TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

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.

April 30, 2020

Multistate project offers 3 successful approaches for creating and disseminating health data

The results of a multistate research pilot project* offers 3 successful approaches for creating and disseminating medical data to communities. Sub-county data often are more difficult to obtain than county-level data and require additional considerations such as estimate stability, validating accuracy, and protecting individual confidentiality.

The Journal of Public Health Management and Practice has published a paper co-authored by Trang Q. Nguyen, MD, DrPH; Isaac H. Michaels,** MPH; Dulce Bustamante-Zamora, PhD; Brian Office of Public Health Practice, New York State Department of Health, Albany, New York (Dr Nguyen, Mr. Michaels, and Ms Li); Department of Epidemiology and Biostatistics, School of Public Health, University at Albany, Rensselaer, New York (Dr Nguyen, Mr Michaels, and Ms Li); Office of Health Equity, California Department of Public Health, Sacramento, California (Dr Bustamante-Zamora); Hospital Industry Data Institute, Missouri Hospital Association, Jefferson City, Missouri (Dr Waterman); Division of General Medical Sciences, Department of Medicine, Washington University School of Medicine, St Louis, Missouri (Dr Nagasako); BJC HealthCare Center for Clinical Excellence, St Louis, Missouri (Dr Nagasako); and University of Wisconsin Population Health Institute, University of Wisconsin-Madison, Madison, Wisconsin (Drs Givens and Gennuso).

The teams summarized the common themes shared by all projects as well as unique technical considerations arising during the project implementation. In addition, technical challenges and implementation challenges involved in sub-county data analyses are discussed. Lessons learned and proposed recommendations for prospective analysts of sub-county data are provided on the basis of project experiences, successes, and challenges.

The teams encourage future projects to further refine techniques for addressing these critical considerations.


* The project was funded by County Health Rankings and Roadmaps, a collaboration between the Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute. Additional research support (E.N.) was provided by BJC HealthCare and NIH/NCATS Washington University-ICTS grants UL1 TR000448 and KL2TR000450.

** NYPPL earlier noted New York State health statistics and data reports posted on the Internet by Mr. Michaels at 
https://publicpersonnellaw.blogspot.com/2020/04/new-york-covid-19-data-tracking-report.html

An abstract of the paper and a link to the text of the Journal's paper is on the Internet at:
https://journals.lww.com/jphmp/Abstract/9000/Generating_Subcounty_Health_Data_Products__Methods.99288.aspx

April 29, 2020

Application to quash a subpoena ad testificandum


Following an investigation, a tenured high school principal [Principal] employed by the New York City Department of Education [NYCDOE]  was served with charges and specifications of misconduct alleging the improper utilization of school funds for inappropriate or personal reasons.

An Education Law §3020-a disciplinary hearing was conducted and 23 of the charges and specifications filed against Principal were sustained. The Hearing Officer concluded that the appropriate penalty to impose would be termination from service. The Chancellor of NYCDOE sustained the findings of the Hearing Officer that Principal was guilty of misconduct but, citing mitigating factors including Principal's "years of unblemished service," reduced the penalty to [1] a six-month suspension without pay and [2] removal from the position of principal and [3] assignment to a nonsupervisory administrative position.

Principal subsequently entered into a "stipulation of settlement" with NYCDOE pursuant to which, among other things, NYCDOE agreed 

[1] not terminate Principal; 

[2] suspended Principal for six months without pay; 

[3] reinstate Principal to her tenured teaching position; and 

[4] assign Principal to a nonteaching position. In addition  NYCDOE and Principal mutually agreed to release the other from any future claims related to the disciplinary matter.

The a complication arose. 

Principal's representative in the §3020-a disciplinary action was a union-assigned attorney [Attorney]. During the course of the disciplinary hearing, Attorney applied for and accepted a position as executive deputy counsel with NYCDOE, whereupon Attorney recused herself from representing Principal in the then ongoing §3020-a disciplinary action. 

Principal continued pro se* through the remainder of the disciplinary hearing and entered into the stipulations of settlement described above.

Based upon the disciplinary findings, New York State Department of Education [SED] commenced a decertification proceeding to determine if Principal was of good "moral character" and entitled to retain her teaching certificate. SED then moved to apply the findings of fact made by the Hearing Office in the disciplinary hearing in the decertification hearing under color of the doctrine of collateral estoppel.

The Hearing Officer in the SED proceeding granted SED's motion subject to the qualification, among others, that collateral estoppel would not apply if Principal lacked "competent counsel" at the disciplinary hearing. At Principal's behest, the  Hearing Officer  in the decertification proceeding issued a subpoena ad testificandum** requiring Attorney, now a NYCDOE employee and nonparty witness, to testify at the decertification hearing to assist in Principal's defense against the application of collateral estoppel based upon her claim that she lacked competent counsel at the disciplinary hearing.

The Hearing Officer denied NYCDOE's motion to quash the subpoena, finding that Attorney's testimony would be relevant to Principal's defense that she lacked competent counsel. NYCDOE then moved in Supreme Court to quash the subpoena. Principal opposed the motion and sought a court order to compel compliance with the subpoena.

Supreme Court granted the motion to quash, finding, among other things, that Attorney's testimony was immaterial to the decertification hearing in that it did not concern Principal's moral character. Principal appealed the Supreme Court's decision.

The Appellate Division, explaining that the "limited issue" it was whether the subpoena ad testificandum issued in the pending SED administrative decertification matter was properly quashed by the Supreme Court.

Noting that a subpoena ad testificandum will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry, the Appellate Division, citing Kapon v Koch, 23 NY3d at page 39, said that the party moving to quash bears "the burden of establishing that the subpoena should be [quashed] under such circumstances."

Principal sought to subpoena Attorney in order to defend — in the decertification proceeding — against SED's request to collaterally estop Principal from challenging the factual findings made at the §3020-a disciplinary hearing.

Opining that factual findings made in the course of a disciplinary hearings have been given collateral estoppel effect, provided the party to be precluded "had a full and fair opportunity to be heard with respect to the charges of misconduct," the Appellate Division pointed out that the SED Hearing Officer recognized this issue and only provisionally granting SED's motion to apply collateral estoppel in the ongoing decertification proceeding.

As to Principal's contention that she "lacked competent counsel" in the §3020-a disciplinary proceeding, the Appellate Division said that the SEC Hearing Officer noted that "[e]vidence admitted to date shows that while representing ... [Principal] in the [§3020-a disciplinary] proceeding ... [Attorney] was actively seeking employment with [NYCDOE] [and, d]uring the course of the [disciplinary] proceeding .... [Attorney] was offered and accepted a position with [NYC]DOE." 

This alone, said the Appellate Division, is sufficient to allow Principal to inquire into Attorney's handling of her [§3020-a disciplinary] action "for the purpose of avoiding the application of the doctrine of collateral estoppel." 

In other words the Appellate Division deemed Attorney's testimony "highly relevant to whether collateral estoppel will be applied in the pending SED decertification proceeding."
 
Accordingly, the court found that NYCDOE had not satisfied its burden of proof with respect to its motion to quash the subpoena. While stating that it "express[es] no opinion on the ultimate merits of the collateral estoppel defense or any other issue," the Appellate Division concluded that Attorney's testimony at the decertification proceeding "is not 'utterly irrelevant' to the inquiry regarding the preclusive effect, if any, to be given to the factual findings made at the disciplinary proceeding."

Thus, it was error for Supreme Court to have quashed the subpoena.

* To act as one's own attorney.

** A subpoena ad testificandum requires a person to come to court to testify in the event the person declines to come on his own. Another type of subpoena, a subpoena duces tecum, is used to require an individual to bring specified documents, papers or writings to the court to be used as evidence.

The decision is posted on the Internet at:

April 27, 2020

New York COVID-19 Data Tracking Report Expanded

Isaac Michaels, a practicing epidemiologist and public health doctoral student at the State University of New York at Albany, has enhanced his program showing the geographic distribution of confirmed cases of COVID-19 in New York State.

Automatically updated daily, the data can be viewed without charge by clicking here: https://isaacmichaels.netlify.com/post/new-york-state-covid-19-map/

Click any topic shown in color set out below to go directly to that item.

Summary

Seeking a "retiree service letter" authorizing the retiree to carry a weapon

A Triborough Bridge and Tunnel Authority [Authority] Retiree requested the Authority to issue a "retiree service letter" to him in order to assist him in obtaining a special pistol carrying permit. When the Authority declined to issue such a letter, Retiree brought a CPLR Article 78 action seeking a court order compelling the Authority to issue a "retiree service letter" to him. The Appellate Division dismissed Retiree's Article 78 petition.

Citing Matter of Peckham v Calogero, 12 NY3d 424, the Appellate Division ruled that the Authority's denial of Retiree's request was not arbitrary and capricious as:

1. Retiree conceded that he was not authorized to carry a firearm under Authority's policy at the time of his separation from employment as he surrendered his firearm beforehand due to an injury, and 

2. Retiree did not seek reinstatement of such authorization. 

Accordingly, said the court, Retiree had no right to issuance of the retiree service letter "since his authority to carry firearms had been revoked . . . and had not been restored at the time he retired".

Turning to Retiree's claim that the Authority's refusal to issue the letter requested violated his Second Amendment rights, the Appellate Division rejected this argument explaining that the Authority's decision did not preclude him from applying for a permit "under normal legal procedures." Further, opined the court, "[e]ven assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, [Retiree] cannot demonstrate that he met the qualification standards within one year of retirement" required to bring such an action.

Addressing Retiree's argument that the Authority's refusal to issue the retiree service letter constituted a violation of the Americans with Disabilities Act, the court noted that Retiree conceded that his injury rendered him unable to perform his duties as a law enforcement officer and found "no factual basis to conclude that [the Authority's] decision was made in bad faith rather than as part of an across the board policy.

* See Matter of Laier v McGuire, 111 AD2d 43, affd 65 NY2d 904.

The decision is posted on the Internet at:


April 25, 2020

Municipal audits issued during the week ending April 24, 2020

On April 24. 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued.

Click on the text highlighted in color to access the complete text of the report.

The board did not adequately oversee the treasurer’s work or require annual audits of the treasurer’s records and reports. Auditors also found that the treasurer did not provide regular financial reports to the board or maintain adequate accounting records. In addition, the treasurer did not file Annual Update Documents (AUDs), which are the required annual financial reports, with the Office of the State Comptroller (OSC) or the board in a timely manner.

The board did not develop and manage a comprehensive investment program to ensure interest earnings were maximized. Also, village officials did not solicit interest rate quotes from additional financial institutions or prepare any cash flow forecasts to estimate the amount of funds available for investment. Had officials invested available funds in a financial institution with higher available interest rates, interest earnings could have been increased by approximately $42,200 during the audit period.

The Village lacked effective procedures to ensure water and sewer charges were accurately billed, collected and enforced. Board-adopted water rates were incorrectly set up in the billing and collection software. Customer bills were not accurately prepared. As a result, the customers auditors reviewed were underbilled by $4,758 and overbilled by $235. In addition, delinquent customer accounts were not always assessed penalties in accordance with the board-adopted local laws. As a result, based on the delinquent customer accounts auditors reviewed, the Village lost revenue totaling $3,244.

Auditors found that significant revenue and expenditure estimates in the tentative budget are reasonable. The village budgeted approximately $2.13 million in metered water revenue and $2.67 million in sewer rent revenue. However, based on collections of water and sewer rents in prior years, auditors estimate the total 2020-21 collections for water and sewer revenue will be approximately $1.94 million and $2.38 million, respectively, which is approximately $190,000 less than budgeted for water revenues and approximately $290,000 less than budgeted for sewer revenues. The tentative budget includes a tax levy of $12,426,613 which is $471,753 above the limit established by law.

April 24, 2020

Cybersecurity and COVID-19

Concerns about the impact of COVID-19 individuals and the economy has resulted in a variety of efforts by some individuals to use email, text messages, telephone calls and postings on the Internet to persuade organizations and individuals to reveal financial and other confidential information to their detriment. 

Below are some of the types of messages that are currently being used in targeting government agencies, not-for-profits, businesses and individuals in an effort to obtain an organization's confidential data or information or an employee's or an individual's personal information.

A pop-up or message seeking to confirm or update the organization's or an employee's banking or other financial information. 
  
An email or text seeking contributions to "Fight the Coronavirus."*

A message offering investment opportunities in organizations "Fighting Coronavirus." 

A message seeking information to assist the organization or individual to apply for or receive an economic stimulus check or similar funds. 

Calls, emails, or other communications claiming to be from the FDIC or another federal agency or a state or municipal government organization offering COVID-19 related grants or payments upon receipt of certain financial information. 

Robocalls offering funds to organizations and businesses affected by the pandemic and selling "referral programs." 

Fraudulent checks from entities posing as a vendor.


The above information was provided by Mr. Heinan Landa, CEO and Founder of Optimal Networks, an IT services firm. Mr. Landa offers to discuss online security and what your organization can do to protect itself against COVID-19 generated scams. You may contact Mr. Landa by telephone  [240-506-5702] or email [hlanda@optimalnetworks.com].



* NYPPL received the e-mail set out below on April 23, 2020:

NOMZING TRADING N.G.O FOUNDATION
Thu, Apr 23 2020 3:06 PM

From: cvd19.relieffunds@sa. . . . .

ATTENTION:

This is pleading with all well meaning organizations and kind individuals to please come and let's join South Africa Government fight CORONA VIRUS (COVID 19) Through (NOMZING TRADING NGO FOUNDATION ) to enable us support the less privilege amongst us, So they can be able to buy Hand sanitizers, Face-Mask, Food, and other Items during this Lock-down period. It doesn't matter the country you're from, we are all one. Let's fight this together to spread love and support to our people, we can't leave this heavy load of The Pandemic to our Government alone, it is also our duty to be there for people that are not able to benefit from Government, they need our support at a time like this, Please you can support us with financial donations through the following account details, no amount is too small.
[Instructions for processing contributions deleted.]

N.B. A Google search for "NOMZING TRADING NGO FOUNDATION" reported:

"No results found for "NOMZING TRADING NGO FOUNDATION".


A CPLR challenge to an administrative determination is subject to a four-month statute of limitations

Challenges to the Retirement Systems' calculation of a member's pension benefit, an administrative determination, may be challenged to CPLR Article 78 but such a challenge is subject to a four-month statute of limitations.

In this Article 78 action a member of the New York City Teachers' Retirement System objected to the exclusion of his 2011 summer pay from the calculation of his pension benefit.* The member did not initiate a judicial challenge to the Retirement System's decision, which decision became final and binding upon member in October 2011, when he received his benefits letter from the Retirement System. 

In 2017 the member received a response to the member's inquiry concerning his pension benefit stating the "there is nothing further than can be done." 

In dismissing the member's Article 78 decision the Appellate Division opined that the Retirement System's response to the member's letter in 2017 "did not extend the [Article 78] limitations period" for bringing a timely action.

As the Appellate Division held in Baloy v Kelly, 92 AD3d 521, a request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition.


* Essentially the retirement allowance payable to a retired member of a New York public retirement system consists of two part, a pension portion determined by the members "final average salary" and "years of service credit" and an annuity portion to which the member has made employee contributions.

The decision is posted on the Internet at:

April 23, 2020

Determining if a dispute between a public employer and a public employee organization is arbitrable


In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR article 75 permanently staying an arbitration. Supreme Court denied the petition and granted the Federation of Teachers' [Federation] motion to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board had violated a term and condition of the relevant collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment set out in the CBA.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the court finds that there is no such prohibition against the arbitration, it must then determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was whether the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:

April 22, 2020

New York State Governor Cuomo waives the statutory 15-day "waiting period" for a public employee's effective date of retirement

New York State Comptroller DiNapoli requested the Executive Order* in order to safeguard benefits for families who may lose a loved one to COVID-19 before their service retirement can be made official. The Executive Order applies to member of the New York State and Local Retirement System.

“Many government workers are on the front lines battling the coronavirus in their communities every day,” DiNapoli said. “God forbid something should happen to them before their retirement becomes effective. Waiving the waiting period after filing for service retirement benefits ensures their families will get the benefits that were intended for them. My thanks to Governor Cuomo for acting on my request and taking steps to protect our heroic state and local workers and their families in these tough times.”

Under the existing law, members of the New York State and Local Employees Retirement System (NYSLRS) must wait 15 days before their service retirement date is effective. This window exists to give the member time to change their mind about their retirement, since the decision is irrevocable. If members of the Employees Retirement System were to die before the period was over, however, their service retirement would not be effective and their beneficiary would lose the retirement benefits the member wanted to provide for them.

Executive Order 202.18 authorizes a retroactive waiver of the 15 day waiting period to March 7, 2020, the date that the state emergency was declared, for members who have died of a COVID-related illness. The EO will enable the many members who are eligible to retire and experience the sudden onset of COVID-19, to choose an effective date of retirement that is less than 15 days from the date of filing. Beneficiaries of Police and Fire members already have the ability to choose service retirement benefits if the member dies before retirement is effective.

NYSLRS recommends that members place an effective date of retirement on their application or if filing using Retirement Online. Alternatively, members using a paper application may indicate “ASAP” in the effective date field and their retirement will be effective on the day after the application is filed with NYSLRS.

DiNapoli wrote to Governor Cuomo last week to request the Executive Order, which rescinds the 15-day window for NYSLRS’ members applying for service retirement during the current state of emergency through May 16, 2020.

* Click on the text in color to link to the full text of the referenced item.


Workers' compensation benefit voided as a result of making a false statement or misrepresentation


Following establishing a claim for workers' compensation benefits by an employee [Claimant], which claim was subsequently amended twice to include other injuries, the self-insured employer [Employer] raised the issue of whether Claimant had violated Workers' Compensation Law §114-a by making a false statement or representation of a material fact for the purpose of obtaining workers' compensation benefits.

Following a hearing, a Workers' Compensation Law Administrative Law Judge [ALJ] found that Claimant violated §114-a and imposed a penalty of "a rescission of awards, as well as a disqualification of future awards." Claimant subsequently appealed a panel of the Workers' Compensation Board sustaining the ALJ's determination.

The Appellate Division upheld the Board's decision. Citing §114-a [1], the court explained that "A fact is considered material when it is significant or essential to the issue or matter at hand." Further, if supported by substantial evidence, the Appellate Division explained that the Board's determination that a person violated Workers' Compensation Law §114-a will not be disturbed.

In this instance the Board had found that Claimant violated §114-a by making a false statement of fact about her work activities and by failing to disclose critical information to an examining physician.*

Because substantial evidence supports the Board's determination that claimant violated Workers' Compensation Law §114-a, the Appellate Division held that "it will not be disturbed," and found Claimant's challenge to the imposed penalty to be without merit.

* The Appellate Division noted that its review of the record confirms the Board's finding that although Claimant testified that, since her classification with a permanent total disability, she had not worked in any capacity or run any businesses, in the subsequent disqualification hearing that Claimant stated that she had operated a photography business and took photographs for parties and family events.

The decision is posted on the Internet at:

April 21, 2020

Standards of evidence required to support termination of employment decisions vary

Among the issues addressed by the U.S. Circuit Court of Appeals, Second Circuit, in this action was the standard of evidence that must be met to support the termination of a public employee in a disciplinary action. 

A §75 Disciplinary Hearing Officer found that “substantial evidence” supported several of the charges filed against the employee [Complainant] and recommended that he be demoted to a lower grade position. The then Assistant City Manager adopted the Hearing Officer’s findings of fact but decided to terminate rather than demote the Complainant.

The Complainant then filed an Article 78 petition in New York State Supreme Court seeking reinstatement to his former position and back pay contending that New York statutory law and the Due Process Clause of the Fourteenth Amendment both require that for-cause termination decisions be based upon a preponderance of the evidence and not substantial evidence.

In civil trials the preponderance standard is met when the party with the burden of proof, in this situation the charging party, convinces the hearing officer that the evidence it presented has a greater than 50% chance that it is true.

In contrast, substantial evidence is “more than a mere scintilla" of evidence. As the U.S. Supreme Court explained in Richardson v. Perales, 402 U.S. 389, substantial evidence is  such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”*

Ultimately the Appellate Division rejected Complainant's challenge, concluding that “due process requires application of the preponderance of the evidence standard only when the penalty of dismissal is accompanied by some added stigma,” which the court found was not present in this case.**

After the Appellate Division issued its decision, the parties cross-moved for summary judgment on the due process claims. The federal district court granted summary judgment to the employer, concluding that Complainant was collaterally estopped from re-litigating his due process claims and that, in the alternative, he was afforded adequate process.

* For a comprehensive analysis see Standards of Appellate Review in the Federal Circuit: Substance and Semantics by Kevin Casey, Jade Camara and Nancy Wright, posted on the Internet at:  https://www.slideshare.net/umesh1989/standards-of-appellate-review-in-the-federal-circuit-substance-and-semantics-83pages.

** Marentette v. City of Canandaigua, 159 AD3d 1410.

The Circuit Court's decision is posted on the Internet at:

April 20, 2020

Audits of certain State agencies, municipalities and school districts released by the New York State Comptroller during the week ending April 18, 2020


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


EO 95, issued in March 2013, established an Open Data Website for the collection and public dissemination of publishable state data maintained by state entities. Auditors found OGS has taken steps to meet the requirements of EO 95; however, certain aspects of the order have not been fully addressed. There is limited assurance OGS has created a complete catalogue of the publishable data that it maintains or accompanying schedules for making that data public. OGS has not incorporated compliance with EO 95 into its core business functions. For instance, there are no processes to identify new high-value data sets to publish on Open Data and OGS has not consistently updated data already posted.

EO 95, issued in March 2013, established an Open Data Website for the collection and public dissemination of publishable state data maintained by covered state entities. Auditors found the department has generally complied with the requirements of EO 95 and continues to identify new data sets to add to Open Data. However, the department did not identify the total population of publishable data that it maintains so there is limited assurance it provided a complete catalogue or accompanying schedules for making the data public, as required. 

An audit issued in November 2018, found that HESC had taken steps to implement the structure necessary to administer the Science, Technology, Engineering, and Mathematics (STEM) Incentive Program. However, auditors identified several areas for improvement. In a follow-up, auditors found HESC made progress in correcting the problems identified in the initial audit report.

A report issued in August 2014 found that a significant number of Low-Income Housing Trust Fund Program projects were being delayed by at least six months due to, among other issues, questionable award decisions, lax monitoring or enforcement of expectations, and delays in key approvals. The initial audit also found that the program did not consistently adhere to its own policies regarding the project award process. In a follow-up, auditors found HCR officials made some progress in addressing the problems identified in the initial audit. 
Auditors determined that 101 credit card purchases totaling $22,100 did not have original receipts attached to the monthly statement. In July 2019, Richard A. Lobur, a fire department member, admitted to taking almost $40,000 in grant money to use for personal expenses, pay off credit card debt and make loan payments. He pleaded guilty to theft of government money and agreed to pay $39,182.92 in restitution. The matter was referred to the Erie County District Attorney’s Officer and resulted in the arrest of three other individuals. In December 2019, one individual pleaded guilty to petit larceny while the other two pleaded to a non-criminal disposition. All three were ordered to pay restitution.

The board-adopted procurement policy does not provide a clear method for procuring professional services. Auditors found the town procured professional services from 16 providers with payments totaling $870,909 without competitive methods. In addition, the town did not obtain the required number of quotes for 34 purchases totaling $59,426; a proposal for one purchase totaling $13,404 or competitively bid three purchases totaling $911,044.

The town clerk did not deposit or remit all tax collections to the supervisor and county treasurer in a timely manner. In addition, the town clerk did not reconcile her bank account or identify errors such as duplicate tax payments received from taxpayers. Auditors found that the town clerk did not report or remit fees in a timely manner for 2018 and 2019. Auditors also determined that the board approved inappropriate or unsupported credit card charges totaling $5,759.

Real property taxes totaling $1,443,876 and clerk fees totaling $2,604 were not remitted to the supervisor or treasurer in a timely manner. Auditors found 45 real property tax receipts totaling $690,961 were deposited from two to 60 days after receipt instead of within 24 hours. In addition, there were five instances totaling $2,089 where clerk fees were not deposited within three days of when collections accumulated to more than $250.


Cuba-Rushford Central School District – Financial Management (Allegany County and Cattaraugus County)
The district’s financial reserve plan states that the district will reduce surplus fund balance as recommended by Comptroller DiNapoli’s previous report and the board’s fund balance policy states that it will strive to ensure that surplus fund balance does not exceed 4 percent. Surplus fund balance continued to consistently exceed the 4 percent limit by an annual average of 9 percentage points, or approximately $2 million. The board and district officials consistently overestimated appropriations and appropriated fund balance for planned operating deficits that never occurred.
Monticello Central School District – Fund Balance Management (Sullivan County)
The Board overestimated appropriations from 2016-17 through 2018-19, helping result in $12.1 million in appropriated fund balance not being used to finance operations. In addition, the district’s recalculated surplus fund balance exceeded the statutory limit each of the last three fiscal years by 12.3 to 16.3 percentage points. As of June 30, 2019, the District overfunded one reserve by $820,000.
South Colonie Central School District – Allocation of Personnel Costs (Albany County)
District officials accurately allocated personnel costs between district and state grant activities Auditors found total personnel costs of $745,262, of which $358,384 was funded using general fund money, were adequately supported and properly allocated. Except for minor discrepancies, which auditors discussed with district officials, teacher center personnel costs of $434,790 were supported, properly allocated and accurately reported as teacher center costs.

###

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 170,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

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

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Please Note:

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.

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