November 30, 2023

Hearsay evidence can be the basis for an administrative determination

The Appellate Division unanimously affirmed, without costs, a ruling by Supreme Court which denied the Plaintiff's petition to annul a determination of the City of New York Reasonable Accommodation Appeals Panel [Citywide Panel] denying [1] Plaintiff's  request for a reasonable accommodation from the New York City Board of Education's [DOE] COVID-19 vaccine mandate, [2] Plaintiff's motion for limited discovery, and [3] dismissed the proceeding brought pursuant to CPLR Article 78.

The court said the Citywide Panel's finding — that the DOE demonstrated that granting petitioner an accommodation of masking, testing, and social distancing, or alternatively teaching remotely, when the DOE was returning to in-person instruction, would impose an undue hardship — was not arbitrary and capricious or made in violation of lawful procedure.

Opining that it "need not limit [its] review to the language in the Citywide Panel's decision, as the Panel noted that it had 'carefully reviewed (the DOE's) determination' as well as 'all of the documentation submitted to the agency,' and that it had based its decision on that review", the Appellate Division found "The DOE's Position Statement explained in detail why granting the accommodation would create an undue hardship for the DOE, in conformity with the factors listed in the New York City Human Rights Law (City HRL) including 'identifiable cost of the accommodation' due to, among other things, 'retaining or hiring employees or transferring employees ... in relation to the size and operating cost of the employer,' and '(t)he number of individuals who will need the particular accommodation'," citing the "Administrative Code of City of NY §8-107(3)(b).

Noting Matter of Gray v Adduci, 73 NY2d 741, and other decisions, the Appellate Division explained the fact that the Position Statement was unsigned and undated, or amounted to hearsay, was of no moment, as "(h)earsay evidence can be the basis for an administrative determination".

Citing the decision in Matter of Marsteller, 217 AD3d 543, the Appellate Division said "(t)he affirmation of Eric J. Eichenholtz, Chief Assistant Corporation Counsel for Employment Policy and Litigation, who served as a final reviewer for Citywide Panel determinations," was appropriately considered by Supreme Court, as "there was no administrative hearing" and the affirmation "explain(ed) the information that was before the agency," including it noting that the DOE Position Statement was submitted to the Citywide Panel and was relied upon for the final appeal determination.

In addition, the Appellate Division noted DOE employees were informed how to apply for religious accommodations and appeal denials and Plaintiff "availed h(er)self of this process, (DOE) explained why h(er) application did not qualify for an accommodation [and the] parties further engaged in the administrative appeals process," and DOE "submitted evidence" that it received over 3,300 religious accommodation requests that needed to be "resolve(d) under a constrained timeline during an evolving public health emergency".

As Plaintiff "[had] not established that, under these circumstances, the City HRL required a more robust or individualized dialogue than the process (s)he received", the Appellate Division opined that Supreme Court properly denied Plaintiff's motion seeking leave for limited discovery in this special proceeding, as she failed to show "ample need" or "unusual circumstances".

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


November 29, 2023

Court finds the "heart presumption" set out in the Retirement and Social Security Law was "successfully rebutted" by the Retirement System

Petitioner, a correction officer, suffered a heart attack in 2007 and was diagnosed with and treated for high blood pressure. Petitioner returned to work in 2008, voluntarily joining a unit tasked with returning parole absconders to the counties of their convictions. In February 2017, Petitioner, complaining of fatigue and edema, sought treatment from a cardiologist, who diagnosed petitioner with coronary artery disease, heart failure and high blood pressure. Approximately one month later, Petitioner sought further treatment after experiencing chest pains and shortness of breath while at work, and he did not thereafter return to work.

Petitioner applied for performance of duty disability retirement benefits in September 2017, contending he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although Petitioner was found to be permanently incapacitated, his application for benefits was denied upon the ground that his disability was not sustained as a result of the performance or discharge of his duties.

Following a hearing and redetermination, the Hearing Officer upheld the denial, finding that Petitioner's heart disease was not caused by his employment. The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law, and Petitioner commenced this CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, noting that the New York State and Local Employees' Retirement System concedes that Petitioner is permanently incapacitated from the performance of his duties as a correction officer as a result of his heart condition and, further, that the "heart presumption" embodied in Retirement and Social Security Law §507-b(c) applies. However, said the court, citing  Matter of Park v DiNapoli, 123 AD3d 1392; Matter of Walters v DiNapoli, 82 AD3d 1487; and Matter of Rivera v DiNapoli, 78 AD3d 1295, "the issue distills to whether the Retirement System successfully rebutted the heart presumption, which, in turn, required the Retirement System to demonstrate -- through expert medical proof -- that Petitioner's cardiac condition was caused by risk factors other than his employment".

The Retirement System's medical expert [Expert] reviewed Petitioner's job description, together with numerous medical records, test reports and office notes, and conducted a physical examination of Petitioner in January 2018. After examining Petitioner, Expert diagnosed Petitioner with "nonobstructive coronary artery disease, very mild congestive heart failure and diabetes (not well controlled)". According to Expert, diabetes is "a major risk factor" for, among other things, heart attack and coronary artery disease; Petitioner's "additional risk factors for coronary artery disease included hypertension, dyslipidemia, obesity and a sedentary lifestyle."

In the words of the Appellate Division, "Although Expert agreed that Petitioner was permanently incapacitated from the performance of his duties as a correction officer as a result of his cardiovascular disease, Expert was adamant that Petitioner's correctional officer duties were not the cause of such disease, stating that '(c)oronary artery disease is not occupation specific.' Rather, Expert opined, there are 'well-defined risk factors for coronary artery disease,' including the various risk factors previously attributed to Petitioner. With respect to work-related stress, Expert acknowledged that stress could be a contributing factor to, for example, Petitioner's high blood pressure, but he made clear that stress was neither a recognized risk factor for developing coronary artery disease nor a cause of coronary artery disease or hypertension in the first instance (see Matter of Walters v DiNapoli, 82 AD3d at 1488). Expert further opined that the identified risk factors could not be viewed in isolation, i.e., no one individual risk factor may be said to have caused [Petitioner's] coronary artery disease; rather, such disease was the 'collective' effect of the recognized risk factors identified in Expert's report.

The Appellate Division said Expert's testimony, in its view, was sufficient to exclude Petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted. Further, opined the court, "The testimony offered by Petitioner's treating cardiologist, which the Comptroller was free to reject ... does not warrant a contrary result, as such testimony -- at best -- establishes that stress "appears to" or may "possibl(y)" have some effect upon the development or progression of coronary artery disease. The decision then notes that Petitioner's remaining arguments on this point, to the extent not specifically addressed, had been examined and found to be "lacking in merit" by the Appellate Division.

* RSSL §507-b(c) provides as follows: c. Notwithstanding any provision of this chapter or of any general or special law to the contrary, any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.

Click HERE to access the Appellate Divisions decision posted on the Internet.


November 28, 2023

Absent action by the State Legislature, New York State's statewide policy in favor of collective bargaining in the public sector controls

The collective bargaining agreements [CBA] in place between the City of Rochester and the Rochester Police Locust Club, Inc. [Locust Club], the union representing police officers in the City since the 1980's, had governed the procedure for disciplining police officers. In 2019, the Council of the City of Rochester adopted, the Mayor of the City of Rochester signed, and voters approved via referendum, Local Law No. 2, which created the Police Accountability Board [PAB], a body of nine City residents whose powers included the exclusive authority to "investigate and make determinations respecting" any police officer accused of misconduct.*

The PAB's authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty. The City's police chief was free to impose additional punishment upon that officer, but was obliged at a minimum to implement the sanction determined by the PAB.

There is no dispute that the disciplinary procedures set forth in Local Law No. 2 deviated in significant respects from the agreed-upon procedures set forth in the CBA then in effect and that they were not agreed to by the Locust Club. The Locust Club and others commenced this combined CPLR Article 78 proceeding and declaratory judgment action to challenge Local Law No. 2 and, in particular, its transfer of police disciplinary authority to the PAB. 

Supreme Court ultimately granted the petition in part and held, among other things, that Local Law No. 2 was invalid to the extent that it transferred that authority to another entity. The City Council appealed the Supreme Court's ruling; Appellate Division affirmed the Supreme Court's decision. (196 AD3d 74 [4th Dept 2021]).

The Appellate Division held that the City was obliged to negotiate with the Locust Club on the issue of police discipline because in 1985 the City had repealed the provision of its charter vesting a local official in charge of the police force with unilateral authority over police discipline and that the City's effort to revive that authority in Local Law No. 2 necessarily failed under the Municipal Home Rule Law because it was inconsistent with a general law, "the Taylor Law's mandate of collective bargaining for police discipline" (196 AD3d at 84). The court granted the City Council's motion for leave to appeal and now affirm.**

Noting that this case was the latest of a series in which the Court of Appeals has addressed the issue of when police disciplinary procedures are subject to collective bargaining, the Court said:

1."In 1958, the Legislature enacted Civil Service Law §§75 and 76 to specify "the procedures for disciplining public employees, including police officers, . . . [and] provide for a hearing and an appeal" (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Public Empl. Relations Bd., 6 NY3d 563.

2. "[A]lthough Civil Service Law §§75 and 76 generally govern police disciplinary procedures, preexisting laws that expressly provide for control of police discipline were 'grandfathered' under Civil Service Law §76 (4), which provides that nothing in sections 75 and 76 'shall be construed to repeal or modify any general, special or local' laws or charters" (See Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 30 NY3d 109, 114 [2017], quoting Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 573).

3. "Thereafter, the Taylor Law was enacted in 1967 to enshrine 'the "strong and sweeping" public policy in favor of collective bargaining in this state' and require good faith bargaining between recognized employee organizations and public employers over the terms and conditions of employment (See Matter of City of Long Beach v New York State Pub. Empl. Relations Bd., 39 NY3d 17, 22 [2022], quoting Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 78 [2000]; see Civil Service Law § 200 et seq., as added by L 1967, ch 392; Matter of City of Schenectady, 30 NY3d at 114).

4. "Although the disciplinary procedures set forth in Civil Service Law §§ 75 and 76 predate the Taylor Law, [the Court of Appeals] previously 'held that the policy of the Taylor Law prevails, and collective bargaining is required [for disciplinary procedures], where no legislation specifically commits police discipline to the discretion of local officials' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571; see Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12 [3d Dept 1978], affd [for reasons stated in] 46 NY2d 1034 [1979]).

5. "[The Court of Appeals'] prior decisions have also addressed the situation where a law grandfathered under Civil Service Law §76(4) gives rise to a conflict 'between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law and a competing policy . . . favoring strong disciplinary authority for those in charge of police forces' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571 [internal quotation marks and citation omitted]; see Matter of City of Schenectady, 30 NY3d at 114; Matter of Town of Wallkill v Civil Service Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 19 NY3d 1066, 1069 [2012]). 

6. The Court of Appeals said it had "resolved that tension by holding that the specific goal of strong disciplinary authority for the leader of a police force prevails over the general one of supporting collective bargaining" and that, where "legislation specifically commit[ting] police discipline to the discretion of local officials . . . is in force, the policy favoring control over the police prevails, and collective bargaining over disciplinary matters is prohibited" (citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571-572; see Matter of City of Schenectady, 30 NY3d at 115; Matter of Town of Wallkill, 19 NY3d at 1069).

7. In the words of the Court of Appeals, "To put it simply, 'some [municipalities] have the right to bargain about police discipline, and some do not' (Matter of City of Schenectady, 30 NY3d at 118), and the difference depends upon whether there is applicable legislation 'specifically commit[ting] police discipline to the discretion of local officials . . . in force' (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571-575)."

Applying those principles in the instant matter, the Court of Appeals observed that the parties are in agreement that §330 of the 1907 City Charter constituted prior legislation committing police discipline to the discretion of the City official in charge of the police force which was grandfathered under Civil Service Law §76(4). The provision would have prohibited collective bargaining over police disciplinary procedures had it remained "in force" (See Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 572).

That said, the Court explained the "Municipal Home Rule Law expressly vests the City with the power to "revise and amend its charter by local laws that are not inconsistent with the constitution or general law" (Matter of St. Lawrence County v City of Ogdensburg, 40 NY3d 121, 126 [2023]; see Municipal Home Rule Law §10[1][ii][c] [1]), as well as the power to "adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law relating to its property, affairs or government" (Municipal Home Rule Law §10[1][i])."

It was further established that the City could exercise that power in a way that surrendered authority granted to it under the 1907 City Charter and, indeed, as the City itself pointed out, a referendum was required to approve Local Law No. 2 of 2019 precisely because that law "[a]bolishe[d], transfer[red] or curtail[ed]" the charter power of the Mayor to appoint and remove all members of boards (Municipal Home Rule Law §23[2][f]).

As to the City Council's suggestion that it did not intend for the 1985 law to require the City to collectively bargain police discipline but, even accepting that its intent is relevant in view of the plain text of the law itself, there is no evidence in the record to support that claim. In any event, by 1985 the case law was clearly established that police discipline was a proper subject of collective bargaining where the procedures of Civil Service Law §§ 75 and 76 applied, and the City Council certainly should have been aware of that fact (see Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771, 771-772 [2d Dept 1983], lv denied 60 NY2d 551 [1983]; Matter of Auburn Police Local 195, 62 AD2d at 17).

The High Court said "It follows that, upon the enactment of Local Law No. 2 of 1985, there was no longer a conflicting charter provision in force that 'specifically commit[ted] police discipline to the discretion of local officials'; therefore, 'the policy of the Taylor Law prevail[ed], and collective bargaining [was] require' on the issue of police discipline (Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc., 6 NY3d at 571)."

Further, the Court of Appeals opined, "The [State] Legislature may therefore act to articulate a public policy that would prevail over the "strong and sweeping" one favoring collective bargaining that it has already adopted in the Taylor Law (id. at 78 [internal quotation marks omitted]) and, if it does so, this Court will enforce that policy just as stringently as we have the one set forth in the Taylor Law. Absent such action by the [State] Legislature, however, the statewide policy in favor of collective bargaining must control."

A majority of the Court of Appeals affirmed the Appellate Division's decision, insofar as appealed from, with costs.

 * The PAB's authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty.

** Chief Judge Wilson dissented in an opinion in which Judges Rivera and Halligan concur. Judge Troutman took no part.

Click HERE to access the Court of Appeals' majority decision and Chief Judge Wilson's dissent.


November 27, 2023

Determining if a lump sum payment to a member of a New York State public retirement system is includable in calculating a member of the retirement system's final average salary

Petitioner was employed as a police officer for the Village pursuant to a series of collective bargaining agreements [CBA] and employment contracts negotiated by the Police Benevolent Association [PBA] from 1989 until his retirement on March 30, 2019, when he began to collect his pension.

In April 5, 2021, Petitioner received a final determination by New York State and Local Employees Retirement System advising him that three $25,000 lump sum payments (totaling $75,000) that he received on March 1 of each year from 2017 through 2019 were not includable in his final average salary for purposes of calculating his pension benefits.* 

This resulted in a recalculation of and reduction in Petitioner's pension benefits and a directive that the overpayments be recouped from his pension payments.

Following a hearing, a Hearing Officer agreed that the lump sum payments had been properly excluded from the calculation of Petitioner's final average salary. The Comptroller adopted the Hearing Officer's decision.

Petitioner then commenced this proceeding pursuant to CPLR Article 78 challenging the Comptroller's determination.

Citing Matter of Bohlen v DiNapoli, 34 NY3d 434, the Appellate Division explained the "Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld". Further, opined the Appellate Division, "where substantial evidence exists to support the [Comptroller's] determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion".

Petitioner bears the burden of establishing his entitlement to the inclusion of the lump sum payments in the calculation of his final average salary, said the Appellate Division, and this he failed to do. 

"Consistent with the provisions of the Retirement and Social Security Law, a member's retirement benefit is based upon his or her final average salary, i.e., 'the average salary earned by such ... member during any three consecutive years which provide the highest average salary' ".**

Noting that a court "need not defer to the Comptroller's interpretation of the statutory exclusion for lump sum 'credits for time not worked' [the court said it was] in agreement with the Comptroller's determination as applied to the facts of this matter."

*This Retirement System determination was based upon its finding that the lump sum payments made pursuant to an October 17, 2017 memorandum of agreement between the Village and the PBA was not for "time worked" and, as such, were not pensionable.

** Annual compensation is defined as "(t)he salary or wages annually earnable by a member" (see Retirement and Social Security Law §302(2)(a).

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


November 18, 2023

Selected links to items focusing on government operations posted on the Internet during the week ending November 17, 2023

AI-Powered Task Forces Tackle Online Child Exploitation AI is emerging as a critical tool to sort through record-breaking amounts of digital evidence in the fight against the online exploitation of children and teens. READ MORE


Axon Aims to Reduce Police Shooting Deaths Via New Database The company, known for Tasers and body cameras, says detailed analysis of officer-involved fatal shootings could lead to better training and non-lethal technology. The database goes into minute detail about fatalities. READ MORE


Bay Area Transportation Officials Weigh Freeway Tolling Plan The Metropolitan Transportation Commission in the Bay Area is holding public meetings for community feedback on a plan to add tolling to the region’s most-crowded freeways to generate new funding for transit and other projects. READ MORE


Breach Notification Delays Draw Criticism for Maine Agencies The breach that exposed the data of an estimated 1.3 million residents was discovered six months before notifications were sent out. Experts say the delay was necessary to investigate the incident. READ MORE


CivicPlus Will Sell Its Monsido Accessibility Platform Acquia, which helps businesses build digital tools, is buying the platform, which is meant to make online experiences better for people with disabilities. CivicPlus will still serve local clients interested in Monsido. READ MORE


Cyber Attack Downs Washington State’s Transportation Website A cybersecurity incident on Tuesday has made key parts, including real-time information, of the transportation department’s website inaccessible, causing major disruptions. While some services have been restored, maps and permits are still down. READ MORE


Cyber Insurance Roundup: What’s Happening Now? From the roller-coaster ride in rates to new generative AI uses to dramatic changes in underwriting rules, cyber insurance is evolving fast. Here are some of the latest trends. READ MORE


Disaster Zone Podcast: Gaming Cybersecurity Training A different approach to training teams on cybersecurity. READ MORE


Feds Issue Warning on Ransomware Group Targeting Public Sector The FBI and CISA, along with the MS-ISAC, issued a joint advisory explaining Rhysida ransomware actors’ known tactics, techniques and procedures and indicators of compromise — and ways to better defend. READ MORE


Five States Recognized for Evidence-Based Investments At a virtual event co-hosted by the National Governors Association and Results for America, the 2023 Invest in What Works State Standard of Excellence was released, highlighting best practices in state data use. READ MORE


Five Takeaways from the Fifth National Climate Assessment The massive, 2,000-page report is only issued every four to five years and outlines the major climate issues impacting regions and communities across the nation. Here are five main points of the assessment. READ MORE


Former Denver CIO David Edinger Tapped to Lead Colorado IT David Edinger, former CIO for the city and county of Denver, has been tapped to lead the Colorado Office of Information Technology; this comes after Denver named Suma Nallapati, former Colorado IT chief, as its CIO. READ MORE


Harris County, Texas, HHS Provider Hit With Ransomware Harris County officials are investigating the extent of a recent ransomware attack on the county's provider for mental health services. They noted that some employee files have become inaccessible because of encryption. READ MORE


Huber Heights, Ohio, Suffers Ransomware Attack on Systems A weekend morning ransomware attack on Huber Heights, Ohio, is affecting systems like finance, utilities and human resources. The city expects the disruption to last through the week. READ MORE


Iowa Cyber Hub Program Works to Reach the Community Members of the community are encouraged to join a new program about cybersecurity awareness, specifically those who may not be aware of their digital risks or what to do about them. READ MORE


Is AI better at predicting the weather than a supercomputer? READ MORE


MOVEit Hits Maine: More Than 1 Million People Affected The breach affected more than half of the data held by state’s Department of Health and Human Services, as well as data from other agencies. The incident affects 1.3 million people, in some cases exposing Social Security numbers. READ MORE


Nebraska CIO Talks Change Management, Consolidation and Cloud Nebraska CIO Ed Toner explained how the state’s ongoing cloud migration project is addressing agency change hesitancy, streamlining IT processes and securely centralizing data management. READ MORE


New Data Hub Helps Explain Diversity in the Latino Community Latinos accounted for more than half of U.S. population growth in the last two decades. Understanding of this community hasn’t kept pace, but a new resource from the Latino Policy and Politics Institute could help change that. READ MORE


North Carolina AccessDEQ Hub Streamlines Permitting Process The North Carolina Department of Environmental Quality recently integrated an online application feature into its comprehensive digital hub, consolidating records, data, mapping tools and permitting into one location. READ MORE


Pennsylvania Adds Cultural Resources to Digital Library The state of Pennsylvania has announced the addition of select resources to the electronic Power Library, providing constituents with tools to learn new languages, learn about their heritage and more. READ MORE


Police Tech Firm Utility Gains Majority Investment from GSV Greater Sum Ventures, whose history includes the gov tech company now called Catalis, aims to provide "end-to-end" tools for public safety professionals. The field is already crowded with Axon, Motorola and others. READ MORE


San Antonio to Spend $30.8M for Solar Panels at 42 Sites This spring the city will begin implementing solar panels on city-owned sites, either on rooftops, as parking canopies or as shade structures in parks in community centers. Currently just 10 city buildings have solar panels to generate electricity. READ MORE


States Begin to Address Media Literacy Through Legislation New Jersey becomes the latest state to sign a bill centering media literacy in schools, raising further awareness of the need for widespread media literacy policies. But more needs to be done, say experts. READ MORE


Texas School Choice Program Could Cost $2B Annually by 2028 The program also includes more funding for special education, teacher retention, per-student allotments and would revamp virtual education and public school accountability. But it would cost millions to implement. READ MORE


The Coming Fight Over Municipal Financial Data Rapidly developing AI-powered technology is making it easier to appropriate the public sector's financial information for proprietary uses. Businesses that slice and dice this data should be renters, not owners. READ MORE


The Flow of Feedback That Can Remake Public Procurement Massachusetts is showing the way by going to the end users of the products and services governments buy. It’s good for suppliers as well, and produces better results for everyone. READ MORE


Transit Needs to Diversify Funding to Face Fiscal Headwinds The fiscal challenges transit is facing are nothing new. To be financially resilient, transit agencies will need to rethink its funding options, and put more pressure on states to funnel federal cash. READ MORE


Water Utility Innovations Explored in NYC Environmental Tech Lab The Environmental Tech Lab in New York City selected eight companies to explore proofs of concept as part of its inaugural Operational Efficiency Challenge and Data Utilization Challenge. READ MORE


What Happened to Foot Traffic in Large U.S. Cities? Pedestrian activity declined in all of the top 100 metros in the United States between 2019 and 2022, driven in part by commuting and other mobility changes brought on by the COVID-19 pandemic. READ MORE


What’s New in Digital Equity: White House Launches National Spectrum Strategy Plus, support for continued ACP funding continues to grow; the FCC adopted final rules on digital discrimination; HUD has unveiled a streamlined enrollment process for the ACP; and more. READ MORE


What's the Future of Court Reporting? (Part 2) Electronic recordings and speech-to-text technologies must overcome more challenges before they can replace court reporters. Although, some critics say there's just no replacing humans in the role. READ MORE


Wisconsin’s Volunteer Cyber Team Explodes in Membership The volunteer group can assemble a response team seven minutes after a request for help — usually from a small city, county or school district. The number of participants has grown alongside the number of attacks. READ MORE


November 17, 2023

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On November 17, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

Schenectady City School District – Math Workbook Inventory (Schenectady County)

District officials did not maintain adequate inventory records and ordered excessive quantities of workbooks. As a result, officials ordered 4,126 workbooks that cost $143,036, which were not needed. Officials did not maintain a comprehensive perpetual inventory of workbooks, nor did they perform annual inventory counts at year-end. As a result, officials were not aware of the large quantities of workbooks stored at the elementary schools. The district lacked an adequate inventory policy or written procedures on how workbooks should be accounted for and how the inventory should be monitored. Officials did not determine the district’s actual workbook need before workbooks were ordered.


Corning City School District – Claims Auditing (Steuben County)

The district’s claims auditor did not properly audit and approve all claims prior to payment. Auditors reviewed 100 claims totaling approximately $19.5 million and determined that: the claims auditor, who is an employee of the Greater Southern Tier Board of Cooperative Educational Services (GST BOCES), inappropriately audited 43 claims totaling approximately $16.1 million paid to GST BOCES. This compromised the claims auditor’s objectivity and independence. The school board should have audited these claims. The treasurer paid 18 claims for health insurance reimbursements and credit card purchases totaling approximately $1.7 million before they were properly audited. Auditors found 49 travel-related credit card charges totaling $28,555 did not include a pre-approval form or other supporting documentation.


Rockland County – Budget Review

State law authorizes the county to issue debt up to $96 million to liquidate the accumulated deficit in the county’s general fund as of Dec. 31, 2012. Additionally, the law requires the county to submit its proposed budget to the State Comptroller . The county legislature, no later than five days prior to the adoption of the budget, must review all recommendations made by the State Comptroller’s office, and adjust its proposed budget, consistent with any recommendations made. Auditors found that the significant revenue and expenditure projections in the 2024 proposed budget are reasonable. The county’s proposed budget includes a tax levy of $141,791,700.


Brentwood Union Free School District – Information Technology (IT) (Suffolk County)

The board and district officials did not adequately monitor nonstudent network user accounts, provide IT security awareness training as required by a board-adopted policy or implement an IT contingency plan. As a result, the district’s computerized data was not adequately safeguarded. In addition, the district has an increased risk that the network may be accessed by unauthorized individuals, data will be lost, and the district may not be able to recover from a network disruption or disaster. Officials also did not disable 486 of the 3,525 enabled nonstudent network user accounts auditors reviewed and determined were not needed or establish written procedures for granting, changing and disabling network user account access.


North Tonawanda City School District – Information Technology (Niagara County)

District officials properly managed user account permissions in its financial application but did not properly secure user account access to the network or manage user account permissions in the student information application. As a result, there is a significant risk that network resources and student information could be inappropriately altered, accessed or used. In addition to sensitive IT control weaknesses that were communicated confidentially to officials, auditors found district officials did not disable 246 unnecessary network user accounts or properly manage permissions for 517 user accounts in the student information application by ensuring accounts were locked or disabled when an employee separated from the district.


City of Lockport – Budget Review (Niagara County)

Auditors found that the significant revenue and expenditure projections in the proposed budget appear reasonable. However, auditors identified certain revenue and expenditure projections and other matters that should be reviewed. Officials significantly underestimated the amount of overtime incurred by the fire department in 2023, which will exceed the amount budgeted by approximately $440,000. The proposed 2024 budget includes overtime funding of $500,000 for the fire department, an increase of $250,000. If officials cannot reduce 2023 overtime expenditures, the 2024 budget appropriation for overtime will be insufficient.


Fine Fire District – Board Oversight (St. Lawrence County)

District officials did not adequately monitor financial activities or maintain appropriate records and reports. As a result, more taxes were levied than needed to fund operations each year and there was an increased risk for errors and irregularities. The board did not ensure that basic accounting records were maintained, that it received written financial reports to manage operations, or that the district’s required annual update documents were filed. The board also did not conduct an annual audit of the secretary-treasurer’s accounting records or hold required public hearings on the proposed 2022 and 2023 budgets or formally adopt the budgets, as required by state law. In addition, annual appropriations were overestimated by an average of $43,300, or 40%.


Bellmore-Merrick Central High School District – Payroll (Nassau County)

Auditors determined district officials accurately paid salaries and wages to 58 employees totaling $609,317 of the $127.3 million paid to 1,290 employees during the audit period. There were no recommendations as a result of this audit.




Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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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