loan to Nirvana Water, based in Boonville in Oneida County on August 21, 2013 . The loan marks a milestone of 1,000 loans granted to small businesses in New York using funds from the New York State Common Retirement Fund.
DiNapoli Announces Two SoftBank Capital Investments In New York City Tech Market
Two New York City–based technology companies, RebelMouse and Coopkanics, received venture funding from SoftBank Capital, an investment partner of the New York State Common Retirement Fund, through the In–State Private Equity Program, New York State Comptroller Thomas P. DiNapoli announced August 20, 2013.
DiNapoli: New York’s Job Count Up, Though Growth Slows
For the first time in six years, national job growth rates have exceeded those in New York State, according to a new report on economic trends released August 23, 2013 by New York State Comptroller Thomas P. DiNapoli.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of
the Carthage–Wilna Fire District;
the Village of Clyde;
the Town of Dayton;
the Village of Maybrook;
the Town of Ontario;
the Town of Putnam Valley; and,
the Town of Washington.
New York State Fair
Comptroller DiNapoli will be at the New York State Fair in Syracuse on Monday, August 26th. During his visit, the Comptroller and staff from the Division of Unclaimed Funds will present unclaimed funds checks to Central New York owners.
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August 23, 2013
The Adjunct Law Professor’s LawBlog has a new look
The Adjunct Law Professor’s LawBlog has a new look
The Adjunct Law Professor Law Blog, which has as its focus personnel law in general and public personnel law in particular, has been completely redesigned.
Recent posts include summaries of decisions addressing discrimination against the disabled and claims alleging same sex harassment.
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August 22, 2013
New York State’s Student Internship Program Offers Hundreds Of Internships
| New York State’s Student Internship Program Offers Hundreds Of Internships Source: New York State Department of Civil Service |
| Civil Service Commissioner Jerry Boone recently announced that New York State has hundreds of internships available, and reminded college students to apply for Fall semester internships before the application deadline on September 3, 2013. New York State created a one-stop website at http://nysinternships.com/nnyl/ that allows students to view and apply for internship opportunities across an array of state agencies both downstate and upstate. The website is one component of Governor Andrew M. Cuomo’s New New York Leaders initiative, which is focused on attracting new talent to state government through both a fellowship program and an internship program. With the internship website, applicants can view job descriptions, create profiles, specify interests, and upload resumes, writing samples and letters of recommendation. Students can apply for multiple internships at the same time. “The internship program is designed to attract and mentor a new generation of talented leaders for New York State,” said Governor Andrew M. Cuomo. “I continue to encourage talented college students to consider devoting time to public service while acquiring valuable skills and marketable work experience.” “New York State continues to offer a wide variety of opportunities across numerous professional occupations,” said Civil Service Commissioner Jerry Boone. “Governor Cuomo’s internship program offers opportunities for hands on experience in finance, engineering, public relations, information technology and health care, as well as a host of other professional disciplines.” The program is open to resident graduate and undergraduate students as well as students who attend schools in other states, but reside in New York. Opportunities include both paid and unpaid positions. Internships may include academic credit depending on the policy of the educational institution. To apply, visit http://nysinternships.com/nnyl/ . |
Public employee pensions account for about 3% of government spending
Public employee pensions account for about 3% of government spending
Source: New York State Teachers’ Retirement System
According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”
The NASRA report noted that “State and local government pension benefits are paid not from general operating revenues, but from trust funds to which public retirees and their employers contributed while they were working. …On average, public pension programs remain a small part of state and local government spending.”
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August 21, 2013
Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate
Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate
OATH Index Nos. 731/13 & 1000/13
OATH Administrative Law Judge Alessandra R. Zorgniotti recommended that a correction officer found guilty of using improper force on four occasions be terminated from his position.
The New York City Department of Correction alleged that the correction officer used excessive physical force in dealing with prison inmates such as choking inmates, punching inmates in the head, and slamming one inmate against a wall. Among the charges served on the correction officer was one that alleged that he hit an adult inmate with a radio.
The correction officer was also charged with making false statements in interviews concerning his conduct.
ALJ Zorgniotti found that the correction officer’s use of deadly force and his inability to appreciate the seriousness of his misconduct indicated that retraining and progressive discipline were inappropriate penalties.
Accordingly Judge Zorgniotti recommended the individual be dismissed from his position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-731.pdf.
Determining eligibility for accidental disability benefits
Determining eligibility for accidental disability benefits
Mruczek v McCall, 299 AD2d 638,
Steven v McCall,**
Steven v McCall,**
The Mruczek Case:The Mruczek decision demonstrates the burden an individual has in proving that he or she is eligible for accidental disability benefits or line of duty disability benefits. The test to be met is difficult.
In the words of the Appellate Division, in order for an injury to be the result of an accident for the purposes of eligibility for [accidental] disability retirement benefits within the meaning of the Retirement and Social Security Law, it must "result from a `sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact' and [be] unrelated to the ordinary risks of employment."
The Comptroller sustained ERS's rejection of Patrick M. Mruczek's applications for accidental, or in the alternative, performance of duty, disability retirement benefits.
Mruczek, a correction officer at the Attica correctional facility, claimed he was injured while at work when he fell over a "feed-up" cart as he proceeded to remove his lunch from a microwave oven. According to Mruczek, he was talking to the hall captain when he heard the bell on the microwave oven. Turning around to retrieve his meal, he fell over a feed-up cart that he alleged had been placed behind him by an inmate. Mruczek also testified that it was normal for inmates to use the feed-up carts and that it was not uncommon to see the carts in the block area in which the accident occurred.
The Employees' Retirement System [ERS] explained that it had rejected Mruczek's applications because the occurrence was neither (1) an accident nor (2) a result of the acts of an inmate. The Comptroller affirmed ERS's ruling; Mruczek appealed.
The Appellate Division held that "[u]nder these circumstances, the Comptroller could rationally conclude that [Mruczek's] injury occurred as a result of his misstep while he was engaged in a routine activity rather than a sudden, fortuitous and unexpected event."
The Stevens Case: In Stevens the Appellate Division, 3rd Department affirmed the Comptroller's decision that a Nassau County police officer, Gordon F. Stevens, did not qualify for accidental disability retirement benefits.
Stevens was the commanding officer of the County's Marine/Aviation Bureau. He injured his arm while he was assisting other officers engaged in launching a 36-foot patrol vessel weighing 30,000 pounds.
The Appellate Division said that "[c]rucial to the finding of an accident ... is `a precipitating accidental event ... which was not a risk of the work performed.'" Stevens contended that he was not engaged in a task he normally performed and he had never before participated in launching a boat. However, he also said that it was his job was to "make sure everything [got] done" and indicated that, because of the urgency of the situation, he physically assisted in launching the boat. In addition, a former commanding officer of the Bureau testified that it was the responsibility of the commanding officer to see to it that all functions of the Bureau were accomplished and this included physically assisting in the performance of certain tasks if necessary to fulfill this responsibility.
The court's conclusion: notwithstanding the fact that Stevens had not previously participated in launching the patrol boat, there was substantial evidence to support the Comptroller's finding that "it was a task inherent in [Stevens'] regular duties as commanding officer to carry out the functions of the Bureau" and, therefore, it declined to disturb the Comptroller's determination disapproving Steven's application.
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August 20, 2013
Aspiration for another position with the employer not a property right
Aspiration for another position with the employer not a property right
Gokaran Singh v District Council 37, et al. US Circuit Court of Appeals, 2nd Circuit; 05-2255*
The Circuit Court of Appeals affirmed the district court's dismissal of Gokaran Singh’s complaint that he had been denied due process in connection with his alleged loss of property rights due him by his employer. The lower court had dismissed Singh's petition because, it held, Singh failed to demonstrate that he had been deprived of a cognizable property interest by his employer.
Singh’s complaint was based on his interest in obtaining employment in other positions within his Department, the New York City Department of Design & Construction, and his desire for an “exceptional performance” evaluation.
These objectives, said the court are “abstract need[s], desire[s] or unilateral expectation[s]” and do not satisfy the requirement that Singh demonstrate that he has been denied a property right.
* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata.
The decision is posted on the Internet at:
http://federal-circuits.vlex.com/vid/singh-v-district-council-25604512,
Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation
Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation
2013 NY Slip Op 05633, Appellate Division, Second Department
A teacher [Petitioner] was served with disciplinary charges alleging misconduct flowing from her participation in a “job action” near school grounds in the course of collective bargaining. Found guilty of misconduct and fined $1,000 by the Education Law §3020-a arbitrator, Petitioner challenged the determination by filing a petition pursuant to CPLR Article 75 in an effort to vacate the arbitration award.
According to the decision, the School District and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of a school. The district filed disciplinary charges against a number of teachers, including Petitioner, alleging that the job action "intentionally created a health and safety risk … by purposely situating [their] vehicle[s] … in order to preclude children from being dropped off at curbside” in front of the school building.
The Appellate Division initially noted that where arbitration is statutorily required, as is the case in an Education Law §3020-a disciplinary action, "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Further, said the court, "The award must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78" and "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]."
The Appellate Division then noted that in two earlier appeals involving teachers disciplined for their involvement the same job actions, it was found that “the evidence at the hearing provided a rational basis for the arbitrator's determination that the teachers contributed to the creation of a health and safety hazard, and that the awards were not arbitrary and capricious.”* This, said the court, was true in Petitioner’s case as well.
That said, the Appellate Division vacated the arbitration awards handed down in the two earlier cases and then did the same in Petitioner’s case.
In the two earlier cases the appellate court determined that the School District failed to meet its burden of demonstrating the teachers charged with misconduct, who were then engaged in the exercise of their First Amendment rights, so threatened the school's effective operation as to justify the imposition of discipline.
Accordingly, the Appellate Division granted Petitioner’s appeal “for the same reasons, i.e., her job-related activity regarding collective bargaining issues” indisputably addressed matters of public concern and the School District failed to meet its burden of demonstrating that Petitioner's exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.
* See Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 101 AD3d 1026; Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030.
The decision is posted on the Internet at:
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SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller
SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller
Source: Office of the State Comptroller
A State Comptroller’s audit reports that State University of New York at Albany [SUNY-Albany] officials “failed to consistently follow guidelines for sabbatical leaves and granted questionable paid leave to other employees, unnecessarily costing taxpayers more than $1 million.”* The Comptroller recommended that SUNY-Albany “Take actions as needed, including the recovery of improper compensation payments, to address the matters presented.”
As to efforts to recover “improper compensation payments," in Trumansburg Central School District v Chalone, 87 A.D.2d 921, the Appellate Division agreed with the School District that it could recover the salary it paid to an educator during his sabbatical leave when he failed to return to his position as agreed upon completion of the leave.
Similarly, in State of New York v Gordon, 102 A.D.2d 990, affirmed, 64 N.Y.2d 712, the court ruled that the employer could recover the cost of the benefits it provided to an individual placed on leave for training purposes in the event he or she fails to return to his or her job.
Also, the State Comptroller has advised that a municipality may adopt a resolution requiring employees who are sent to schools for specialized training at the municipality’s expense in order to qualify for a promotion to reimburse the municipality for the cost of such training if they resign from their position within a specified period of time (Op. St. Comp. 82-4).
* The Comptroller’s SUNY-Albany audit report is posted on the Internet at:
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The law in effect at the time the administrative or court decision is made controls
The law in effect at the time the administrative or court decision is made controls
Trifaro v Town of Colonie, 31 AD3d 821
Pointing out that it is well established that, generally, the law is to be applied as it exists at the time a decision is rendered, even if the law has been altered since the commencement of the action or proceeding, the Appellate Division, citing citing Gager v White, 53 NY2d 475, 483 [1981], cert denied 454 US 1086, said that this rule applies to administrative and judicial proceedings alike.
Pointing out that it is well established that, generally, the law is to be applied as it exists at the time a decision is rendered, even if the law has been altered since the commencement of the action or proceeding, the Appellate Division, citing citing Gager v White, 53 NY2d 475, 483 [1981], cert denied 454 US 1086, said that this rule applies to administrative and judicial proceedings alike.
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August 19, 2013
School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees
School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees
Anderson v Niagara Falls City Sch. Dist., 2013 NY Slip Op 23274, Supreme Court, Niagara County, State Supreme Court Justice Ralph A. Boniello, III
Medicare-eligible retirees of the Niagara Falls City School District [Plaintiffs] sued the school district alleging that the School District had diminished their health insurance benefits by placing them in the "Blue Cross/Blue Shield Forever Blue Medicare PPO 799 Plan" (Forever Blue Plan) without making a similar change in the health insurance plan in which the school district's active employees participated.
This, contended Plaintiffs, constituted a unilateral diminution of their benefits – i.e., additional or higher co-payment costs and medication costs -- as the result of the School District requiring that its Medicare-eligible retirees switch from the “Traditional Blue Plan” to the “Forever Blue Plan.”* In contrast, there was no corresponding diminution in the health insurance benefits provided the active employees. Indeed, said the court, it is undisputed that at the same time Plaintiffs were placed in Forever Blue, the active employees employed by the School District were placed in the NY-44 Health Benefits Trust Plan and as a result the active employees were provided with an increase or improvement of their overall health insurance benefits.
Plaintiffs alleged that this change violated the School District’s obligations under Chapter 504, Part B, §14 of the Laws of 2009 [The Moratorium provision]:
§14 addressed health insurance benefits available to retired employees of school districts and certain boards and, in pertinent part, provides that “a school district … shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such … district makes for such health insurance coverage … unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board [for] the corresponding group of active employees ….”
Among the differences noted by Justice Boniello: the Traditional Blue Plan did not require co-payments for nearly all medical services that took place in-network while the Forever Blue Plan requires co-payments for medical services that occur, both in and out-of-network, and required significantly higher co-payments for prescription medications.
While the School District claimed that it had “offset the additional out of pocket expenses” incurred by the Plaintiffs resulting from their enrollment in Forever Blue by creating a medical reimbursement account for each Medicare-eligible [retiree]," this account was capped at $600.00. Justice Boniello found that “while in some cases the $600.00 may be sufficient, it is entirely possible, and indeed probable, that in most cases it will not be enough.”
Justice Boniello concluded that the School District’s actions violated the mandates set out in Chapter 504, Part B, §14 of the Laws of 2009 and that the School District’s actions were arbitrary, capricious and unlawful.
Justice Boniello then directed the School District[1] to pay each of the Petitioners the amounts, together with interest, "that each has incurred and/or will incur" by reason of the School District’s action to the date of its compliance with the Moratorium provision; and further ordered the school district [2] “to cover the costs and/or provide health insurance coverage that will place the Petitioners in the same position that they would have been in but for the actions of the [School District].”
* A number of school districts, rather then unilaterally imposing such a change upon its Medicare-eligible retirees, have offered its Medicare-eligible retirees the option of either [1] remaining in the district's health insurance plan available to its active employees or [2] electing to switch to different health insurance plan.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_23274.htm.
The Moreland Commission recently established by Governor Cuomo to investigate corruption in the public service issues its first subpoenas
The Moreland Commission recently established by Governor Cuomo to investigate corruption in the public service issues its first subpoenas
The editorial team of the NYMUNIBLOG, published by the Harris Beach law firm as a public service, has posted a new item, "Moreland Commission Issues First Subpoenas." The post reports that the Moreland Commission recently appointed by Governor Cuomo to investigate corruption in the public service has issued its “first wave of subpoenas” and that more subpoenas are expected to be issued in the near future. The Commission has scheduled initial public hearings to be held in September.
The Moreland Act, now §6 of Executive Law, was passed by the New York State Legislature and signed into law in 1907. The Act authorizes the governor, in person or through one or more persons appointed by the governor, to examine the management and affairs of any department, board, bureau or commission of the State. Commission investigators have the power to interview witnesses, administer oaths, hold hearings, and seize any material deemed relevant to the Commission's investigation.
The Commission is expected to releasing an interim report by the end of 2013 and its final report in mid-2014. Additional information on the scope of investigations undertaken by a Moreland Commission is posted on the Harris Beach Legal Alert website at “Insights into the history and intricacies of a Moreland Commission investigation.”
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August 18, 2013
Reports and audits issued by the New York State Comptroller
Reports and audits issued by the New York State Comptroller during the week ending August 19, 2013. [Click on text highlighted in bold to access the full report.]
State Recovers $46 Million in Medicaid Payments Following DiNapoli Audit
New York state was able to recover $46 million in overpayments to nursing homes after an audit by State Comptroller Thomas P. DiNapoli found the Department of Health’s computer system failed to deduct payments some nursing home residents are required to pay for their care, according to a follow–up reportissued August 17, 2013 by DiNapoli. The new report, however, notes that deficiencies in the computer system still exist.
New York state was able to recover $46 million in overpayments to nursing homes after an audit by State Comptroller Thomas P. DiNapoli found the Department of Health’s computer system failed to deduct payments some nursing home residents are required to pay for their care, according to a follow–up reportissued August 17, 2013 by DiNapoli. The new report, however, notes that deficiencies in the computer system still exist.
Contractor Charged in Federal Court for Defrauding NYS Health Department of Over $700,000
State Comptroller Thomas P. DiNapoli and United States Attorney for the Southern District of New York Preet Bharara Wednesday announced chargesagainst JOSEPH L. JUNKOVIC for allegedly engaging in a scheme to defraud the New York State Department of Health (NYSDOH) out of more than $700,000 dedicated to providing cancer screening services to low–income New Yorkers. JUNKOVIC allegedly used a not–for–profit corporation that he controlled, Cancer Service Network, Inc. to obtain more than $25 million in federal and state funding to administer cancer screening services, and then billed the NYSDOH for thousands of hours that he did not in fact work. He was arrested at his Bronx home Wednesday morning and presented in Manhattan federal court before U.S. Magistrate Judge Ronald L. Ellis.
DiNapoli: State Fiscal Picture Stable
Tax collections were $18 million below updated projections during July, but receipts since the start of the fiscal year were 13.3 percent higher than last year because of strong personal income tax (PIT) receipts in April, according to the July cash report released Friday by New York State Comptroller Thomas P. DiNapoli. July tax collections were 5.2 percent higher than last year, largely from an additional collection day for PIT withholding this month.
DiNapoli: New Medicaid Reimbursement Method Leads to $31 Million in Overpayments
The state Department of Health made as much as $31 million in excessive Medicaid payments for patients who died within 24 hours of being admitted to a hospital after a new method of calculating hospital payments went into effect, according to an auditreleased August 16, 2013 by New York State Comptroller Thomas P. DiNapoli.
DiNapoli: Long Island Pharmacy Swindled State Out Of $235,000
A Long Island pharmacy improperly collected at least $235,000 from Medicaid and the New York State Health Insurance Program over a four–year period, primarily through payments for phony prescriptions that were never delivered to patients, according to audits released Tuesday by New York State Comptroller Thomas P. DiNapoli.
Audit Finds New York City Property Owners Underreported $20 Million in Billboard Income
Hundreds of New York City property owners failed to report an estimated $20 million of taxable income from billboards according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli which was coordinated with New York City Comptroller John C. Liu. Auditors found the New York City Department of Finance failed to follow up on whether property owners were reporting income and did not impose penalties for late or inaccurate information.
NYS Common Retirement Fund Announces First Quarter Results
The New York State Common Retirement Fund’s (Fund) overall rate of return for the first quarter ending June 30, 2013, was 0.29 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the first quarter of its fiscal year was $158.7 billion.
the Village of Bolivar;
the Town of Coldspring;
the City of Glens Falls;
the Town of Kendall;
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August 17, 2013
Audit reports released by State Comptroller DiNapoli on August 16, 2013
Audit reports released by State Comptroller DiNapoli on August 16, 2013
On August 16, 2013, New York State Comptroller Thomas P. DiNapoli announced that the following audits were issued. . [Click on text highlighted in bold to access the full report.]
Department of Agriculture and Markets, Uncollected Penalties (2012-S-69)
Auditors found outstanding accounts routinely have no collection activity for two years or more and are often eventually deemed uncollectible. Between April 2007 and October 2012, more than 6,000 penalized establishments went out of business resulting in the withdrawal and write off of more than $3.5 million of accounts receivable. Critical but incompatible duties associated with collection are all assigned to one employee. An absence of management oversight has increased the risk that errors, omissions and even irregularities can occur and not be detected.
Department of Motor Vehicles, Oversight and Collection of Snowmobile Registration Fees (2011-S-54)
DMV practices have allowed snowmobile registration discounts to registrants who are ineligible for them, resulting in less revenue to the trail fund for trail services. As a result, 31 of the 50 discounted registrations (62 percent) auditors sampled were for registrants for whom neither DMV nor the New York State Snowmobile Association could confirm eligibility. Given the weaknesses identified, auditors estimate lost revenues to the trail fund may be significant.
Metropolitan Transportation Authority, Selected Aspects of Bus Fleet Maintenance Report (2013-F-8)
An initial audit report in 2010 examined whether the MTA has standards and procedures for the maintenance of its bus fleet, performs bus maintenance in compliance with these standards and procedures, and has a comprehensive maintenance plan for its bus fleet. Auditors found that a number of improvements were needed. In a follow-up report, auditors found the MTA made significant progress in correcting the problems identified.
The MTA has implemented four recommendations and partially implemented three recommendations.
Also, as part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:
State University of New York System Administration Office, Selected Employee Travel Expenses (2012-S-100)
Auditors selected to audit one State University of New York System Administration Office employee whose expenses ranked among the highest in the state in the area of lodging. In total, they examined $188,074 in travel costs associated with this employee. Most of the expenses examined were appropriate. However, the employee selected for audit had charges totaling $5,021 that were either for non-reimbursable expenses ($200 hotel room smoking charge) or lacked adequate assurance that the charges were for the most reasonable and economical method of travel ($4,821 in car service charges).
Also, as part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:
State University of New York System Administration Office, Selected Employee Travel Expenses (2012-S-100)
Auditors selected to audit one State University of New York System Administration Office employee whose expenses ranked among the highest in the state in the area of lodging. In total, they examined $188,074 in travel costs associated with this employee. Most of the expenses examined were appropriate. However, the employee selected for audit had charges totaling $5,021 that were either for non-reimbursable expenses ($200 hotel room smoking charge) or lacked adequate assurance that the charges were for the most reasonable and economical method of travel ($4,821 in car service charges).
State University of New York College at Buffalo, Selected Employee Travel Expenses (2012-S-136)
Auditors were only able to examine two years and nine months of the three years of travel expenditures totaling $127,095 because the college was not required to and did not maintain records prior to July 1, 2008. The travel expenses for the one employee selected for audit were documented and adhered to state travel rules and regulations. This employee was an athletic coach who was responsible for team travel expenses. This coach also incurred expenses for recruiting trips.
State University of New York at Stony Brook, Selected Employee Travel Expenses (2012-S-102)
Auditors examined the travel costs of eight university employees whose expenses exceeded $100,000 or had outliers in the area of train fare. In total, auditors examined $1,313,845 in travel costs associated with these eight employees. Most of the expenses auditors examined were appropriate. However, two employees had charges totaling $2,529 that were either not for legitimate business purposes or lacked adequate assurance the charge was solely for legitimate business purposes.
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August 16, 2013
Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision
Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision
2013 NY Slip Op 05630, Appellate Division, Second Department
The appointing authority terminated the employee [Petitioner] following a Civil Service Law §75 disciplinary hearing. Petitioner was found guilty of “misconduct and/or incompetence” and was terminated from her position. Petitioner appealed.
The Appellate confirmed the appointing authority’s determination, explaining that the review of administrative determinations in employee disciplinary cases made after a hearing pursuant to Civil Service Law §75 is limited to a consideration of whether the appointing authority's determination was supported by substantial evidence.
Although much of the evidence against Petitioner offered by the employer was hearsay, the Appellate Division said that this hearsay evidence, in conjunction with the nonhearsay evidence presented at the hearing, constituted substantial evidence sufficient to support the determination that Petitioner was guilty of the charges brought against her.
As to the penalty imposed, termination, the court said that the penalty was “not so disproportionate to the offense committed as to be shocking to one's sense of fairness,” citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_05630.htm.
August 15, 2013
Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”
Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”
2013 NY Slip Op 51322(U), Supreme Court, Dutchess County, Justice James D. Pagones [Not selected for publications in the Official Reports.].
An employee [Petitioner] was served with a number disciplinary charges pursuant to Civil Service Law §75, found guilty of such charges and dismissed from his position.
In a previous proceeding, the Appellate Division found "that substantial evidence in the record supports the determination of [the appointing authority] that Petitioner was guilty of charges one, two, and three…” Accordingly, Justice Pagones said that in the action before him there was no issue of fact as to Petitioner’s guilt as to charges one, two and three. However, said Justice Pagones, “[t]his Court must now look specifically to the offense(s) and determine whether or not the penalty, termination, shocks the judicial conscience."
The court concluded that although the facts and the charges as sustained by the Appellate Division, “while serious, do not fit the penalty of termination.”
In brief, Petitioner was observed “consuming a beer and a shot of liquor” from approximately 1:40 p.m. until 2:40 p.m during his workday, at which point Petitioner returned to work. "This one hour time frame," said the court, "has now cost [Petitioner] his job and his benefits associated with the position."
Recognizing that Petitioner committed a serious infraction, Justice Pagones ruled that “the penalty of termination of his employment is so disproportionate to the offense committed as be shocking to one's sense of fairness” considering that there was no evidence in the record before the Court that Petitioner “during his nineteen (19) years of employment with [employer] had presented a disciplinary problem or that the incident was anything but isolated.”
Justice Pagones then remitted the matter to the appointing authority for the imposition of a lesser penalty and “held in abeyance pending submissions by [Petitioner] and [appointing authority] of a computation of the value of [Petitioner's] full back pay and benefits less any compensation derived from other employment or any unemployment benefits received from September 9, 2010 until now.”
N.B. With respect to the amount of the back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.
In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.
In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.
The decision is posted on the Internet at:
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August 14, 2013
Reminder from the Internal Revenue Service to register for its “Rehired Annuitants” online presentation for government employers
Reminder from the Internal Revenue Service to register for its “Rehired Annuitants” online presentation for government employers
August 15, 2013 at 2 p.m. Eastern Time
The Internal Revenue Service [IRS] advises that payroll tax treatment of a former government employee that returns to work for the same entity may be different than it was prior to their retirement or separation. This presentation will help government employers understand how to comply with the complicated and often misunderstood tax implications of hiring a former employee.
For more information and to register, please read this article and then click on to sign up for this free online presentation.
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Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record
Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record
2013 NY Slip Op 05598, Appellate Division, First Department
The Appellate Division reversed a Supreme Court's ruling that dismissed a petition challenging a teacher’s annual unsatisfactory performance rating and annulled the unsatisfactory rating given the educator.
The court said that the New York City Department of Education’s [DOE] determination to sustain the unsatisfactory performance evaluation was not rationally based on administrative findings that the teacher had engaged in corporal punishment as “there was no longer any documentation substantiating an instance of corporal punishment in [the teacher’s] personnel file after the parties stipulated to the removal of two disciplinary letters from the file.”
DOE’s "Rating Pedagogical Staff Members" procedure, in pertinent part, provides:
1. That a teacher's evaluation must be supported by documentation in his/her personnel file;
2. That documentation removed from a file through grievance procedures is inadmissible in performance reviews; and
3. That documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher's file.
Further, said the court, materials placed in a teacher's personnel file must include a signature and date line for the teacher, evidencing that he or she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.
Citing Appeal of Naomi Dowrie [46 Ed Dept Rep 273, Decisions of the Commissioner of Education, Decision No. 15,506, in which the Commissioner of the New York State Department of Education upheld the petitioner's appeal from an unsatisfactory rating on the ground that the respondent had failed to follow its own procedures and had considered material that had been removed from the petitioner's personnel file through the grievance process, i.e., "materials not properly placed in [the] teacher's personal [sic] file," the Appellate Division concluded that there was no documentation in the record to support the unsatisfactory rating give the teacher in this instance.
The court also noted Mangone v Klein, a decision by a State Supreme Court justice in which the court, relying of Dowrie, denied DOE's motion to dismiss the educator’s petition seeking to set aside his unsatisfactory rating upon finding that there was nothing in the teacher's personnel file other than a disciplinary letter that had been ordered to be removed following arbitration related to the allegations against him. [Mangone was not selected for publication in the Official Reports but the decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2007/2007_32475.pdf].
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Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination
Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination
6 Misc3d 1012(a), Affirmed 48 AD3d 815*
Civil Service Law §75 provides that the appointing authority may designate an individual to conduct a §75 disciplinary hearing and to make findings of fact and recommend the penalty to be imposed. The appointing authority is to then review such findings and recommendation and make the final determination. Where the appointing authority believes it cannot be impartial or is biased against the accused employee, the appointing authority is to delegate the decision-making authority to some other individual authorized to act in his absence. If no such person is available, then the Rule of Necessity would apply and the appointing authority would have to review the record and make the final determination, notwithstanding being “admittedly biased” or unable to act “impartially.”
Following her termination from her position, the individual [Petitioner] brought an Article 78 action seeking an order declaring that action “illegal, ultra vires, null and void.” State Supreme Court Justice Dickerson granted her petition.
Justice Dickerson’s decision indicates that on May 16, 2002, the Mayor preferred disciplinary charges against Petitioner pursuant to the Civil Service Law Section 75. The charges alleged insubordination and/or misconduct and neglect of duty and/or incompetence to perform the duties of her position.
The Mayor appointed an individual to serve as the Hearing Officer to determine the disciplinary charges. Stein sent his findings and recommendations to the Mayor on January 2, 2004. The Mayor then delegated to an independent arbitrator the full power and authority to make the disciplinary determination after considering Hearing Officer's report and recommendations.
The court ruled that the Mayor's designating an individual to serve as the hearing officer and his delegation of his decision making authority with respect to the charges filed against Petitioner to an independent arbitrator, including authority to make a final determination of those charges and subsequent termination of Petitioner's employment, were illegal, ultra vires, null and void. Justice Dickerson vacated the termination of Petitioner without prejudice to the City to appoint a new Hearing Officer for the purpose of conducting a new disciplinary hearing. He then awarded Petitioner back pay from the date of her termination together with any benefits to which she was entitled.
The decision states that the Mayor was admittedly biased, and, indeed, wanted Petitioner dismissed from her position. However, that bias, said the court, does not necessarily excuse him from the duty of making the final determination in this matter. The delegation must be to a duly qualified individual authorized to act during the absence or inability of the appointing authority not previously involved in the proceedings or charges. Only when there is no such official and one cannot be appointed, and thus no such delegation is possible, does the “Rule of Necessity” apply, permitting an otherwise partial official to make the final determination.”
The court said that an independent arbitrator with no connection "with the governmental employment at issue," was not “a duly qualified individual authorized to act during the absence or inability of the appointing authority. As the Mayor believed he was biased and not impartial, it was the Mayor's responsibility to try to delegate the decision-making authority to either the City's personnel officer, the City Clerk, or to some other individual authorized to act in his absence. If no such person was available, then the Rule of Necessity would apply and the Mayor would have had to make the final determination himself, notwithstanding being “admittedly biased.”
The court then considered Civil Service Law Section 75(2), which states, in pertinent part, "...The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred or by a deputy or other person designated by such officer or body in writing for that purpose."
The court then considered Civil Service Law Section 75(2), which states, in pertinent part, "...The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred or by a deputy or other person designated by such officer or body in writing for that purpose."
But, said Justice Dickerson, the Mayor was neither "the officer or body having the power to remove" nor was he "a deputy or other person designated by such officer or body in writing for that purpose". Under the controlling provision in the City Code, the authority to remove, which is a function of the power to appoint, was not specifically designated to anyone by the officials having that authority.
* The Supreme Court’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_50033.htm .
The Appellate Division’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2008/2008_01762.htm
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Designation of managerial employees within the meaning of the Taylor Law
Designation of managerial employees within the meaning of the Taylor Law
Matter of Civil Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO v New York State Pub. Empl. Relations Bd., 34 AD3d 884
The Civil Service Employees Association, Inc. [CSEA] sued the Public Employment Relations Board [PERB], challenging a PERB determination designating eight New York State Dormitory Authority [DASNY] employees as managerial within the meaning of Civil Service Law §201(7)(a), the Taylor Law.*
The Appellate Division stated that the scope of its review was limited to determining if PERB’s determination was arbitrary and capricious. It then pointed out that in Lippman v Public Empl. Relations Bd., 263 AD2d 891, it had ruled that courts may defer to PERB's exposition of the terms "management" and "confidential" as they are employed in Civil Service Law §201(7)(a).
A PERB decision clarified the meaning of the phrase "formulated policy."** That ruling indicated that the phrase “formulated policy” must be "sufficiently broad" to include "persons who regularly participate in and influence a process by which the employer makes decisions regarding its mission and the means by which those policy goals and objectives can be best achieved."
The Appellate Division concluded that in this instance PERB's determination designating the eight employees as managerial was neither unreasonable nor arbitrary, noting that all of the job titles at issue were within the Office of Construction, one of the five main divisions headed by managing directors that report directly to the Authority’s executive officers and board.
Consistent with PERB's conclusion that "the organizational structure of DASNY promotes participation in the decision-making process that is more than mere technical advice to single decision-makers," the Appellate Division ruled that although "exclusions for managerial . . . employees are an exception to the Taylor Law's strong policy of extending coverage to all public employees," given the evidence presented PERB's classification of the employees as managerial was neither arbitrary nor capricious.
* Employees designated as either managerial or confidential are excluded from the definition of "public employees" and, as such, are not afforded various benefits provided under the Taylor Law (see Civil Service Law §200 et seq.) with respect to representation for the purposes of collective bargaining. Civil Service Law §201(7)(a) provides: "Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment."
** Matter of Public Empls. Fedn., AFL-CIO v State of New York, 36 PERB ¶ 3029
The decision is posted on the Internet at:
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August 13, 2013
Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli
Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli
The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.]
Town of Alexandria – Non-Payroll Cash Disbursements and Fuel Inventory (Jefferson County)
The town’s non-payroll cash disbursements were not always properly authorized, adequately supported or in compliance with statutory requirements. The former supervisor improperly paid 20 claims totaling $19,919 without the audit and approval of the board. Auditors also found internal controls over fuel inventories need to be improved. Records show from June 2011 through December 2011 nearly 4,500 gallons of fuel valued at about $14,600 were not accounted for.
Village of Bolivar – Financial Condition of Water and Sewer Funds (Allegany County)
The village board has not adequately monitored the financial condition of the water and sewer funds. The water and sewer funds do not presently have sufficient resources to repay interfund loans owed to the village general fund without affecting their operations. This lack of available funds resulted from village officials not monitoring and adjusting water and sewer rates to ensure resources were adequate to repay the loans.
Town of Coldspring – Town Clerk Operations (Cattaraugus County)
The town clerk did not issue press-numbered duplicate receipts for cash collected, accurately record all transactions, remit moneys due to the town supervisor and other entities in a timely manner, or deposit cash receipts intact or in a timely manner. Auditors found a shortage in the clerk’s account totaling $1,400 which is primarily due to money owed to the town supervisor, unrecorded checks, and unpaid liabilities.
City of Glens Falls – Financial Condition (Warren County)
The city council adopts realistic budgets, and along with the mayor and city controller, continually monitors the budgets throughout the year and will initiate and approve any necessary budget amendments. Although the city is not considered to be in fiscal stress at this time, low levels of unexpended surplus funds in the general fund and declining balances in the water and sewer funds are concerning. City officials indicate they are carefully monitoring the funds.
Grahamsville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board has not properly developed annual budgets. From 2009 through 2011, actual expenditures exceeded budget estimates each year by an average of 22 percent. In addition, the district has not formally established reserve funds and has not adopted formal policies on how they are to be funded and how they will be used.
Town of Kendall – Justice Court (Orleans County)
Auditors found significant control deficiencies with the justice court’s operations. Justices did not ensure that all court fines, fees, and surcharges were properly accounted for. Although monthly reports were submitted to the justice court fund in a timely manner, they were not always complete and accurate. Further, the justices did not ensure that cases were properly reported to the state Department of Motor Vehicles.
Mastic-Moriches-Shirley Community Library – Claims Processing (Suffolk County)
Library officials have established adequate controls over the claims processing function that allow claims to be audited in a timely manner and ensure the claims are properly supported. The account clerk and/or director reviews invoices for department head approvals before printing checks and a schedule of claims to present to the board, which then audits the claims before signing the checks. Finally, the claims auditor performs a post-audit of the claims paid.
Roosevelt Fire District – Financial Operations and Information Technology (Nassau County)
The district board needs to improve its oversight of financial operations. Auditors found the treasurer submits monthly financial reports to the board that contain incomplete information, and the district’s financial records have not been audited by an independent public accountant since the 2010 fiscal year. In addition, internal controls over information technology are not appropriately designed or operating effectively.
Schuyler County Sheriff’s Department – Payroll, Civil Fees and Bail (2013M-120)
The county entered into an improper contract for security services with Watkins Glen International (WGI), a private entity. Over the last two years, the county has paid 351 individuals $233,840 for providing law enforcement services to WGI in connection with events at the Watkins Glen racetrack. In these cases, the county improperly pays these individuals as if they were independent contractors by check based on completed vouchers and issues them an IRS 1099 form at the end of the year. As a result, no taxes are reported or withheld, and no information is reported to the state retirement systems.
Steuben County Soil and Water Conservation District – Internal Controls Over Cash Receipts and Disbursements (2013M-97)
The conservation district board has not adopted policies and procedures for cash receipts and disbursements to ensure that cash is properly safeguarded. Auditors found 116 receipts totaling $47,443 were not deposited on a timely basis, 14 disbursements totaling $23,943 never appeared on a warrant for board approval, and 151 disbursements totaling $532,322 cleared the bank prior to the board’s audit and approval for payment.
The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.]
Town of Alexandria – Non-Payroll Cash Disbursements and Fuel Inventory (Jefferson County)
The town’s non-payroll cash disbursements were not always properly authorized, adequately supported or in compliance with statutory requirements. The former supervisor improperly paid 20 claims totaling $19,919 without the audit and approval of the board. Auditors also found internal controls over fuel inventories need to be improved. Records show from June 2011 through December 2011 nearly 4,500 gallons of fuel valued at about $14,600 were not accounted for.
Village of Bolivar – Financial Condition of Water and Sewer Funds (Allegany County)
The village board has not adequately monitored the financial condition of the water and sewer funds. The water and sewer funds do not presently have sufficient resources to repay interfund loans owed to the village general fund without affecting their operations. This lack of available funds resulted from village officials not monitoring and adjusting water and sewer rates to ensure resources were adequate to repay the loans.
Town of Coldspring – Town Clerk Operations (Cattaraugus County)
The town clerk did not issue press-numbered duplicate receipts for cash collected, accurately record all transactions, remit moneys due to the town supervisor and other entities in a timely manner, or deposit cash receipts intact or in a timely manner. Auditors found a shortage in the clerk’s account totaling $1,400 which is primarily due to money owed to the town supervisor, unrecorded checks, and unpaid liabilities.
City of Glens Falls – Financial Condition (Warren County)
The city council adopts realistic budgets, and along with the mayor and city controller, continually monitors the budgets throughout the year and will initiate and approve any necessary budget amendments. Although the city is not considered to be in fiscal stress at this time, low levels of unexpended surplus funds in the general fund and declining balances in the water and sewer funds are concerning. City officials indicate they are carefully monitoring the funds.
Grahamsville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board has not properly developed annual budgets. From 2009 through 2011, actual expenditures exceeded budget estimates each year by an average of 22 percent. In addition, the district has not formally established reserve funds and has not adopted formal policies on how they are to be funded and how they will be used.
Town of Kendall – Justice Court (Orleans County)
Auditors found significant control deficiencies with the justice court’s operations. Justices did not ensure that all court fines, fees, and surcharges were properly accounted for. Although monthly reports were submitted to the justice court fund in a timely manner, they were not always complete and accurate. Further, the justices did not ensure that cases were properly reported to the state Department of Motor Vehicles.
Mastic-Moriches-Shirley Community Library – Claims Processing (Suffolk County)
Library officials have established adequate controls over the claims processing function that allow claims to be audited in a timely manner and ensure the claims are properly supported. The account clerk and/or director reviews invoices for department head approvals before printing checks and a schedule of claims to present to the board, which then audits the claims before signing the checks. Finally, the claims auditor performs a post-audit of the claims paid.
Roosevelt Fire District – Financial Operations and Information Technology (Nassau County)
The district board needs to improve its oversight of financial operations. Auditors found the treasurer submits monthly financial reports to the board that contain incomplete information, and the district’s financial records have not been audited by an independent public accountant since the 2010 fiscal year. In addition, internal controls over information technology are not appropriately designed or operating effectively.
Schuyler County Sheriff’s Department – Payroll, Civil Fees and Bail (2013M-120)
The county entered into an improper contract for security services with Watkins Glen International (WGI), a private entity. Over the last two years, the county has paid 351 individuals $233,840 for providing law enforcement services to WGI in connection with events at the Watkins Glen racetrack. In these cases, the county improperly pays these individuals as if they were independent contractors by check based on completed vouchers and issues them an IRS 1099 form at the end of the year. As a result, no taxes are reported or withheld, and no information is reported to the state retirement systems.
Steuben County Soil and Water Conservation District – Internal Controls Over Cash Receipts and Disbursements (2013M-97)
The conservation district board has not adopted policies and procedures for cash receipts and disbursements to ensure that cash is properly safeguarded. Auditors found 116 receipts totaling $47,443 were not deposited on a timely basis, 14 disbursements totaling $23,943 never appeared on a warrant for board approval, and 151 disbursements totaling $532,322 cleared the bank prior to the board’s audit and approval for payment.
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