September 28, 2022

Scope of employment determines if a federal officer or employee is entitled to absolute immunity for alleged tortious conduct claimed to "job related"

When an officer or employee [Employee] of the federal government is sued for alleged tortious conduct, the Employee is generally entitled to absolute immunity from personal liability under the Federal Employees Liability Reform and Tort Compensation Act of 1988 [the “Westfall Act]. However,  to be eligible to come with the ambit of the Westfall Act the Employee must prove two things:

"(1) That the Employee is a qualifying government official for purposes of the Westfall Act; and

"2) That the tortious conduct in which the Employee was allegedly engaged was within the scope of the Employee's employment."

If these requirements are met, the United States is substituted for the Employee as the sole defendant in the tort suit and the action proceeds against the United States in accordance with the rules set forth in the Federal Tort Claims Act.** 

That said, the Second Circuit held that the instant action, E. Jean Carroll v. Donald J. Trump, required it to determine whether "the President of the United States is eligible for this form of absolute immunity." 

With respect to New York State as the employer, §17 of the Public Officers Law provides for the defense and indemnification of state officers and employees and volunteer expressly authorized to participate in a state-sponsored  volunteer program, a former employee, his estate or judicially  appointed personal representative and persons who assist the education  department or the department of health as consultants or expert  witnesses in the investigation or prosecution of alleged professional  misconduct, licensure matters, restoration proceedings, or criminal  prosecutions for unauthorized practice pursuant to Title eight of the Education Law or Title II-A of the Public Health Law.

Further, §18 of the Public Officers Law provides for the defense and indemnification of officers and employees of public  entities whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of §18 upon its employees, and (ii) to be held liable for the costs incurred under these provisions or where the governing body of a municipality, for whose benefit the public entity has been established, has agreed by the adoption of local law or resolution (i) to confer the benefits of §18 upon the employees of such public entity, and (ii) to be held liable for the costs incurred under these provisions.

§19 of the Public Offices Law provides for the reimbursement of defense costs incurred by or on behalf of a state employee*** in his or her defense of a criminal  proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of the employee's public employment or duties upon the employee's acquittal or upon the dismissal of the criminal charges against employee or reasonable attorneys' fees incurred in connection with the employee's appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of the employee's public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee. 

* See 28 U.S.C. §2679(b)(1). 

** See 28 U.S.C. §§2679(d)(1), 1346(b)(1). 

*** Although not all state employee are state public officers, all state public officers are state public employees. 

Click HERE to access the text of the Second Circuit United States Court of Appeals' ruling in this action.

 

September 27, 2022

An applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident

The New York City Employees' Retirement System [CERS] appealed a Supreme Court's ruling annulling CRER's decision to deny Plaintiff's application for duty disability retirement benefits and directed CERS to provide such benefits retroactive to February 24, 2015.

The Petitioner, a former correction officer with the New York City Department of Correction, had alleged that he sustained disabling injuries to his neck and back on December 29, 2013, during an altercation with an inmate. CERS denied Plaintiff's application after adopting the recommendation of the Medical Board of the New York City Employees' Retirement System [Medical Board] The Medical Board had determined that the Petitioner's disabling condition was not causally related to the December 29, 2013 incident.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, denied Plaintiff's petition and dismissed the proceeding.

The Appellate Division, Judge Dowling dissenting in part, explained that an applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident, citing see Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d 812, and as a general rule, the decision by CERS will not be disturbed unless its factual findings are not supported by substantial evidence* or its final determination and ruling is arbitrary and capricious".

The court opined that the conclusions of the Board, adopted by CERS were supported by "... credible evidence consisting of the Medical Board's independent interviews and examinations of the Petitioner, its review of the medical records and reports of the Petitioner's treating physicians, and the report of a radiologist consulted by the Medical Board, interpreting MRI studies of the cervical region of the Petitioner's spine." Further, said the Appellate Division, the resolution of conflicting medical evidence was within the province of the Medical Board.

Finding that there is no evidence supporting Petitioner's contention that the December 29, 2013 incident precipitated the development of a latent condition or aggravated a preexisting condition, the Appellate Division concluded that "Supreme Court should have denied the petition and dismissed the proceeding."

* Substantial evidence has been construed in disability cases, as requiring some credible evidence. Credible evidence has been described as evidence that proceeds from a credible source, which reasonably tends to support the proposition for which it is offered.

Click HERE to access the Appellate Division's decision posted on the Internet.

See, also, Matter of Young v DiNapoli, posted on the Internet HERE, addressing similar issues.

 

 

September 26, 2022

New York City public-sector union alleged to have suffered extensive financial mismanagement

Empire Center's Ken Girardin reports that "One of New York City’s largest public-sector unions has been effectively taken over by its national parent after an audit revealed extensive financial mismanagement."

Click HERE to access Mr. Girardin's report posted on the Internet.

September 24, 2022

Civics and Science: Contemporary Issues for Civil Democracy

Dr. Robert A. Michaels, NYPPL's Science Consultant, has published a new book focusing on contemporary issues of critical importance to American democracy. 

The book explores, in a strictly non-partisan manner, the nexus between civics and science, identifying contemporary issues of critical importance for American democracy.  It promotes objective, clear thinking toward evidence-based decision making in a range of important issue areas.  Dr. Michaels is a politically unaffiliated observer of politics.  His analysis is rigorous, and his writing engaging and personal.

Available in a Kindle Edition [$4.99] and in a paperback hard copy format [$19.99], for additional information about this work and to order your copy from Amazon, click.

 

Government Technology lists webinars now available to watch at your own pace

Managing Cyber Risks: Understanding New Risks and How to Prepare

The cyber risks that threaten America’s state and local governments are changing. Hackers are getting smarter and better organized. Ransomware and malware phishing attempts are growing ever-more sophisticated. Attacks on dams, pipelines and other pieces of critical infrastructure are on the rise. Meanwhile, the changing government environment itself makes it even harder to guard against cyber threats. Telework, remote collaboration, digital service delivery, smart city tech, connected Internet of Things devices - all make cybersecurity exponentially more difficult. In this webinar you'll hear from key government cybersecurity leaders discuss the new cyber risks for state and local agencies – and what you can do to prepare for them.

Click here to Watch now 

 

Bringing Digital Experience into the Network Operations Center

Increasing digital initiatives and cloud adoption fundamentally alter the job of network operations. NetOps teams must now support applications that are operated by third parties and require a different set of skills. Understanding user experience can be a moving target in such a highly decentralized and hybrid enterprise world. In this one-hour webinar you will discover how forward-thinking organizations are re-envisioning their monitoring strategies by evolving traditional NetOps into Experience-Driven NetOps, an innovative approach that routes digital experience metrics through standardized operational workflows to triage and resolve issues faster.

Click here to Watch now  

 

Creating Frictionless Government and Education Experiences Through Innovation

Government and education services should be easily accessible and simple to use for a wide variety of constituents. As the COVID-19 pandemic demonstrated, constituents can get frustrated and feel left behind when organizations have complex processes and tools, and not all users will be on the same level of the digital playing field. Thankfully, government and educational agencies have shown a willingness to transform their approaches to meet individuals where they are. Listen in to this discussion to hear how your organization can create frictionless and inclusive services through innovation.

Click here to Watch now

 

Enhancing Voice and Digital Engagement with Communications Platform as a Service Solutions

Public sector and education communities are expected to provide constituents and students the information and resources they need quickly. By leveraging artificial intelligence (AI) tools, organizations can enhance digital and voice communications through intelligence-enabled insights. In this 30-minute webinar you will learn how organizations can use AI-based solutions to deliver the right knowledge at the right time for optimal outcomes. 

Click here to Watch now 

 

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

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

September 20, 2022

National search for candidates for Deputy Commissioner, New York State Department of Environmental Conservation

The New York State Department of Environmental Conservation (DEC) has initiated a national search seeking candidates to replace Deputy Commissioner Jared Snyder. Deputy Commissioner Snyder is retiring in December 2022 after 15 years of service with the Department. 

The Deputy Commissioner is responsible for overseeing the development and execution of the State's programs to monitor, protect, and improve air quality through DEC's Division of Air Resources and the implementation of New York's efforts to reduce climate-altering emissions, ramp up renewable energy sources, and help communities adapt to climate change to achieve the goals of the State's ambitious Climate Leadership and Community Protection Act (CLCPA). 

The CLCPA commits New York State to 100% zero-emission electricity by 2040, and a reduction of at least 85% below 1990-level GHG emissions by 2050. 

Minimum qualifications include a Bachelor's degree and nine years of experience in a field related to environmental conservation, protection, or natural resources. At least four years of managerial experience, including responsibility for implementation of program goals and objectives within established budgets, and supervision or coordination of staff to achieve specific objectives. A Master's degree may be substituted for one year of non-managerial experience and a Ph.D. may be substituted for two years of non-managerial experience.

Click HERE for additional information concerning this opportunity.

 

Effort to remove a member of a school board barred by procedural errors

In this appeal to the Commissioner of Education seeking the removal of a member of a school board* the Commissioner addresses a number of procedural issues. 

The Commissioner's decision is set out below:

ROSA., Commissioner.-- Petitioner seeks the removal of Beatriz LeBron (“respondent”) as a member of the Board of Education of the City School District of the City of Rochester (“board”).  The application must be denied.

Pursuant to Part C of chapter 56 of the Laws of 2020, I appointed a monitor to provide oversight, guidance, and technical assistance related to the educational and fiscal policies, practices, programs, and decisions of the Rochester City School District.  The monitor, board, and the superintendent developed an academic improvement plan (“plan”), which was implemented during the 2021-2022 school year.  The plan included a requirement that “[t]he Board … incorporate racial and linguistic bias training into … the professional development plan for all Board [members].”  The board organized such a training, which respondent did not attend.  This application ensued.

Petitioner contends that respondent’s refusal to attend the racial bias training constitutes willful disobedience of “a decision, order, rule or regulation” of the Commissioner.[1]  Petitioner seeks respondent’s removal from office.

Respondent contends that, while she did not attend the racial bias training, she attended and conducted other trainings that provide sufficient instruction in racial bias.  Respondent also argues that some of petitioner’s claims are time-barred.

First, I must address two procedural issues.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  The Commissioner has held that a removal application is timely when commenced within 30 days of the petitioner’s good faith discovery of the challenged conduct, even if the actual conduct occurred more than 30 days prior (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  In her application, petitioner describes numerous actions by respondent that took place more than 30 days prior to the commencement of this appeal.  Petitioner has not offered good cause for her delay in raising such allegations.  Therefore, I have not considered petitioner’s untimely allegations.

Next, respondent requests permission to submit a late answer pursuant to section 275.13 of the Commissioner’s regulations.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR 276.3).  Similarly, a late answer may be considered in the discretion of the Commissioner if the respondent provides good reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed true (8 NYCRR 275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  Respondent’s claim of inadvertent error is not good cause for the delay (Appeal of Democracy Prep Endurance Charter School, 59 Ed Dept Rep, Decision No. 17,735; Appeal of Murphy, 57 id., Decision No. 17,234).  Therefore, I decline to accept respondent’s answer and accompanying affidavits.  However, I have considered respondent’s memorandum of law, which was timely submitted.

To the extent it is premised upon a violation of the plan, petitioner’s application must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

Respondent wrote to me on February 1, 2022, indicating that she would attend a different racial bias program in lieu of the training selected by the board.  In a response dated February 11, 2022, I advised respondent, among other things, that [t]he Monitor must determine whether [respondent’s] proposal satisfies the board’s approved plan in the first instance. If the Monitor determines that a provision of the plan has been violated, she may submit a notice of violation to the Commissioner.  Thereafter, the District will be afforded an opportunity to respond before the Commissioner determines whether any remedial action is necessary.

I have not received a notice of violation from the Monitor concerning this issue.  Such notice is a necessary predicate to the issuance of a “decision” or “order,” the violation of which could give rise to removal under Education Law §306.[2]  Thus, any claimed violation of the plan is premature.

Additionally, petitioner has not established that the February 11, 2022 response was a “decision” or “order” within the meaning of Education Law § 306.  In an appeal or removal application to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  The February 11, 2022 response did not obligate respondent to take any specific action; it merely “encourage[d] [respondent] to consider attending the board-sponsored training.”  As such, it cannot form the basis for removal (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952 [admonishment to board members not an order of the Commissioner]).

In light of this disposition, I need not address the parties’ remaining contentions.


[1] While petitioner also makes reference to “official misconduct,” this is the standard by which a board may seek to remove one of its own members (see Appeal of Rivers, 60 Ed Dept Rep, Decision No. 17,989). 

[2] Petitioner would also have to establish that petitioner’s actions were, as required by Education Law § 306, “committed with a wrongful purpose” (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240). 

* Application of WILLA POWELL for the removal of Beatriz LeBron as a member of the Board of Education of the City School District of the City of Rochester. Decision No. 18,194.

The Law Firm of Frank W. Miller, attorneys for Board of Education of the City School District of the City of Rochester, Frank W. Miller, Esq., of counsel.

Posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume62/d18194 

 

September 17, 2022

NYPPL's New York Public Personnel Law Handbooks are listed below

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HEREClick to Read a FREE excerpt (requires Adobe Reader).

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses 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. For more information click HERE. Click to Read a FREE excerpt (requires Adobe Reader). 

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. Click to Read a FREE excerpt (requires Adobe Reader).

The Layoff, Preferred List and Reinstatement Manual - This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions.  Click HERE for more information. Click to Read a FREE excerpt (requires Adobe Reader). 

 

Reminders:

HOW TO USE NYPPL'S RESEARCH TOOL 

Type in a word or phrase related to the subject in which are you are interested in the box in the upper left displaying the "magnifying glass" symbol and all NYPPL's  5,807 current postings containing that word or phrase will be displayed for your review. You may then "cut and paste" the text of the material in which you are interested contained in a case summary to your document or email. 

N.B.: §22 of 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.” Case summaries posted in NYPPL typically follow this protocol. 

 

September 16, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits issued on September 16, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State and New York City Departments and Agencies were issued during the week ending September 16, 2022.

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

Department of Corrections and Community Supervision: Oversight of Transportation Services and Expenses (2021-S-1)
The department has not established adequate controls to effectively monitor and ensure accountability over transportation expenses and performs limited to no central monitoring of payments made through the contractor responsible for serving vehicles. Further, the contractor data does not include sufficient detail needed for the department to adequately monitor vehicle repairs and maintenance costs. Also, the department does not monitor in-house maintenance expenses but, rather, relies on each facility or office for accurate reporting.

Department of Health - Medicaid Program: Claims Processing Activity (2021-S-7)
The audit identified over $36.1 million in improper Medicaid payments. By the end of the audit fieldwork, about $5.5 million of the improper payments had been recovered. Auditors also identified seven providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. By the end of the audit fieldwork, the department removed the providers from the Medicaid program.

Department of Health - Medicaid Program: Improper Managed Care Payments for Misclassified Patient Discharges (2021-S-8)
The audit identified 2,808 managed care inpatient claims totaling $32.3 million for Medicaid recipients who were reported as discharged from a hospital, but then admitted to a different hospital within the same day or the following day (which often meets the definition of a transfer). These claims are at a high risk of overpayment if the first hospital inappropriately reported an actual transfer as a discharge. The audit selected a judgmental sample of 166 claims totaling $2,474,162 from six hospitals and reviewed the associated patients’ medical records. Auditors found that 47 claims were overpaid because they were actually for transfers and not discharges and another 13 claims incorrectly billed as inpatient when they were for outpatient services.

New York City Department of Housing Preservation and Development: Heat and Hot Water Complaints (Follow-Up) (2022-F-3)
HPD officials have made some progress in correcting the problems identified in the initial report. Of the initial report’s eight recommendations, three were implemented, two were partially implemented, and three were not implemented.

Department of Health: Management of Indoor Air Quality for Individuals With Asthma (2020-S-59)
While the department, through its contracts with Local Health Departments (LHDs), has identified poor indoor environmental conditions that impact residents with asthma, it needs to improve its oversight and monitoring of LHDs to ensure that individuals identified with asthma in targeted areas continue to receive appropriate assistance.

New York State Liquor Authority: Internal Controls Over Selected Financial Operations (Follow-Up) (2022-F-12)
SLA has made progress addressing the problems identified in the initial audit report and has implemented the two recommendations from that report.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.


September 15, 2022

Seeking a court order in the nature of a Writ of Prohibition

In two actions initiated by Raymond A. Tierney, District Attorney, Suffolk County, [Petitioner] pursuant to CPLR Article 78 in the nature of prohibition Petitioner sought an order prohibiting Chris Anne Kelley, a New York State Supreme Court Justice, Suffolk County [Respondent] from enforcing [1] an order dated July 23, 2021, issued in an action entitled People v Portillo, then pending before Justice Kelley [Indictment No. 179/20] and [2] a second order dated July 23, 2021, issued in an action entitled People v Prince, also then pending in Justice Kelley's court [Indictment No. 1064/19].

The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."*

The Appellate Division dismissed both Article 78 actions "on the merits," without costs or disbursements.

Citing Matter of Holtzman v Goldman, 71 NY2d 564 and other cases, the Appellate Division explained that "[b]ecause of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers".

Further, said the court, "Petitioner has failed to demonstrate a clear legal right to the relief sought."

* Other such ancients writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the decision in People v Portillo posted on the Internet.

Click HERE to access the decision in People v Prince posted on the Internet.

 

 

September 10, 2022

New York State Comptroller Thomas P. DiNapoli announced the following school district audits were issued Friday, September 9, 2022.

The following school district audits were issued during the week ending Friday, September 9, 2022.

Click on the text in COLOR to access the full text of the audit on the Internet. 


Batavia City School District – Information Technology Equipment Inventory (Genesee County)

District officials did not appropriately track and inventory IT equipment. They did not adopt a comprehensive written policy for establishing and maintaining IT equipment inventory or maintain a complete and accurate IT equipment inventory or perform an annual physical inventory. Officials could not locate 229 staff computers and 62 tablets and paid approximately $17,000 in annual service fees in the 2021-22 fiscal year for missing devices.

 

East Bloomfield Central School District – Network and Financial Software Access Controls (Ontario County)

District officials did not ensure that network and financial software access controls were adequate to protect district IT systems and data from unauthorized access or loss. Sensitive network and financial software access control weaknesses were communicated confidentially to officials. In addition, the district had 250 unneeded network user accounts, including two with administrative permissions, and the assistant superintendent for business and operations had excessive administrative permissions in the financial software, which allowed them to potentially control all phases of financial transactions. Officials paid BOCES $539,644 for information technology services in 2020-21 without defining roles and responsibilities for services. As a result, the roles and responsibilities of each party may not be understood by all parties resulting in cybersecurity gaps.

 

Indian River Central School District – Financial Condition Management (Lewis County)

While the board and district officials made some progress in implementing prior audit recommendations, they must continue to improve their financial condition management, otherwise more taxes will be levied than are needed to fund operations. From 2017-18 through 2020-21, the board underestimated general fund revenues by $68.8 million and overestimated appropriations by $29.5 million. Additionally, the district’s reported surplus fund balance as of June 30, 2021 was 10%, exceeding the statutory limit of 4%. When unused appropriated fund balance is added back, the recalculated surplus fund balance totals $27.8 million, exceeding the statutory limit by $24 million

.

Milford Central School District – Fund Balance Management (Otsego County)

The board and district officials did not properly manage fund balance in accordance with statute. As of June 30, 2021, surplus fund balance exceeded the 4% statutory limit by approximately $600,000, or 5.4 percentage points. When the projected unused appropriated fund balance of $720,000 is added back, the recalculated surplus fund balance exceeded the statutory limit by $1.3 million, or 11.9 percentage points. The board and district officials did not develop and adopt a written multiyear financial plan or fund balance policy.

 

Minisink Valley Central School District – Medicaid Reimbursements (Orange County)

The district did not maximize Medicaid reimbursements by claiming for all eligible Medicaid services provided. Claims were not submitted for reimbursement for at least 3,083 eligible services totaling $187,932. Had these services been claimed, the district would have realized revenues totaling $93,966 (50% of the Medicaid reimbursements). Between July 1, 2020 and Dec. 31, 2021, the district paid a third-party vendor $54,996 to process the district’s Medicaid claims. However, officials did not provide the vendor with all of the documentation needed for the vendor to properly file all Medicaid claims and did not adequately oversee the vendor to ensure Medicaid reimbursements were maximized.

 

Tuxedo Union Free School District – Payroll and Leave Accruals (Orange County)

District officials did not ensure employees’ payroll payments and leave accruals were accurate, properly approved and supported. District officials overpaid (or potentially overpaid) 30 employees a total of $113,564 in payroll and leave accrual payments, including $47,673 in overpayments to the Interim Superintendent. Thirty-six of the 104 full-time and part-time employees were not covered under a collective bargaining agreement, employment contract or board resolution. As a result, payroll staff were unable to interpret what benefits employees are entitled to receive and may be improperly providing benefits to employees.

 

Union Springs Central School District – Safeguarding of Personal, Private and Sensitive Information on Mobile Computing Devices (Cayuga County)

District officials did not adequately safeguard mobile computing devices (MCDs) to help prevent unauthorized access to sensitive information. Auditors also found that district officials did not establish sufficient procedures, such as establishing a district-wide data classification matrix and inventorying sensitive information in their possession, to help ensure proper safeguarding. Fourteen of the 20 district-owned MCDs auditors examined contained information that was not adequately safeguarded.

 

Wappingers Central School District – Professional Services (Dutchess County)

District officials did not always seek competition or comply with the district’s procurement policy when procuring professional services. District officials did not use competitive methods, as required to select 40 professional service providers who were paid more than $5.1 million during the audit period.

 

Worcester Central School District – Fund Balance Management (Otsego County)

The board and district officials did not effectively manage fund balance. The board annually overestimated appropriations from 2016-17 through 2020-21 by an average of $943,000, or 8%.

District officials budgeted for operating deficits totaling $4.7 million from 2016-17 through 2020-21, but experienced net operating surpluses totaling $1.2 million, an operational shift of $5.9 million. The district’s surplus fund balance exceeded the 4% statutory limit in each of the last five fiscal years by $490,000 to $1.8 million, or 4.3 to 15.7 percentage points. Real property tax levies were higher than necessary, in part, because surplus fund balance in excess of the statutory limit was maintained.

 

Wynantskill Union Free School District – Purchasing (Rensselaer County)

District officials could not always support that competition was sought when purchasing goods and services that fell below the statutory bidding thresholds. Officials did not develop clear guidance in procedures to seek competition for purchasing goods and services that were not required to be competitively bid. They also did not follow the district’s purchasing policy for 25 purchases  totaling $53,883, or adequately document they sought competition for 17 purchases totaling $27,231. Further, contract award and pricing information was lacking on seven purchases made through state contract vendors, and the district should have paid $1,028 less for three purchases.

                                                                     ###

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.  


September 08, 2022

County commissioner in New Mexico removed from office under color of Section 3 of the 14th Amendment to the Constitution of the United States

Section 3 of the Fourteenth Amendment to the Constitution of the United State provides as follows:

§3. "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

New Mexico's Albuquerque Journal reporter Ryan Boetel notes that a state judge in New Mexico removed a county commissioner found guilty of participating in the January 6, 2022 invasion of the Capitol of the United States in federal district court under color of said §3.

With respect to public officers of New York State and its political subdivisions, the State Attorney General has opined that a public officer appointed for fixed statutory term may be removed prior to the expiration of the term only for cause and is entitled to due process protection prior to dismissal [Opinions of the Attorney General 88-49]. In the event an individual is "not entitled to a hearing under Civil Service Law, §75 or any other statute," the Attorney General further observed "a hearing must derive from the due process clause of the Constitution (NY Const, Art 1, §6; US Const, 14th Amendment)."

The Attorney General explained that "... courts have held that a public employee threatened with dismissal is entitled to due process protections if he has acquired a liberty or property interest in his employment; that is, a legitimate entitlement to continued employment," citing Economico v Village of Pelham, 50 NY2d 120, Elrod v Burns, 427 US 347, and Board of Regents v Roth, 408 US 564. 

Opinions of the Attorney General 88-49 also notes "The U.S. Supreme Court has stated that the sufficiency of a claim of entitlement must be made by reference to appropriate State or local laws", citing Bishop v Wood, 426 US 341. 

Click HERE to access the full text of Mr. Boetel's article published in the Albuquerque Journal posted on the Internet.

 

August 31, 2022

School District's motion to dismiss the causes of action alleging a student was sexually molested by an employee of the school district denied

In this action to recover damages, the complainant [Plaintiff] alleged that he was sexually molested by his guidance counselor, who was an employee or special employee of the defendant [School District].  Supreme Court denied School District's motion to dismiss the causes of action alleging "negligence, gross negligence, negligent hiring, retention, supervision, and direction, and breach of fiduciary duty insofar as asserted." 

The School District appealed the Supreme Court's ruling.

Explaining that on a motion to dismiss for failure to state a cause of action under CPLR §3211(a)(7) the Appellate Division said that a court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" and denied School District's appeal.*

The amended complaint alleged, among other things, that the School District had prior notice of the guidance counselor's propensity to sexually molest students and that the School District "nevertheless permitted the guidance counselor to meet one-on-one with students, including the Plaintiff, and that the School District thereby negligently failed to prevent the guidance counselor from sexually molesting the Plaintiff."

Further, said the Appellate Division, Supreme Court properly found that the Plaintiff sufficiently pleaded causes of action alleging negligence, gross negligence, and negligent hiring, retention, supervision, and direction, citing Moskowitz v Masliansky, 198 AD3d 637 and other decisions.

* The Appellate Division noted "[c]auses of action alleging negligent hiring, negligent retention, or negligent supervision are not statutorily required to be pleaded with specificity".

Click HERE to access the Appellate Division's decision.

August 30, 2022

Government Technology Webinars scheduled to be held during the week ending September 3, 2022

Wednesday, August 31 | 1:00pm Eastern

Enhancing Voice and Digital Engagement with Communications Platform as a Service Solutions 

The ability to reach and respond to constituents and students where they are, on whatever device they’re using, in real time is a differentiating factor that elevates the engagement experience for state and local government and education. Communications Platform as a Service (CPaaS) solutions help agencies build upon their existing applications to create access to all the popular communication methods the public wants to use. Join us for a 30-minute webinar on how organizations can use CPaaS solutions to integrate new communications tools into their workflow quickly and easily.

Click here to Register to attend 

 

Wednesday, August 31 | 2:00pm Eastern

Heightened Visibility is Key to Efficient Threat Detection and Risk Mitigation 

Local and state governments must constantly reevaluate their security strategies to ensure they’re up to the task of combatting today’s evolving threat landscape. Recent survey results demonstrate what agencies are most concerned about and what they are doing to mitigate risks. To unpack the results of the latest research, register to reserve your spot!

Click here to Register to attend 

 

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

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


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