ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 30, 2021

Reviewing a determination of the State Comptroller denying petitioner's application for accidental disability retirement benefits

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.

In September 2015, petitioner — a police detective — filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to, among other things, his right hip and back that, in turn, were sustained while pursuing a fleeing suspect in October 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Petitioner acknowledged that, as a police officer, he had a duty to respond to an accident or a crime that he witnessed — even if he was "on [his] own personal time" — and the record reflects that, after the suspect fled the scene of the initial collision, petitioner immediately reported the event to his employer, sought assistance and gave chase. Petitioner acknowledged that "[p]ursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal quotation marks and citations omitted]), and he agreed that such pursuits could entail "chasing [suspects] across all different types of terrain, uneven ground, jumping fences" and the like (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893-894 [2011]; Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484 [2011]).

Additionally, the particular hazard encountered by petitioner, i.e., the elevation change lying beyond the third fence, "could have been reasonably anticipated" (Matter of Stancarone v DiNapoli, 161 AD3d 144, 148-150 [2018]; see Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [2015]), notwithstanding petitioner's testimony that vegetation partially obscured his view of the terrain.

Hence, even setting aside the inconsistencies between petitioner's testimony and the description of the incident as set forth in the relevant incident reports, which presented credibility issues for the Hearing Officer and respondent to resolve (see Matter of Verille v Gardner, 177 AD3d 1068, 1070 [2019]; Matter of Angelino v New York State Comptroller, 176 AD3d at 1379; see also Matter of Harris v New York State & Local Retirement Sys., 191 AD3d at 1086), substantial evidence supports respondent's finding that this incident was not an accident within the meaning of Retirement and Social Security Law § 363.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04409.htm

 

July 29, 2021

The Freedom of Information Law's application to evidence collected in a criminal action

To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866-867 [2d Dept 2015]). 

Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case. 

Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388 [2006]), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 NY2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]).

The full text of the decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04416.htm

 

July 27, 2021

Elements considered in a court review of the denial of certain records demanded pursuant to the Freedom of Information

The Agency [Custodian] of certain records demanded in a Freedom of Information Law [FOIL] request appealed a Supreme Court judgment that, among other things, directed the Custodian to disclose certain documents to petitioner [Plaintiff].

The Appellate Division "unanimously modified on the law" the Supreme Court's judgment with respect to certain pages identified by "Bates stamp"* and certain emails attached to certain pages of documents that were otherwise subject to disclosure. In addition, with respect to certain documents containing identifying information of private citizens, the court ordered such personal information to be redacted from the documents. The Appellate Division then affirmed "as modified" the Supreme Court's judgment without costs."

Citing Gould v New York CityPolice Dept., 89 NY2d 267, the Appellate Division noted that "All government records are ... presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)", typically referred to as FOIL.  However, observed the court, FOIL permits an agency to deny access to records or portions thereof that are "inter-agency or intra-agency materials" that are (i) not "statistical or factual tabulations or data"; (ii) not "instructions to staff that affect the public"; (iii) not "final agency policy or determinations"; or (iv) not "external audits, including but not limited to audits performed by the comptroller and the federal government."

Further, said the court, the agency bears the burden of establishing that a document is exempt from disclosure.

Following an in camera** review of the documents in issue, the Appellate Division concluded that the lower court erred in ordering the disclosure of certain documents that it identified by its "Bates number". However, contrary to the Custodian's contention, the Appellate Division opined that Supreme Court "properly ordered disclosure of the remaining documents and portions of documents submitted for [its] review on the ground that the Custodian failed to establish that Public Officers Law §87(2 (g) exempted them from disclosure."

* Bates Numbering, also known as Bates Stamping, is an indexing method used for legal, business and medical documents (PDFs in most cases).

** "In private" and typically taking place in the private chambers of a judge, with the press and public excluded.

Click HEREto access the Appellate Division's decision. 

 

July 26, 2021

Former police chief sentenced for "pension double-dipping"

In a press release issued on July 19, 2021, New York  State Comptroller Thomas P. DiNapoli announced that a former police chief was sentenced for "pension double-dipping." The former Village of Chatham Chief of Police Peter Volkmann is required to pay $92,829 in restitution and perform 200 hours of community service today for defrauding the New York State pension system by concealing his unlawful post-retirement public income and for stealing from the village through sham requests for reimbursement. 

The former police chief's fraud was discovered during a joint investigation by State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police.

“No one is above law, including Volkmann who, as the chief law enforcement officer of the village, not only defrauded the state retirement system but also stole from his community,” said DiNapoli. “I thank District Attorney Paul Czajka and the New York State Police for their partnership in helping us bring justice to this case.”

"Mr. Volkmann stole funds from the citizens he was sworn to protect and serve as police chief of the Village of Chatham," District Attorney Paul Czajka said. "In doing so, he undermined much of the good he did in helping and providing assistance to so many suffering from addiction. With his conviction before Judge Koweek, those funds were returned in full to the Village of Chatham and the New York State Retirement System. I thank and commend the New York State Police, Comptroller Thomas DiNapoli and their highly trained and proficient investigators for bringing this complex case to a successful resolution. With the assistance of the Comptroller and the State Police, we continue to investigate the Village’s finances, as well as that of another institution."

“Our investigation determined that the suspect in this case violated the public trust by circumventing retirement laws and stealing from village funds,” said State Police Superintendent Kevin P. Bruen. “We will continue to aggressively investigate any case that involves public corruption, and I want to commend our members and the Comptroller’s Office and Columbia County District Attorney’s Office for their partnership to ensure that justice was served.”

Columbia Court Judge Richard Koweek also sentenced Volkmann to two years of conditional discharge and ordered that 100 hours of the 200 in community service he was sentenced to be done by July 2022. As part of his plea deal, Volkmann paid a total amount of $92,829 in restitution before his sentencing.

Volkmann pleaded guilty in February to grand larceny in the fourth degree for circumventing New York state’s post-retirement income restrictions and cheating the New York State and Local Retirement System out of $74,222. Volkmann hid public-source income from 19 municipalities and school districts in excess of the statutory limit by funneling the earnings through a private business, PF Volkmann & Associates. He also pled to official misconduct, a misdemeanor, for stealing $18,607 from the Village of Chatham by falsifying mileage vouchers and other reimbursements to increase his income. 

The practice of using a public office or position of trust for one's own gain or advantage is referred to as Jobbery [see https://educalingo.com/en/dic-en/jobbery].

July 24, 2021

Audits and reports issued during the week ending July 23, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 23, 2021

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

 MUNICIPAL AUDITS

Copiague Fire District – Procurement (Suffolk County)

District officials did not always use a competitive process to procure goods, services or professional services or ensure no conflicts of interest existed. Auditors found no competition was sought for professional services. Officials paid the 12 providers $388,628. In addition, required verbal or written quotes were not always obtained when goods and services were procured. Auditors also found 23 purchases totaling $129,696 reviewed required competition. Only one purchase totaling $2,076 was competitively procured. A Commissioner, employed by a company the district contracts with, did not disclose his company’s interests or abstain or recuse himself from approving claims and warrants. The district has been contracting with the company for about 10 years.

 

City of Glen Cove Industrial Development Agency – Project Approval and Monitoring (Nassau County)

The board and officials did not properly approve and monitor projects or take action when goals were not met. Auditors found required annual financial disclosure statements that are meant to help identify conflicts of interest were not filed. Payments in lieu of taxes (PILOTs) billing and collections were not monitored or correctly allocated to affected taxing jurisdictions. In fact, 52 of 115 payments were late and late fees totaling $259,303 were not billed or collected. In addition, Nassau County received $375,914 more than it should have. These funds should have been paid to the City of Glen Cove, $75,039, and to the school district and library, $300,875. Tax exemptions disclosed in audited financial statements were overstated.

 

Village of South Floral Park – Budgeting and Financial Oversight (Nassau County)

The board did not provide appropriate oversight and management of budgets and fund balance or ensure annual audits were completed. More real property taxes were assessed than necessary to fund operations each year. The board also failed to hold budget hearings before April 15 each year (from two to 11 days late) to discuss the 2017-18, 2018-19 and 2019-20 budgets, and the budgets presented were not in the proper form, as required. Inaccurate budgeting led to underestimated revenues totaling $289,565 (19%) over these years. As of May 31, 2020, unassigned fund balance was $463,948, which is 78% of the 2020-21 appropriations. The Village has excess fund balance and the board did not adopt a fund balance policy.

 

Henrietta Fire District – Financial Condition (Monroe County)

The board did not effectively manage the district’s financial condition and presented budgets indicating the district needed to both increase real property taxes and use appropriated fund balance to close projected budget gaps. As a result, more real property taxes were levied than needed. The board also did not adopt realistic budgets from 2017 through 2021. As a result, fund balance increased to $4.4 million on December 31, 2020, which is excessive and enough to pay 41.5% of the District’s 2020 expenditures.

In addition, the board unnecessarily overrode the 2019 and 2020 tax cap. The 2021 tax cap override will likely be unnecessary because the 2021 budget overestimated appropriations by approximately $1.4 million, and the $1 million appropriated fund balance will likely not be used. The board did not adopt budgeting, fund balance or reserve policies or multiyear financial and capital plans.

 

Town of Otselic – Records and Reports and Conflict of Interest (Chenango County)

The Supervisor did not maintain complete, accurate and timely financial records and reports, and the board did not ensure there were no prohibited conflicts of interest. Auditors found the supervisor did not provide the board with accurate financial reports and did not record deposits totaling $127,000, cash withdrawals totaling $199,000 and fund transfers totaling $874 in the accounting records. She also recorded one deposit for $25,000 twice. Auditors also found, the required 2016 through 2019 annual financial reports were not filed with the Office of State Comptroller, as required. As of May 5, 2021, the reports were late and remained unfiled. In addition, a board member had a prohibited interest in the contracts between the town and his auto parts businesses. The board did not comply with General Municipal Law by adopting a code of ethics and did not audit the supervisor’s records, as required..

SCHOOL DISTRICT AUDITS

Mount Pleasant Central School District – Information Technology User Accounts (Westchester County)

District officials did not establish adequate controls over the district’s user accounts to prevent unauthorized use, access and/or loss. Officials did not monitor compliance with the district’s acceptable use policy. Officials also did not adequately manage network user accounts. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Williamson Central School District – Non-Payroll Disbursements (Wayne County)

The board did not ensure that non-payroll disbursements were appropriately procured, properly audited and approved, adequately supported and for valid district purposes. The claims auditor did not audit and approve claims before payment as required.

 

July 23, 2021

Attendance and Leave Memoranda

 The New York State Department of Civil Service has published the following Attendance and Leave Memoranda:

Advisory Memorandum 2021-05, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Contract Year 2021–2022; and 

Transmittal Memorandum No. 47, 2022 Calendar of Legal Holidays and Days of Religious Significance. 

The text of Advisory Memorandum 2021-05 is found at:
https://www.cs.ny.gov/attendance_leave/AdvMemo21-05.cfm

The text of Transmittal Memorandum No. 47 will be found at:
https://www.cs.ny.gov/attendance_leave/TM_47.cfm

If you wish to print Advisory Memorandum 2021-05 the Department offers  a version in PDF format at https://www.cs.ny.gov/attendance_leave/am21-05.pdf.

If you wish to print Transmittal Memorandum No. 47 the Department offers a version in pdf format at https://www.cs.ny.gov/attendance_leave/TM-47.pdf.

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm.

 

July 22, 2021

The Intra-Military Immunity Doctrine bars judicial interference in discretionary military personnel decisions

A United States District Court granted the government’s motion to dismiss and, in the alternative, for summary judgment, on the Plaintiff-Appellant's [Cadet] claims that separation procedures of the United States Military Academy at West Point fail to provide due process and that the separation proceedings violated West Point’s own regulations in a manner that substantially prejudiced him. Cadet appealed the district court's ruling. 

The Circuit Court of Appeals held that West Point’s cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders the Cadet’s regulatory claims nonjusticiable.

Accordingly, the Circuit Court affirmed the district court's judgment.

Click HEREto access the Circuit Court's ruling.

 

 

July 21, 2021

Diminishing retiree health insurance benefits

NYPPL has received a number of requests concerning a 2008 New York State Supreme Court decision that addressed the unilateral diminishing of retiree health insurance benefits by the retiree's former public employer.

The text of the decision, DiBattista v County of Westchester, is set out below:

 

DiBattista v County of Westchester

Decided on July 29, 2008
Supreme Court, Westchester County

Carmine DiBattista, ANTHYONY EGIZIACO, KATHERINE JONES, ANTHONY P. DEL BORGO, KENNETH A. FISCHER and VIOLA WANCHO on behalf of themselves and certain other RETIRED EMPLOYEES of the COUNTY OF WESTCHESTER formerly in the CSEA BARGAINING UNIT, Plaintiffs,

against


County of Westchester and ANDREW J. SPANO, as County Executive of the County of Westchester, Defendants.

Paul S. Bamberger, Esq.,
Nancy E. Hoffman, Esq.
Attorneys for Plaintiffs
CSEA, Inc.
Box 7125, Capitol Station
143 Washington Avenue
Albany, New York 12224

Matthew B. Kogan, Esq.
Ohrenstein & Brown, LLP
Attorneys for Defendants
1010 Franklin Avenue
Garden City, New York 11530

Joan B. Lefkowitz, J.

In this certified class action involving approximately 1,600 persons who retired from Westchester County during the period of 1993 to 2004, plaintiffs allege that defendants breached their contracts by diminishing their health insurance benefits causing plaintiffs additional medical and health insurance costs of $3,610,181 to date.

Between 1993 - 2001, two collective bargaining agreements were executed between CSEA and Westchester County which provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made. That agreement changed the health benefits of active employees and Westchester County decided that such changes also affected retired employees. It had been the policy of Westchester County to treat retirees the same as active employees whenever a new collective bargaining agreement occurred.

Counsel have stipulated to the facts in this action rather than a trial and have submitted various exhibits and memoranda of law for the Court to consider.

Until 1993, prior collective bargaining agreements insofar as health insurance benefits were concerned were effective for the duration of the contract or the term of the contract. The immediate past two collective bargaining agreements (effective January 1, 1993 through May 2004) omitted language as to duration and specifically included retirees.

Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining. Allied Chem. Wkrs. v. Pittsburgh Plate Glass Co., 404 US 157, 180 footnote 20 (1971). Indeed, "vested retirement rights may not be altered without the pensioner's consent". Ibid. Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits "it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations". International Union, UAW v. Yard-Man, Inc., 716 F2d 1476, 1482 (6th Cir. 1983), cert. den. 465 US 1007 (1984). Retiree benefits "carry with them an inference that they continue so long as the prerequisite status is maintained". Ibid. This inference trumps any general duration clause as to the life or termination of the agreement. Id. at 1482-83. Therefore, pursuant to settled principles of law involving interpretation of collective bargaining agreements, it is clear that plaintiffs' health insurance benefits in the prior collective bargaining agreements survived those agreements and may not be diminished without their consent. Hudock v. Village of Endicott, 28 AD3rd 923 (3rd Dep't 2006); Della Rocco v. Schenectady, 252 AD2d 82 (3rd Dep't 1998); Myers v. City of Schenectady, 244 AD2d 845 (3rd Dep't 1997).

Defendants' reliance on McDonald Police v. Geneva, 92 NY2d 326 (1998) is misplaced as the collective bargaining agreements there did not address the benefits in issue whereas the prior collective bargaining agreements at bar do.

Accordingly, judgment in favor of plaintiffs is granted. Submit Order on notice. [*2]

DATED: July 29, 2008

ENTERED: /S/

JOAN B. LEFKOWITZ, J.S.C. 

 

July 17, 2021

Audits and reports issued during the week ending July 16, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 16, 2021. 

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

MUNICIPAL AUDITS

City of Binghamton – Joint Sewage Treatment Facility Capital Project Planning and Monitoring (Broome County)City officials properly planned and monitored the project by establishing a sound process for overseeing project activities that included daily onsite inspections documenting the following: daily onsite personnel; leak testing results for treatment lines; concrete inspection and testing results, including core samples and composition and work progress through photographic evidence. In addition, city officials ensured construction change orders were made only when warranted and after a thorough review. They avoided $11.3 million in interest and financing costs over 30 years by obtaining a $15 million interest-free loan and securing grants to fund 27 percent of project costs. In addition, city officials withheld payments to contractors to recover some of the $3.1 million in additional costs that were due to project delays.

Incorporated Village of Garden City – Check Signing (Nassau County) The village’s check signing process does not comply with village policy and the village treasurer did not maintain control of her electronic signature. In addition, the treasurer allowed her signature to be affixed to checks without her being present. Alternate signatories did not sign in the absence of the treasurer and deputy treasurer.

Selkirk Fire District – Procurement of Professional Services (2021M-55) (Glens Falls Regional Office)District officials did not solicit competition for professional services. During the audit period, district officials paid 12 professional service providers $759,029 without soliciting competition. Officials also did not issue a request for proposals for audit services totaling $25,200, although required by policy. In addition, officials could not provide documentation that they used other methods to assess the accountability, reliability, responsibility, skill, education and training, judgment, integrity and moral worth of the professional service providers as required by the district’s procurement policy.

 

SCHOOL DISTRICT AUDITS

Watervliet City School District – Information Technology (Albany County) The board and district officials did not ensure the information technology (IT) assets and data were safeguarded. Officials did not establish written procedures for managing, limiting and monitoring user accounts. Auditors determined officials also did not disable 72 unneeded network accounts in a timely manner. Officials also did not monitor compliance with the acceptable computer use policy. As a result, 12 of 13 computers auditors tested accessed nonbusiness websites prohibited by the policy. Sensitive IT control weaknesses were communicated confidentially to officials.

Westhill Central School District – Information Technology (Onondaga County) District officials did not implement adequate information technology (IT) controls over the district office’s network to safeguard personal, private and sensitive information. District officials also did not monitor employee Internet use. Auditors found eight of 10 employees’ computers they reviewed were used for personal internet activity. District officials did not properly manage network user accounts. Auditors examined all 31 enabled network user accounts on the district office domain controller. Six unneeded network user accounts, seven shared user accounts and three user accounts were found with unneeded administrative permissions. In addition, district officials did not provide formalized IT security awareness training to staff. Sensitive IT control weaknesses were communicated confidentially to district officials.

 

 

July 16, 2021

Redistricting for the 2022 Elections

Redistricting for the 2022 Elections, an article addressing New York State's engaging "in a new and untried procedure in creating legislative and congressional districts following the 2020 census," was posted July 16, 2021 by Richard Rifkin, Legal Director of Albany Law School's Government Law Center. 

Click HERE to access Mr. Rifkin's article.

July 15, 2021

State University of New York adopts regulation providing for Gender Neutral Bathrooms

The State University of New York has adopted a regulation providing for Gender Neutral Bathrooms at State University of New York facilities effective July 14, 2021.

The regulations was adopted in an effort to conform with legislation requiring SUNY state-operated campuses to designate all single occupancy bathrooms as gender neutral.

The text of rule and any required statements and analyses may be obtained from: Lisa S. Campo, State University of New York, State University Plaza, Albany, NY 12246, (518) 320-1400, email: Lisa.Campo@SUNY.edu

 

July 12, 2021

Failure to exhaust administrative remedies fatal to Petitioner's challenge to a final administrative determination

This litigation concerns payments that a school district [Respondent] is required to make to a charter school [Petitioner] with respect to students with disabilities in accordance with §2856[1][b] of the Education Law and addresses the fallout of an audit by the New York State Comptroller's Office in which it was determined that Respondent had overpaid the Petitioner for certain expenses.

Respondent learned that it had overpaid Plaintiff for those expenses for a period of approximately 12 years, ending in 2018, it informed the Petitioner that it would recoup the overpayment by deducting the amount of the overpayment from the next four scheduled payments to Petitioner.

Petitioner initiated this CPLR Article 78 proceeding, seeking, among other relief, a court order prohibiting Respondent from making such deductions, alleging that such recoupment was arbitrary and capricious. 

Supreme Court granted Respondent's motion to dismiss the Article 78 action contending that Petitioner failed to exhaust its administrative remedies. Petitioner appealed Supreme Court's action, claiming that it was not required to exhaust its administrative remedies because the case presents a pure question of law which the Appellate Division may decide without regard to the alleged failure to exhaust its administrative remedy.

The Appellate Division rejected Petitioner's argument, explaining that Petitioner's "contention is not properly before us inasmuch as it [was] raised for the first time on appeal' and thus it has 'no discretionary authority' to review it in this CPLR Article 78 proceeding."

The court then opined that assuming, arguendo, that the general rule requiring exhaustion of administrative remedies does not apply where the issue raised involves a pure question of law, this case does not present a pure question of law, noting that the relevant Department of Education regulation states that, "[i]n the event of the failure of a school district to fulfill the financial obligation required by section § 2856 [1] [b] of the Education Law equal to the amounts calculated pursuant to this section, upon notification by the charter school, the commissioner shall certify the amounts of the unpaid obligations to the comptroller to be deducted from State aid due the school district and paid to the applicable charter schools."

Noting that the statute provides that "[a]mounts payable under this subdivision shall be determined by the Commissioner of Education" and, citing citing Matter of Davis v Mills, 98 NY2d 120, the Appellate Division further explained that "[i]t is for the Commissioner [of Education] in the first instance, and not for the courts, to establish and apply criteria" regarding the propriety and administration of recoupment of alleged funding overpayments.

Holding that Supreme Court properly granted Respondent's motion and dismissed the petition based on Petitioner's failure to exhaust its administrative remedies and, after considering Petitioner's remaining contentions and concluding that they did not require modification or reversal of the Supreme Court's judgment in chief, dismissed Petitioner's appeal.

The Appellate Division's decision is posted on the Internet HERE.

July 10, 2021

Audits and reports issued during the week ending July 10, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 10, 2021.

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

Municipal Audits

Town of Hempstead Local Development Corporation – Fund Balance (Nassau County) The board did not effectively manage fund balance. The board also did not develop or adopt a fund balance policy that addresses what level of fund balance is needed or how any surplus funds will be used and the timeframe for doing so. In addition, the unrestricted fund balance grew to $2.4 million as of Dec. 31, 2020. Allowing $2.4 million to accumulate and sit idle without a specific purpose to benefit the town is not in the public’s best interest. 

Laurens Fire District – Financial Activities (Otsego County) The board did not establish adequate controls over district financial activities to safeguard assets. In addition, the board did not segregate key duties or implement adequate mitigating controls. Auditors also determined the board did not contract for an independent audit of its 2019 records, as required by law, or provide for an annual audit of the treasurer’s records. As of June 30, 2020, the district’s 2017 through 2019 annual reports were between 122 and 852 days late. 

Town of Oneonta – Town Clerk (Otsego County) The clerk properly recorded all the fees auditors reviewed and remitted all fees collected during the audit period in a timely manner. However, the clerk did not always deposit fees within the required time frame. The clerk did not deposit $5,266 in fees collected within the required time frame. In addition, the clerk did not prepare accurate bank reconciliations. The clerk also did not prepare accountability analyses. As of Oct. 30, 2020, the clerk’s bank account held an unaccounted for and unremitted cash balance of $262. 

City of Yonkers – Budget Review (Westchester County) The 2021-22 budget relies on nonrecurring revenue of $55.2 million, such as fund balance, one-time state funding and the sale of property, to balance its budget. The city could face a shortfall of $1.8 million for parking violations bureau revenue and $1.3 million for parks revenue. The city plans to borrow up to $15 million for tax certiorari settlements in the 2021-22 fiscal year. In addition, firefighting overtime costs could potentially be over budget by as much as $2 million based on the 2020-21 fiscal year overtime costs. Over the last 10 years, the city’s outstanding debt has grown 9.4% and the city’s debt service payments have risen 13.2%. The city will need $80.6 million to service its debt obligations during 2021-22.

 

 

July 09, 2021

Government Technology's webcast focusing on "Cybersecurity defense to meet the challenges of today and tomorrow" scheduled

Join Government Technology and Tanium on July 13, 2021 at 10 a.m. Pacific Time [1 p.m. Eastern Time] to learn how to build a future-proof cybersecurity practice. The foundational elements of a sound strategy, how to evaluate risk, the latest principles and frameworks that can be used as a starting point, and the common obstacles agencies can expect to face will be addressed.

Speakers:
Chris Hallenbeck, CISO for the Americas, Tanium
Moderator: Deb Snyder, Senior Fellow, Center for Digital Government

 

Click here to Register now for this 30-minute session and "walk away with what you need to know to create or evolve your cybersecurity defense to meet the challenges of today and tomorrow!"

Brad Loebs, Registration Coordinator
Government Technology | A division of e.Republic
https://webinars.govtech.com/
800-940-6039 ext. 1409

bloebs@govtech.com

 

Mitigating circumstances set out in the record held insufficient to justify imposing a lesser penalty than termination under the circumstances

In a disciplinary proceeding brought by the Department of Education [DOE], New York City Office of Administrative Trials and Hearings ALJ Joycelyn McGeachy-Kuls recommended that an employee be terminated for failure:

1. To comply with her supervisor’s instructions;

2. Refusing to work cooperatively with co-workers; and

3. Excessive use of the Internet during business hours for non-work related matters.

It is well settled that the charging party "... bears the burden of proving the charged misconduct by a preponderance of the credible evidence.

Finding that DOE proved that the employee browsed the internet for non-work-related matters for over 33 hours over a period of less than a month, failed to clock out for lunch, made false time-card entries, and spoke to a co-worker in a rude and insulting manner.

Noting that DOE sought to impose the penalty of termination, the ALJ concluded that notwithstanding certain mitigating considerations set out in the record, termination was appropriate under the circumstances and so recommended.

Click HEREto access Judge McGeachy-Kuls' determination in this matter. 

 

July 08, 2021

Stress experienced in the performance of recognized duties of the position is not an accident for the purposes of qualifying for accidental disability retirement benefits

For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and the burden is on the party seeking accidental disability retirement benefits to demonstrate that his or her disability arose from an accident within the meaning of the Retirement and Social Security Law. Typically the Comptroller's determination is upheld if supported by substantial evidence.

In this instance a State Trooper's [Petitioner] duties involved working with informants in an effort to infiltrate drug cartels and curtail the supply of drugs coming into the United States that entailed "interacting with dangerous individuals" which duties were set out in the job description for his position. Returning from an overseas mission, Petitioner experienced a panic attack in his office. Subsequently hospitalized and referred to an intensive therapy program, Petitioner was diagnosed with post-traumatic stress disorder, manic depression and anxiety, and deemed unable to return to work.

Petitioner filed an application for accidental disability retirement benefits based on this diagnosis, which Petitioner claimed was a result of his work with the drug cartels. His application was rejected by the retirement system, which decision, following administrative appeal, was ultimately sustained by the State Comptroller. Petitioner asked the Appellate Division to review the rejection of his application for accidental disability retirement benefits.*

The Appellate Division held that Petitioner's mental injuries were a direct result of the stress that he was under while working undercover and interacting with informants and members of dangerous drug cartels -- "dangerous undercover work was part and parcel of his regular duties as a narcotics investigator and was specifically set forth in petitioner's job description."

Accordingly, opined the court, the stress that produced Petitioner's mental injuries "was an inherent part of his job and was not unexpected, substantial evidence supports the finding that his injuries were not the result of an accident."

In contrast, the Appellate Division noted that with respect to cases involving emergency workers who sustained mental injuries after responding to the World Trade Center bombing, there is no statutory presumption that applies to Petitioner's situation and decline to disturb the Comptroller's determination denying Petitioner's application for accidental disability retirement benefits.

* The New York State and Local Retirement System denied Plaintiff's application on the ground, among others, that the incident that allegedly occurred on an unspecified date was not an accident within the meaning of Retirement and Social Security Law §363.

Click HEREto access the Appellate Division's ruling.

July 07, 2021

Reasons why a party's motion to vacate an arbitration award could be denied

A City of Newburgh[City] police officer [Petitioner] was operating a police vehicle when that vehicle was struck in the rear by an underinsured vehicle. As a result, Petitioner sought to arbitrate a claim against the City for supplementary uninsured/underinsured motorist [SUM] benefits.

Ultimately an arbitration award was issued in favor of Petitioner, who sought to confirm the award. The City cross-moved to vacate the award, contending that the arbitrator exceeded her power in issuing an award in favor of Petitioner claiming that the police vehicle Petitioner was operating at the time of the accident was not covered by the SUM endorsement, and thus, there was no agreement to arbitrate. Supreme Court granted Plaintiff's motion to confirm the award, denied the City's cross motion to vacate the award, and the City appealed.

The Appellate Division ruled that Supreme Court had properly [1] granted Plaintiff's granted the motion to confirm the arbitration award, [2] correctly denied the City's cross motion to vacate the arbitration award, and [3] appropriately confirmed the arbitration award.

The court explained:

1. An arbitration award may be vacated, as relevant with respect to the City's motion in this action, where "a party's rights were impaired by an arbitrator who 'exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made'"; and

2. "[A]n arbitrator 'exceed[s] his [or her] power' under the meaning of [CPLR 7511(b)(1)(iii)]; or

3. "Where [the] 'award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'".

The Appellate Division rejected the City's contention that the arbitrator exceed her power, or violate public policy, by rendering an award based on the issues of whether Petitioner had suffered a serious injury under Insurance Law §5102(d) and the extent of his damages, which were the only issues placed before her by the parties.

Citing Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, the court opined that "Having fully participated in the arbitration proceeding, the City cannot seek to vacate the award on the basis that there was no coverage and no agreement to arbitrate."

The Appellate Division's ruling is posted on the Internet HERE.

 

July 06, 2021

Balancing a plaintiff's privacy interests against the presumption in favor of public disclosure of the names of the parties involved in a litigation

The defendant [Appellant] challenged Supreme Court's granting plaintiff's [John Doe] motion to proceed in this action using pseudonym "John Doe" rather then rather than reveal his identity. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

Citing  Anonymous v Lerner, 124 AD3d 487, the Appellate Division opined that after a "comprehensive balancing" of Doe's privacy interests against the presumption in favor of public disclosure and any prejudice to Appellant, Supreme Court "providently exercised its discretion in granting [John Doe's] motion to proceed anonymously."

Supreme Court's, said the court, had credited Doe's assertions that "he feared not only embarrassment and economic harm from the public disclosure of his identity but also social stigmatization, professional repercussions, and social isolation from his peers and colleagues in the legal profession", which concerns Appellant "had offered no reason to question."

Although Appellant argued that such disclosure would have no chilling effect since Doe  has already commenced suit, the Appellate Division observed that Appellant's argument "fails to account for the real possibility that [Doe] would be dissuaded from pursuing the action further and for the inhibiting effect it could have on other potential plaintiffs."

Concluding that Doe's proceeding anonymously would better serve the public's right to know than having the records sealed, the Appellate Division noted that:

1. Appellant had not explained why the public must know Doe's identity in addition to all other aspects of the case; and

2. Appellant has not shown that it will suffer any prejudice as Doe had agreed to divulge his identity to it and to the court.

The Appellate Division's decision is posted on the Internet HERE.

 

July 05, 2021

Government Technology Webinar update for the week of July 5, 2021

Boost Cyber Resilience and Reduce Organizational Risk: A New Approach to Application Security As government organizations quickly embraced hybrid and multi-cloud technologies at the onset of the pandemic, they also faced an unprecedented rise in malicious security threats, testing the limits of existing monitoring practices. Now that the initial stages of the emergency have passed, organizations need a better way to monitor increasingly complex applications, understand potential security impacts and strategically prioritize response. Click here to Watch Now 

Fight Fraud with Data: How States Can Confront Unemployment Insurance (UI) Abuse Unemployment claims skyrocketed over the past year, as millions of Americans lost their jobs during the pandemic. Sadly, as the number of claims rose, so did instances of unemployment insurance benefits fraud. These cases have resulted in billions of dollars lost. In California alone, officials reported more than $11 billion in improper payments in the first nine months of the pandemic. And these fraudulent claims aren’t just costly – they add complications and delays to already-overwhelmed state benefits systems that ultimately affect regular citizens who are out of work. Each state provides a critical lifeline for individuals and it's incredibly important that these systems perform well and detect fraudulent activity immediately. How can states fight fraud? With better access to data. More comprehensive information on identity and behavior will help stem the tide of fraudulent claims. Click here to Watch Now 

Migrating Government IT to the Cloud with Speed and Confidence State and local governments have always had to juggle a wide range of priorities, from supporting constituents and defending against cyber threats, to modernizing service delivery through digital initiatives. Government IT organizations are increasingly looking to the public cloud to realize their priorities while managing the expanding risk surface. The COVID-19 pandemic accelerated this transformation by increasing the demand for more self-serve and automated government services. But the already-stretched IT teams with limited resources and lower tolerance for risk have struggled to keep up with the increased demands. Click here to Watch Now 

Stop Fraud Before It Happens: Safeguarding Public Benefits Unemployment insurance (UI) fraud may have cost the nation nearly $40 billion last year, experts say, depriving out-of-work Americans of desperately needed help during the COVID-19 crisis. And while state unemployment programs were hardest hit, they weren’t the only targets. Emergency relief programs for rent and utility bills also came under attack. Join Government Technology on May 17 at 11am PT/2pm ET, for an important conversation on how state and local agencies can stop benefits fraud before it happens. You’ll learn how intelligent cloud-based technologies can detect and prevent efforts to create fake user accounts and takeover legitimate accounts – all without slowing down the delivery of critical payments to applicants in need of assistance. Click here to Watch Now 

To view more on-demand and upcoming webinars, visit webinars.govtech.com.

For assistance with registration, contact: Jeremy Smith, jsmith@erepublic.com (916) 932-1402.

 

July 03, 2021

New York State agency and department audits issued during the week ending July 2, 2021

New York State Comptroller Thomas P. DiNapoli announced the following local government audits were issued during the week ending July 2, 2021 

MUNICIPAL AUDITS 


Town of Albion – Financial Management (2021M-29) (Orleans County) The board generally developed realistic budgets. However, the budgets were not structurally balanced. The board used fund balance to finance operations. This resulted in the four main operating funds’ combined unrestricted fund balance to decline 65% from $1,165,418 as of Jan. 1, 2018 to $403,003 as of Dec. 31, 2020.If the board continues to use fund balance at the current levels, it could deplete fund balance in the general town-wide fund by the end of 2024. The board also did not adopt a written multiyear financial plan and written fund balance policy, which limits transparency.

 

City of Little Falls – Financial Condition (Herkimer County) The council and city officials did not adopt structurally balanced budgets, properly monitor the city’s financial operations or take appropriate actions to maintain the city’s fiscal stability. As a result, the city has significant fiscal stress. Auditors found the former treasurer over-reported fund balance from 2017 through 2019 by more than $200,000, and the council did not receive sufficient financial reports to monitor city finances. In addition, general fund balance declined by 52% to about $244,000 at the end of 2019, and officials had to rely on loans for cash flow. Errors in the 2020 accounting records also make it difficult for officials to accurately assess the city’s current financial condition. Auditors also found officials have not adopted a fund balance policy, multiyear financial plan or capital plan.

 

Town of Pulteney – Financial Condition (Steuben County)The board did not effectively manage the town’s financial condition and was unaware of the town’s true financial position when it adopted budgets because it did not receive accurate financial information from the town supervisor. Auditors found the board failed to implement Comptroller DiNapoli’s prior 2013 audit recommendation to appropriate fund balance only in amounts that are actually available, after retaining a reasonable amount for the next year. The board also appropriated more fund balance to finance operations than was available, resulting in the general and highway funds and water district beginning 2020 with budgetary deficits. The board did not adopt realistic budgets for each fund from 2017 through 2020. In addition, the board also did not adopt a multiyear financial plan, capital plan or fund balance, reserve or budgeting policies.

 

Town of Pulteney – Information Technology (Steuben County)  Town officials did not adequately safeguard town information technology (IT) assets and failed to implement the recommendations Comptroller DiNapoli made in 2013 to adopt comprehensive IT security policies and monitor computer use. As a result, auditors found officials did not adopt key IT policies or a comprehensive IT contingency plan to minimize the risk of data loss or suffering a serious interruption of services. Officials did not monitor the use of IT resources or provide IT security awareness training. Officials also did not disable four unneeded local user accounts. In addition, officials did not enter into a service level agreement with the town’s IT service providers. Sensitive IT control weaknesses were communicated confidentially to officials.

 

SCHOOL DISTRICT AUDITS

Phelps-Clifton Springs Central School District – Network Access (Ontario County and Wayne County) District officials did not ensure that their network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. As a result, auditors identified 139 unneeded user accounts, 36 unneeded generic or shared user accounts and five user accounts with unnecessary administrator permissions. Officials also did not maintain hardware or software inventory records. In addition, sensitive information technology control weaknesses were communicated confidentially to officials.

 

Tupper Lake Central School District – Records and Reports (Franklin County and St. Lawrence County)District officials did not maintain complete, accurate and timely accounting records and reports to allow officials to effectively manage financial operations and capital projects. Board oversight was lacking. Officials did not provide support for 12 of the 15 balance sheet accounts auditors reviewed. Also, officials did not record journal entries in a timely manner. Only four of the 349 journal entries for 2018-19 and only 60 of the 292 journal entries for 2019-20 were recorded during each year. Officials also did not properly account for and close completed capital projects. As a result, $359,427 in unexpended funds were not used to pay related debt, which could have reduced the district’s tax levies, and $480,853 in project expenditures were not submitted for timely reimbursement. In addition, officials did not submit the 2016-17 through 2019-20 annual financial reports, state aid claim forms and independent audit reports in a timely manner, delaying scheduled state aid payments ranging from $49,607 to $345,221.

 

CAUTION

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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