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Monday, April 30, 2018

Rules of Practice - New York City Office of Administrative Trials and Hearings


New York City Office of Administrative Trials and Hearings

Rules of Practice 

[as of May 1, 2018]


Click on text highlighted in color to access the text of the Rules.


CHAPTER I

  Subchapter A - General Matters


 

                                                                                           Subchapter B - Rules of Conduct

 View Chapter I Subchapter B

                                                                                           Subchapter C - Pre-Trial Matters



                                                                                            Subchapter D - Trials and Hearings



CHAPTER II

 Subchapter A - Additional Rules for Prequalified Vendor Appeals


Subchapter B - Reserved


Subchapter C - Additional Rules for Human Rights Cases

 

View Chapter II Subchapter C


Subchapter D

Additional Rules for Post-Seizure

Review of Impoundment of Vehicles



Employee terminated following the loss of the license required to perform the duties of the position


Employee terminated following the loss of the license required to perform the duties of the position
Williams v City of Yonkers, 2018 NY Slip Op 02827, Appellate Division, Second Department

The appointing authority informed Glennie Williams that as he no longer possessed a valid New York State class B commercial driver license which was a minimum qualification for his position unless he obtained such a license by August 28, 2009, his employment would be terminated.

Although the Williams' complaint was dismissed on procedural ground,* set out below are a number of decisions in which the impact of the employee's loss of a license required to perform the duties of the position was considered.

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

It is well settled that where a statute requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. 

In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183.

The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. There is nothing, however, that would prevent the appointing authority from placing the individual in another position for which he or she is qualified for which a license is not required.

Typically courts view the loss of the required credential, be it a license to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service, or performing such tasks, by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.

In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lekkas the court held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

All that appears to be necessary in a “lost license or permit” situation is for the appointing authority to make a reasonable inquiry to determine if the employee possesses the license or permit required to lawfully perform the duties of the position prior to his or her being barred from performing the duties of the position.

The basic rules concerning the possession of a valid license or permit:

1. Where the license or permit is essential to the individual's lawfully performing his or her work, the courts have approved the termination or suspension without pay of the employee from his or her position if the required license or permit is revoked or suspended or has expired.

2. If the possession of the license or permit is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license or permit is not fatal to the employee's continuation in service. This situation is typical where a driver's license may be included as a minimum qualification for appointment to the position but the individual is not required to operate a motor vehicle in order to perform his or her duties.

Additionally, PERB has ruled that where the duties of a position require the incumbent to possess a valid license, the employer's issuing a directive that the appropriate employees obtain, or maintain, such a license is a non-mandatory subject of collective bargaining [see CSEA Local 1000 and State of
New York, 27 PERB 3018].

* The  Williams decision is posted on the Internet at: 


Thursday, April 26, 2018

Audit reports released by State comptroller DiNapoli on April 25, 2018


Audit reports released by State comptroller DiNapoli on April 25, 2018
Click on text highlighted in color to access the full report.

Brentwood Public Library – Leave Accruals (Suffolk County)
Leave accrual records for business office employees were overstated by a total of 272 hours. Vacation, sick and personal leave earned exceeded collective bargaining agreement limits, and vacation and sick leave was accrued and/or used at rates other than specified.

Emergency Service Communication Surcharges (2017MS-4)
Each county in this audit could improve controls over E911 revenues. One county (
Schenectady) made significant improvements in controls over E911 revenues. However, because no resource exists to identify all the communication suppliers operating within the counties audited, county officials were unable to determine whether all E911 surcharges were received from their suppliers. As a result, officials cannot be sure that their county received all the surcharges to which it was entitled.

Village of Milford – Board Oversight (Otsego County)
The clerk-treasurer performs all village financial transactions with little board oversight, including the billing and collection of water usage charges, the collection of real property taxes and the disbursement of village funds. Although the mayor dual-signs checks with the clerk-treasurer, no one reviews bank statements, canceled check images or monthly reports and reconciliations that the clerk-treasurer prepares. Furthermore, the board did not perform the required annual audit of the clerk-treasurer’s records.

Village of Nassau – Budgeting (Rensselaer County)
While the adopted general fund budgets included reasonable revenue estimates, appropriations significantly exceeded expenditures. The variance between appropriations and expenditures has increased from 5.9 percent in 2014-15 to 30.9 percent in 2016-17. The board’s budgeting practices resulted in an unrestricted fund balance increase of $97,547 (25.7 percent) over the three-year period.

Town of Pendleton – Special Districts (Niagara County)     
The town has three sewer districts but the supervisor recorded and reported all sewer operation revenues and expenditures as one special district. In addition, the board does not adopt individual budgets for each sewer district. Capital costs are allocated to three sewer districts, but operating and maintenance costs are combined under one district

Wednesday, April 25, 2018

DiNapoli urges department of labor to improve investigations of hours worked by nurses


DiNapoli urges department of labor to improve investigations of hours worked by nurses

Click on text highlighted in color to access the full report.

The state Department of Labor (DOL) does not investigate overtime complaints by nurses in a consistent or timely basis, according to an auditreleased today by New York State Comptroller Thomas P. DiNapoli.

“Patients need care around the clock, and nurses are often required to stay and work extra hours,” DiNapoli said. “Chronic overtime and longer shifts for nurses need to be watched closely by the state so patient care is not jeopardized, nurses are not overworked and employers are complying with the law. The Department of Labor needs to do a better job investigating complaints from nurses about working overtime to keep patients safe.”

For the period of Jan. 1, 2015 to June 30, 2017, auditors examined whether DOL was adequately enforcing the law that imposes restrictions on the consecutive hours that can be worked by nurses in non-emergency situations. Under the law, if nurses feel their employers violated the law, they can file a complaint with DOL. Between Jan. 1, 2015 and May 23, 2017, DOL closed 186 cases regarding 540 complaints.

Auditors found DOL lacked effective policies and procedures for investigating complaints. This resulted in inconsistencies and anomalies in investigations and differing outcomes based on the same or similar sets of circumstances.

DiNapoli’s auditors selected a sample of investigations to review and found in 128 of 207 complaints that DOL did not contact the complainants after the investigation was concluded. For 33 of 165 complaints about state agency facilities, DOL took the word of the facilities that no mandatory overtime occurred without any supporting documentation. In 10 of 23 cases, there was no record of DOL making a decision about the complaint.

DOL also does not have set time frames for investigating complaints. It is DOL’s practice to combine complaints and investigate them together as a single case. Auditors found this practice resulted in significant delays in initiating and completing investigations, particularly related to state agencies. In a sample of cases reviewed, it took about 57 days before complaints about state agencies overtime practices were investigated compared to 42 days for private or local facilities. To complete an investigation, DOL averaged 351 days for state facilities and 138 days for private or local facilities.

Among several recommendations, auditors urged DOL to:

Establish policies and procedures to ensure that nurse overtime complaints are investigated timely using consistent methods and application of the law;

Improve its case management system so it can better track complaints and investigations in a more comprehensive manner; and

Establish an outreach and education program to ensure that all covered employers are aware of the law and its requirements.

DOL officials did not agree with all of the auditors’ conclusions and stated the department works closely with employee representatives and with other state agencies as part of its enforcement approach. Department officials indicated they had implemented a number of changes as a result of the audit. The full response is included in the audit.


Monday, April 23, 2018

Internal Revenue Service Guidelines and retirement advisory opinion letters

The Internal Revenue Service has begun issuing opinion/advisory letters for pre-approved defined benefit retirement plans restated for the 2012 Cumulative List, and changes the pre-approved plan program for cash balance plans.

The NY State Employees' Retirement System and the NY State Teachers' Retirement System together with the NYC public retirement systems, are defined benefit plans.

In contrast, the New York State University Optional Retirement Program, available to certain employees of the State University of New York, the Community Colleges, and the Statutory Contract Colleges at Cornell and Alfred Universities, the New York City Board of Higher Education's Optional Retirement Program available to certain employees of the Board of Higher Education, and the New York State Department of Education's Optional Retirement Program, available to certain employees of the New York State Department of Education, are defined contribution retirement programs.


The reader should be mindful of the fact that individuals electing to participate in theses several Optional Retirement Programs* are not members in any public pension or retirement system  of the State or a civil division there of within the meaning of Article VI, §7(a).**



Education Law Title 1, Article 8-B §396, with respect to SUNY, the community colleges and the statutory contract colleges, provides as follows: 


§396. Employer not liable for payment of benefits. Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.

Education Law Title 1, Article 3, Part V, §186, with respect to employees of the State Department of Education, provides as follows: 

§186. State not liable for payment of benefits. Neither the state nor the department shall be a party to any contract continued in whole or in part with contributions made under the education department optional retirement program established and administered pursuant to this part V of this article. No retirement, death or other benefits shall be payable by the state or by the department under such education department optional retirement program, except as otherwise provided in section 184. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.

Education Law Title 7, Article 125-A §6255, with respect to employees of the New York City Board of Higher Education, provides as follows: 

§6255. City not liable for payment of benefits. Neither the city nor the board shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the city or by the board under such optional retirement program. Such benefits shall be paid to  electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.

* The author of this NYPPL blog entry, Harvey Randall, Esq. drafted and implemented Article 8-B of the Education Law, the State University of New York's Optional Retirement Program, and advised Robert Stone, Esq., then Counsel, New York State Department of Education and Arthur Kahn, Esq. then Counsel, New York City Board of Higher Education, with respect to the drafting of the statutes establishing Optional Retirement Programs for those entities.

** Article VI, §7(a) provides as follows: §7. (a): After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired. 

The IRS Guidelines are posted on the Internet at:

Friday, April 20, 2018

Conducting school district board and business meetings


Conducting school district board and business meetings
Appeal of Bruce, Decisions of the Commissioner of Education, Decision No. 17376

This decision by the Commissioner of Education addresses a number of significant issues involving properly conducting Board Meetings and district business meetings.

Among the issues addressed by the Commissioner are the following:

1. Several procedural issues with respect the Commissioner having jurisdiction

2. Conducting board and business meetings without notice to the public

3. Following the law and rules concerning initiating and completing capital construction projects.

4. Conforming with relevant building code requirements.

The Commissioner concludes her decision with the following admonitions to the respondents in this appeal:

Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning respondent’s actions in failing to follow procedures required for capital projects in conducting the Black Box heater/classroom project.  The violations of law involved were serious, and the failure to treat the project as a capital project and submit the plans and specifications for the project, or a summary thereof, to SED for approval placed the health and safety of students and other occupants of the space at risk.  I also note that the record indicates that petitioner, who has an engineering background, observed deficiencies in the Black Box Theater space that he believed raised building safety concerns.  He raised those concerns with respondent and then contacted me, which led to the site inspection by SED, and ultimately to remediation of the building code violations that were found.  Whether or not members of respondent board appropriately chastised petitioner for acting independently of the board, the fact remains that petitioner’s decision to report the building code violations to SED resulted in the protection of the health and safety of students and others who occupied the Black Box Theater space.  



Decision No. 17,376

Appeal of KENNETH M. BRUCE from action of the Board of Education of the City School District of the City of Albany regarding the manner of conducting board meetings and district business.
Decision No. 17,376
(April 16, 2018)

Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioner, a former board member[1], appeals certain actions taken by the Board of Education of the City School District of the City of Albany (“respondent” or “board”).  While the petition is not clear, petitioner’s allegations stem from two actions undertaken by respondent: specifically, a meeting of other board members and counsel held on June 30, 2016, and construction of a theater/classroom referred to by petitioner as the “Black Box Theater.”  The appeal must be dismissed. 

The parties do not dispute that on June 30, 2016, all other members of the board and the school attorney, met, without providing notice to petitioner or the public.[2]  

The parties also do not dispute that the theater/classroom project (“project”) that resulted in use of the space as the Black Box Theater was completed between June 2015 and March 2016 in the Abrookin Career and Technical Center, a school located within respondent’s district.   It is also undisputed that the project was erroneously treated as a minor maintenance project, even though it involved reconstruction at a cost in excess of $130,000. It appears from the record that the project did not follow the rules and procedures for capital projects as it was not approved by the voters as required by Education Law §416; plans and specifications for the project, or an outline thereof, were not submitted to the New York State Education Department (“SED”) for approval of the Commissioner prior to construction as required by Education Law §408(1); and it was constructed without an architectural plan and was used as a theater without a certificate of occupancy.[3]  The parties also do not dispute that, in July 2016, SED conducted a site inspection and identified numerous areas of nonconformance with applicable building codes that needed to be remedied before the space could be used as instructional space.  In its answer, respondent admits that SED determined:

[T]he space was non-compliant with the Uniform Code and required an immediate fix which included 12 safety adjustments, including deconstructing the stage and the seating risers.

Respondent then determined that it would undertake the work needed to correct the cited building code violations identified by SED and the space would be returned to use as classroom space. Upon completion of the work, SED issued a certificate of occupancy for use of the space as classroom space commencing with the start of classes in September of the 2016-2017 school year.

The record indicates that respondent retained an attorney, James Evans, from Damon Barclay, LLP, the law firm that also served as bond counsel to the district, to conduct an “audit/investigation” of the project.  The record also indicates that respondent retained its “internal auditor,” Marvin & Co., “to support the audit/investigation” of the project.

As stated above, the petition is not clear, but it appears that petitioner challenges two sets of actions undertaken by respondent, specifically, a meeting of other board members and counsel held on June 30, 2016, and respondent’s various actions surrounding the construction  of the theater/classroom, including its audit/investigation of the project and response to such audit/investigation, culminating in a March 7, 2017 statement by respondent regarding changes in district procedures for evaluation and implementation of small facilities projects.

With respect to the June 30, 2016 meeting, petitioner argues that he was “involuntarily excluded” from the meeting and that his exclusion “violated [his] right as a duly elected board member.”  Petitioner further argues that he was never provided with “proof that this particular meeting was covered by one of the exemptions to [New York State] Open Meetings Law” (“OML”).  

With respect to respondent’s actions surrounding the construction and eventual demolition of a theater/classroom, petitioner alleges that it was built “without following any of the policies, procedures, statues or laws.”  Petitioner also alleges that the “board voted on multiple occasions, to overlook this situation ...” and “conduct[ed] a watered down investigation using investigators, who were not independent.”

Petitioner also alleges that “the rights of Albany residents have been violated” because of his “systemic exclusions from important debate and deliberations related to the business of the [school district]” and that the actions of the board are not only a “personal affront” but “disrespectful and insulting to Albany citizens.”

Petitioner does not include a request for specific relief, though the petition does contain specific allegations of violations of law committed by respondent.  He states that he could find “no similar situation within New York” and therefore, he has “no recommended remedy” and requests only such appropriate relief as the Commissioner deems just and proper. 

Respondent argues that the appeal must be dismissed as untimely, for mootness, for failure to state a claim, and because the petition is not properly verified.  Respondent also argues that certain claims should be dismissed.  With respect to petitioner’s claim that the June 30, 2016 meeting violated OML, respondent argues that the Commissioner lacks jurisdiction over OML claims and that, in any event, respondent acted lawfully.  With respect to petitioner’s claims on behalf of others, respondent argues that petitioner lacks standing.  Finally, respondent argues that “to whatever extent a claim may be made for removal of any member of the [b]oard,” petitioner has failed to name and serve necessary parties.

I will first address several procedural issues. Respondent alleges that the petition lacks proper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition contains 127 paragraphs and the verification is on page five of the petition, after paragraph four.  Respondent argues that this “raises sufficient doubt” as to whether paragraphs five through 127 have actually been verified.  However, while there is a blank verification form on page 5 of the petition, the petition submitted to my Office of Counsel contains the required verification, which properly attests to all allegations in the petition.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of K.M. and T.M., 57 Ed Dept Rep, Decision No. 17,095, pet. to rev dsmd sub nom Carthage UFSD v. Commissioner of Educ, et al. Sup. Ct. Albany Co. (Mott, J.) 11/28/17, n.o.r.; Appeal of Johnson, 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Accordingly, I decline to dismiss the petition for lack of proper verification.

I note that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (see 8 NYCRR §275.10).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see, Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029). 

The petition in this appeal consists of 62 pages with a narrative of events that involve alleged wrongdoing by respondent, but contains no request for relief as required by 8 NYCRR §275.10, and indeed specifically requests that I determine what relief should be granted.  In his reply, petitioner asserts that he is not seeking removal of any board members, which means that the petition is not intended as an application for removal under Education Law §306.  Thus, in declining to make any request for relief and affirmatively requesting that I determine what relief may be appropriate, petitioner is effectively asking that I investigate the matter and take appropriate action.  However, it is well settled that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  The Commissioner has previously ruled that where the sole relief sought is an investigation, the appeal must be dismissed (see, Appeal of Race, 53 Ed Dept Rep, Decision No. 16,567; Appeal of Levendusky, 52 id., Decision No. 16,455).  As described above, I am unable to discern the nature of the relief sought by petitioner, and thus cannot assess whether petitioner is entitled to any such relief. Respondent has been placed in the position of speculating about what relief is being sought and what possible defenses should be raised in light of such request for relief, which is prejudicial to respondent.   Thus, petitioner has violated 8 NYCRR §275.10 by failing to present a clear and concise statement of his claim, showing he is entitled to relief, and the appeal must be dismissed on that basis.

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). 

To the extent petitioner claims that respondent violated the Open Meetings Law with respect to the June 30, 2016 meeting, the appeal must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

All of the actions taken by respondent of which petitioner complains occurred in the past and have concluded, and there is no live controversy.  With respect to petitioner’s claims that he was unlawfully excluded from the June 30, 2016 meeting, has been systemically excluded thereafter from deliberations of the board of education and his ability to act as a board member has been thus impaired, the record indicates that petitioner resigned from the board in May 2017.  With respect to respondent’s actions relating to the Black Box theater/classroom project, the record indicates that the former Black Box Theater space was renovated in 2016 to convert it back to classroom space and bring it into compliance with applicable building code standards and that SED issued a certificate of occupancy prior to the start of the 2016-2017 school year.  The record also indicates that respondent has taken steps to prevent a recurrence of such treatment of small capital projects through changes in procedures, staffing and training.  Therefore, in both instances, no meaningful relief can be granted and such claims must be dismissed.

In light of the above, I need not address the parties’ remaining contentions.
   
Although I am constrained to dismiss the appeal on procedural grounds, this decision should not be construed as condoning respondent’s actions in failing to follow procedures required for capital projects in conducting the Black Box heater/classroom project.  The violations of law involved were serious, and the failure to treat the project as a capital project and submit the plans and specifications for the project, or a summary thereof, to SED for approval placed the health and safety of students and other occupants of the space at risk.  I also note that the record indicates that petitioner, who has an engineering background, observed deficiencies in the Black Box Theater space that he believed raised building safety concerns.  He raised those concerns with respondent and then contacted me, which led to the site inspection by SED, and ultimately to remediation of the building code violations that were found.  Whether or not members of respondent board appropriately chastised petitioner for acting independently of the board, the fact remains that petitioner’s decision to report the building code violations to SED resulted in the protection of the health and safety of students and others who occupied the Black Box Theater space. 

THE APPEAL IS DISMISSED.
 

[1]Petitioner was appointed to the board in July 2014 and then elected to a four-year term in November 2014.  He served a one-year term as president of the board from January 2016 through December 2016. The record indicates that petitioner resigned from the board effective May 4, 2017, and respondent accepted his resignation on May 5, 2017.

[2]Respondent contends that the “sole intent of the meeting was for the purpose of receiving legal advice” from board counsel.  Respondent further contends that the legal advice concerned their response to actions by petitioner that were believed to place the district “at legal risk.” 

[3]Petitioner also contends that the construction and procurement contracts for the project were unlawful in that they did not meet competitive bidding requirements, which is denied by respondent.  Other than making conclusory allegations in this regard, petitioner has submitted no proof of a violation of competitive bidding requirements.


Tuesday, April 17, 2018

Audits and examination reports issued April 17, 2018 by NYS Comptroller Thomas P. DiNapoli


Audits and examination reports issued April 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report.


Village of Dansville – Water and Sewer Operations (Livingston County)
The board did not adequately segregate the water and sewer billing and collection process. In addition, the board does not properly monitor water loss.

Town of Moreau – Budgeting and Multiyear Planning (Saratoga County)
The budgeted revenues and appropriations of the town-wide general fund were reasonable as compared to the actual revenues and expenditures. However, the board adopted unrealistic estimates of revenues and appropriations in the part-town general, part-town highway, sewer and water funds.

New Hope Fire Department – Board Oversight (Cayuga County)
The board has not established written policies and procedures for cash disbursements or reviewed monthly bank reconciliations. Additionally, the board did not establish written policies and procedures for debit card usage or review the bank statements and supporting documentation to ensure debit card transactions are for appropriate department purposes.

Real Property Tax Exemptions Administration (2017MR-4)
Auditors examined real property tax exemptions in ten towns and found 51 percent of those reviewed lacked one or more pieces of supporting documentation to verify eligibility. Some exemptions lacked proper applications, renewal forms or supporting documentation. Auditors also found some town assessors misclassified or failed to grant properly supported exemptions.

Town of Shandaken – Employee Compensation and Benefits (Ulster County)
Town officials overpaid health insurance buyout incentives to two employees by more than $4,900 and underpaid incentives to two employees by $1,680 during the audit period. Town officials also did not properly withhold employee contributions for health insurance coverage.

Village of Spencer – Board Oversight (Tioga County)
The board does not periodically review bank statements, bank reconciliations or any other supporting records. Additionally, the board does not perform the required annual audit of the Clerk-Treasurer’s records and reports, further diminishing its ability to monitor the village’s financial operations

Village of Suffern – Budget Review (Rockland County)
Significant revenue and expenditure projections in the tentative budget are reasonable. However, the village budgeted $4.2 million in water meter and sewer revenue, but based on collections of water and sewer rents in prior years, auditors estimate the 2018-19 collections will be approximately $3.9 million.

City of Yonkers – Financial Operations (Westchester County)
City officials need to improve their planning and monitoring of capital projects and the use of bond proceeds. Auditors found officials did not ensure accounting records were accurate, supported and complete and they did not consistently apply accounting principles or adequately account for financial transactions that affected the city’s operations. Additionally, city officials did not perform internal audits or conduct assessments of internal controls as required.

Monday, April 16, 2018

Posting a parody of a Facebook page and Free Speech Rights


Posting a parody of a Facebook page and Free Speech Rights 
Novak v. The City of Parma, et al., 17-CV-2148 (N.D. Ohio)

Hodgson Russ, LLP, a law firm with offices in Albany, New York, Buffalo, New York, Saratoga Springs, New York and New York City, has called attention to a recent federal court decision highlighting the potential for tension resulting from posting a "parody" of a Facebook page on Facebook and the First Amendment rights of the individual doing the posting, particularly when the page involves a governmental entity.

The firm notes that the decision is especially timely, considering the proliferation of "fake Facebook pages has gained significant notoriety since the 2016 Presidential Election and resulting Russia investigation."

The full text of the Hodgson Russ article is posted on the Internet at:

Friday, April 13, 2018

Judicial immunity


Judicial immunity
Burdick v. Town of Schroeppel, USCA, Second Circuit, 17-1169-cv

In the course of reviewing an appeal from a federal district court’s decision brought by Petitioner Steven D. Burdick, the United States Court of Appeals, Second Circuit the issue of  judicial immunity from lawsuit in which Burdick alleged that his constitutional rights were violated by actions of Schroeppel Town Justice Armen J. Nazarian, Oswego, New York and County Court Judge Donald Todd, the Town of Schroeppel, Oswego County, New York* in the course of their presiding over his 2013 state court criminal trial and subsequent appeal.

The Second Circuit addressed the question of judicial immunity from litigation, explaining:

1. Judges acting in their judicial capacity are absolutely immune from suit, even where the plaintiff asserts constitutional violations under §1983, citing Bliven v. Hunt, 579 F.3d 204.

2.  Absolute judicial immunity applies even if the judge allegedly acted in bad faith or with malice. and such judicial immunity can be overcome only if (1) the act is not taken in the judge’s judicial capacity, or (2) the act, “though judicial in nature, [is] taken in the complete absence of all jurisdiction,” citing Mireles v. Waco, 502 U.S. 9.

The challenged acts in this action included typical judicial acts arising out of Burdick’s 2013 criminal conviction and appeal and acts arising out of, or related to, individual cases before the judge are considered judicial in nature.

As the judicial officials named by Burdick had jurisdiction over the criminal conviction and appeal  the district court properly concluded that they were entitled to absolute judicial immunity.

* Burdick also named a criminal defense attorney and the Oswego County Commissioner of Jurors as defendants in the federal action.


The decision is posted on the Internet at:


Thursday, April 12, 2018

Terminating the Special Counsel


In May 2017 Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller III, a former Director of the Federal Bureau of Investigation, as Special Counsel pursuant to the authority set out in 28 CFR 600. Mr. Mueller serves at the pleasure of Acting Attorney General.

Periodically there has been speculation in the media concerning possible efforts to terminate the Special Counsel from the position.

With respect to the removal of a Special Counsel, 28 CFR 600.7(d) provides as follows:

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or, in the instant situation, Acting Attorney General Rosenstein or his successor, if any]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Subparagraph (d) of Mr. Rosenstein's "ORDER NO. 3915-2017"* to Mr. Mueller setting out the terms and conditions of his appointment as Special Counsel provides that "(d) Sections 600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel."

Also, 28 CFR 600.9 Notification and reports by the Attorney General, in pertinent part, provides:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

            (1) Upon appointing a Special Counsel;

            (2) Upon removing any Special Counsel; 

* ORDER NO. 3915-2017 
APPOINTMENT OF SPECIAL COUNSEL
TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE
2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

            (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; 

and

            (ii) any matters that arose or may arise directly from the investigation; 
and

            (iii) any other matters within the scope of 28 C.F.R. §600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.
 
Date 5/17/17                                   s/Rod J. Rosenstein
                                                          Acting Attorney General


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