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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
November 26, 2014
Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege
November 25, 2014
November 24, 2014
Lowther v County of Rockland, 2014 NY Slip Op 08018, Appellate Division, Second Department
General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html
November 21, 2014
Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure
* The Court of Appeals noted that a subsequent subsection of the CBA provided that “no eligible teacher may be discharged without the process prescribed in Education Law §§3020 and 3020-a..”
** The portion of Education Law §3020(1) relevant to the issues raised in this action states: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation, or in accordance with alternative disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that becomes effective on or after September first, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty-a or the alternative disciplinary procedures contained in the collective bargaining agreement" (emphasis by the Court).
The decision is posted on the Internet at:
November 20, 2014
An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits
November 19, 2014
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipalities listed below. Cick on text highlighted in color to access the full report
The town clerk did not properly safeguard taxpayer funds. As a result, auditors could not determine if the clerk is receiving, recording, depositing, disbursing and reporting all the money owed to the town and/or paid to her. In addition, the clerk and code enforcement officer failed to compare the money received for building permits with the permits actually issued.
Bethlehem Public Library – Selected Cash Receipts (Albany County)
The board has established adequate internal controls for processing over-the-counter cash receipts to ensure that all cash collections are properly accounted for and deposited timely and intact. These controls include policies and procedures that provide guidance to the library staff involved in the cash collection process. The procedures also adequately segregate duties within the cash collection process to ensure that no one individual controls all phases of a transaction.
The significant revenue and expenditure projections in the preliminary budget are reasonable, except for the estimated revenues from Federal Emergency Management Agency reimbursements. Although the budget does slightly raise taxes for all funds, town officials did not include a contingency amount in the budget, which would provide for anticipated events and could help to improve the town’s financial position. The town has adopted a local law to override the tax levy limit in 2015.
City of Cohoes – Purchasing (Albany County)
Because city officials did not consistently seek appropriate competition for purchases, they cannot assure taxpayers that they are obtaining the best price possible, as well as the desired quality and quantity, for goods and services. Auditors found the city made purchases totaling $145,759 from three vendors without using competitive bidding or state contract pricing, as required by law.
The revenue and expenditure projections in the proposed budget are reasonable. The town’s preliminary budget complies with the property tax levy limit.
The significant revenue and expenditure projections in the proposed budget are reasonable. Additionally, town officials have increased the real property tax levy for the general fund and implemented cost saving measures in the highway funds to help address the town’s declining financial condition. The town has adopted a local law to override the tax levy limit in 2015.
The treasurer did not prepare adequate monthly reports. Auditors found the treasurer’s monthly financial reports consisted of a listing of department bank account balances. However, the department bylaws require the treasurer to keep a complete record of all funds received and disbursed and furnish a report showing this activity at the department’s regular meetings.
The significant revenue and expenditure projections in the tentative budget are reasonable. The town’s 2015 tentative budget complies with the property tax cap levy limit.
The town justice did not maintain complete and accurate accounting records. Bank reconciliations, month-end accountabilities and reports submitted to the state Justice Court Fund were not accurate. Also, the justice did not maintain adequate case files and did not take appropriate action to ensure that fines and fees were collected in a timely manner.
The village board consistently appropriated excessive amounts of fund balance in the general fund to finance operations which caused this fund to be in fiscal stress at the end of the 2013-14 fiscal year. The board also overestimated expenditures for the water and sewer funds with the intention of increasing the levels of fund balance to guard against unforeseen repairs and finance future capital costs.
The agency’s process for billing, collecting and recording of PILOTs was efficient and payments were accurately billed and collected. However, PILOT payments were not always distributed to affected taxing jurisdictions within 30 days, as required by law.
The significant revenue and expenditure projections in the tentative budget are reasonable. To address fiscal concerns, the board has proposed real property tax levy increases in the general and highway town-wide funds. However, these increases alone may not fully address the town’s potential for fiscal stress. The town’s tentative budget complies with the property tax levy limit.
The board did not ensure that foreign fire insurance tax moneys were spent in accordance with the special act that created the association. Although the 106 payments made during 2013 totaling $49,545 were supported with itemized claims, it is unclear if they were all proper because the association bylaws were not adequately detailed regarding allowable expenditures.
Town officials have not developed adequate policies, procedures or financial plans to govern budgeting practices and the amount of unexpended surplus funds to maintain. The board has repeatedly adopted budgets with unrealistic estimates of revenues, expenditures and the amount of fund balance that would be used. Therefore, the town has levied more real property taxes than necessary and accumulated a significant amount of unexpended surplus funds.
Town of Otsego – Financial Condition (Otsego County)
The budgets for the town’s four operating funds varied significantly from the actual results each year. Over a four-year period, auditors found each of the funds’ estimates generally varied from actual results. For example, the general town-wide and highway part-town funds overestimated revenues and expenditures; the general part-town fund underestimated revenues and overestimated expenditures; and the highway town-wide fund underestimated both revenues and expenditures.
Auditors reviewed the local law adopted by the town board establishing a tax relief rebate program and a sample of tax rebates issued during the 2013 fiscal year. Because the State Constitution prohibits towns from loaning or giving money to any private corporation or person, including property owners and residents, the town lacked authority to issue the tax refunds to property owners without a special act from the State Legislature.
Village officials did not always use competitive procedures for the procurement of goods and services as required by law. Auditors found a contract for public work for $51,150 and two equipment purchase contracts for $50,000 and $109,970 that were not competitively bid. As a result, the village may have incurred higher costs than necessary.
The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the town’s projections for rental income in the hospital fund were not based on amounts expected to be received according to current lease agreements. The town’s preliminary budget complies with the property tax levy limit.
The board did not ensure that cash disbursements and receipts were properly accounted for because it did not implement proper internal controls over the department and the three companies. Auditors found that 134 of the department’s and companies’ expenditures totaling $47,093 lacked sufficient support and/or board approval to verify that they were appropriate.
District officials did not obtain quotes or requests for proposals for most professional services during the audit period. The district made payments to eight professional service vendors totaling $153,238 for six types of services. In 2013, the cost of these services consisted of $84,584 for insurance coverage, $11,086 for legal services, $10,675 for physician services, $7,800 for investment management services, $5,000 for external audit services and $650 for engineering services.
The town’s claims processing policies and procedures are adequate. Board members approve the payment of claims against the town each month by reviewing and signing an abstract listing current claims for goods and services provided.
A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party
November 18, 2014
On November 18, 2014, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the school districts listed below.
District officials have taken appropriate action to manage the district’s financial condition. Officials provided for effective financial planning and management by ensuring unrestricted unappropriated fund balance levels are in accordance with statutory requirements, and budget estimates and reserve balance levels are reasonable.
General Brown Central School District – Financial Condition (Jefferson County)
The board has balanced recent budgets with appropriations of fund balance and reserves while limiting tax increases, resulting in a deficit unrestricted fund balance of $435,655 at the end of fiscal year 2012-13. District expenditures, specifically those related to employee benefits, increased by more than $1.2 million since the 2008-09 fiscal year despite the elimination of 46 positions over the last four fiscal years.
Onondaga Central School District – Non-payroll Disbursements (Onondaga County)
District officials need to improve internal controls over non-payroll disbursements. The accounts payable clerk performed all non-payroll disbursement processes for the general fund with little oversight or any other compensating controls. The clerk is responsible for recording all general fund non-payroll disbursement transactions, initiating check printing, receiving printed checks and distributing checks.
Over the last three fiscal years, the district developed budgets that were reasonable and based on historical or known expenditures. District officials have also implemented multiple cost-savings measures in an effort to minimize expenses. For example, due to anticipated increases in health insurance premiums, the district switched to lower cost health insurance coverage during the 2011-12 fiscal year and achieved savings of approximately $850,000 in the first year of the change.
The board did not adopt realistic, structurally balanced general fund budgets or adequately monitor the financial activity of capital projects to ensure fiscal stability. The board also did not adopt a policy regarding establishing an adequate level of unrestricted fund balance to maintain. As a result, the general fund’s financial condition has diminished in recent years. In addition, the district spent $741,000 more than the total amounts authorized for two projects causing a fund balance deficit in the capital projects fund in that amount.
District officials did not always seek competition for professional services and did not have documentation to support why contract providers were chosen for all professional service contracts. The district did not have adequate documentation to support the payment of certain claims made to professional service providers.
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department
November 17, 2014
The Appellate Division sustained a Supreme Court ruling that the New York State Division of Human Rights did not violate the State’s Freedom of Information Law [FOIL] when it denied Jerald Miller’sFOIL request for certain documents.
November 15, 2014
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014
Department of Health: Unnecessary Medicaid Payments for Children at Voluntary Agencies (Follow-Up) (2014-F-5)
An initial audit report issued in September 2012 found that DOH could save millions of Medicaid dollars annually by assessing and modifying certain policies and practices that drive the costs of medical care provided to children placed at voluntary agencies. In a follow-up report, auditors found DOH has made progress in implementing the recommendations made in the initial audit report. Of the report’s five audit recommendations, three were implemented, one was partially implemented and one was not implemented.
Department of Health: Medicaid Program: Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (2013-S-57)
Medicaid made $12,378,309 in overpayments for low birth weight payments that did not meet the necessary requirements. For example, Medicaid paid one managed care organization $99,044 for a low birth weight payment based on a reported newborn birth weight of 215 grams. However, the newborn’s actual birth weight was 3,215 grams. Medicaid should have only paid the MCO $3,232. There was an additional $949,681 in potential overpayments for similar claims at high risk of not meeting the billing requirements for supplemental low birth weight claims. Medicaid paid $548,404 in duplicate fee-for-service and managed care low birth weight newborn claims. At the time the audit fieldwork concluded, auditors recovered more than $7 million of the overpayments identified.
Department of Labor: Amusement Park and Fair Ride Safety (2014-S-47)
Auditors conducted site visits at 53 locations across the state covering almost 1,000 rides and found each of the rides being operated at all of the 53 locations had been inspected and permitted as required.
Department of Motor Vehicles (DMV): Driver Responsibility Assessment Program (2013-S-53)
DMV accurately assessed all program fees and either collected these fees or suspended the licenses or the privilege to obtain a license of drivers who did not pay. However, the DMV needs to improve its internal controls over manual adjustments made to the program database by ITS staff.
Metropolitan Transportation Authority: MTA-NYC Transit Medical Assessment Centers (2013-S-33)
On a unit cost basis, auditors determined that Medical Assessment Centers (MAC) run by the MTA to gauge drivers’ health and ability to do their jobs were not more costly than using a contractor that previously performed the work. Auditors also concluded that there are opportunities to attain further efficiencies in the MAC program.
New York City Department of Buildings: Outstanding Violations (Follow-Up) (2014-F-13)
An initial report, issued in December 2011, found that New York City Department of Buildings managers did not have effective systems in place to ensure hazardous violations were resolved quickly. In a follow-up, auditors found the department has made progress in addressing the issues identified in the initial report. Of the four prior recommendations, two have been implemented and two have been partially implemented.
New York State Health Insurance Program: Empire BlueCross BlueShield – Selected Payments for Special Items for the Period April 1, 2011 Through June 30, 2011 (Follow-Up) (2014-F-6)
In an initial report, auditors determined Empire did not have adequate controls to ensure special items were paid according to contract limitations. As a result, Empire made a net overpayment of $119,141 on 33 claims. In a follow-up report, auditors found Empire officials made considerable progress in implementing the recommendations made in the initial audit report. Of the three prior recommendations, two were implemented and one was partially implemented. Empire recovered the overpayments from hospitals, implemented controls to ensure payments for special items are made in accordance with hospital agreements, and made significant progress to ensure that future agreements with hospitals contain language limiting the reimbursement of special items.
Port Authority of New York and New Jersey: Vehicle and Heavy Equipment Purchase Program (Follow-Up) (2014-F-2)
An initial report issued in December 2010 found that the Port Authority generally did not follow required procedures to ensure that the acquisition of vehicles and heavy equipment was justified. In a random sample of 75 items that were purchased for $8.2 million, the Port Authority provided documentation for only two items for $192,279. In addition, the Port Authority included funds for vehicle and equipment rentals in its annual Purchase Program. Auditors also found that the car service contract amounts were excessive compared to the amount the Port Authority actually spent. In a follow-up, auditors found the Port Authority has made some progress in addressing the issues identified earlier. Of the eight prior recommendations, two were implemented, and three were partially implemented and three were not implemented.
November 13, 2014
November 12, 2014
November 7, 2014
November 6, 2014
The Unemployment Insurance Appeal Board is bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct
November 5, 2014
If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance
2014 NY Slip Op 07412, Appellate Division, Third Department
November 3, 2014
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.