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

On October 18, 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

 

Baldwin Union Free School District – Sexual Harassment Prevention (SHP) Training (Nassau County)

SHP training was not provided to all employees or any board members. Of the 120 total individuals tested (115 selected employees and all five board members), 17 employees and the five volunteer board members did not complete the annual training.

 

Burnt Hills – Ballston Lake Central School District – Employee Benefit Plan Forfeited Funds (Saratoga County)

District officials were not aware that the Health Flexible Spending Arrangement and Dependent Care Assistance Program administrator did not return forfeited funds totaling $25,701 to the district, as required. Because officials did not ensure the forfeited funds were returned, the funds were not available for the district’s use.

 

Eastern Suffolk Board of Cooperative Educational Services – Information Technology (IT) (Suffolk County)

Although BOCES officials restricted user account access to the financial application, they did not adequately manage user account access to the network. As a result, BOCES had an increased risk that the network could be accessed by unauthorized individuals. In addition to sensitive IT control weaknesses that were confidentially communicated to BOCES officials, auditors found that officials did not disable 681 network user accounts that were not needed or logged in to for at least six months.

 

South Kortright Central School District – Claims Audit (Delaware County)

Although the board and district officials generally ensured claims were adequately supported and properly audited prior to payment, certain purchases of goods and services auditors reviewed lacked necessary supporting documentation. In addition, the board did not comply with state law when it appointed the clerk of the board as the deputy claims auditor. The claims auditor and deputy claims auditor, as part of their claims audit process, did not verify that requests for proposals were solicited for seven professional service providers and an insurance provider that were paid a total of $205,042 during the audit period. Auditors found 18 claims totaling $20,834 were approved without documentation to verify compliance with the district’s procurement policy.

 

Village of Remsen – Clerk-Treasurer’s Records and Reports Audit Follow-Up (Oneida County)

The purpose of the review was to assess the village’s progress in implementing our recommendations in the audit report released in January 2021. Based on limited procedures, auditors found the village has not made progress implementing corrective action, as none of the nine audit recommendations were implemented. The board was unable to provide a reasonable explanation for taking no corrective action.

 

Uniondale Union Free School District – Information Technology (Nassau County)

District officials did not adequately manage nonstudent network user accounts and permissions. As a result, the district had an increased risk of unauthorized access to and use of the network and could potentially lose important data. In addition to sensitive IT control weaknesses that were confidentially communicated to officials, auditors found that the technology supervisor did not establish written procedures for granting, changing and disabling nonstudent network user account access or regularly review the accounts to ensure they are necessary. Additionally, they did not disable 3,471  of the enabled nonstudent network user accounts that were not needed.

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Former Town of Marion court clerk sentenced to jail, ordered to pay more than $59,000 in restitution

On October 18, ,2023, New York State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco, and Acting Superintendent of State Police Dominick L. Chiumento announced that the former court clerk for the Town of Marion, Eileen Steurrys, was sentenced to serve six months in jail and pay over $59,000 in restitution after her conviction for embezzling from the town court and altering records in an effort to hide her crimes. 

“Ms. Steurrys thought she could abuse her position to steal from the public and conceal her theft.  She now faces the consequences of her betrayal of the public’s trust,” DiNapoli said. “My thanks to District Attorney Calarco and the State Police for their continuing partnership in combating public corruption.”

Wayne County Assistant District Attorney John Ferlicca said, “Eileen Steurrys abused the trust that had been placed in her by the Marion Town Court. Today she answered to the People of the State of New York for her crimes of using her court clerk position for personal enrichment.”

“The sentencing of Ms. Steurrys should serve as a reminder that those who choose to abuse their public position will be brought to justice,” said Acting Superintendent Dominick L. Chiumento. “This former court clerk stole money from the court to support her own lifestyle. We will not tolerate this illegal behavior or abuse of power. I applaud the work of the State Police members assigned to this case, the State Comptroller’s Office, and the Wayne County District Attorney’s Office for their dedicated and hard work in exposing this fraud.”

Ms. Steurrys' thefts were initially discovered when DiNapoli’s office audited the Town of Marion Court Fund. DiNapoli’s office then partnered with Wayne County District Attorney Calarco’s office and the State Police to investigate her crimes, leading to her arrest and conviction. The joint investigation determined that, from 2016 to 2021, Ms. Steurrys pocketed $59,293 in court fees paid by the public instead of depositing the money in the court’s account and altered court records and created phony receipts in an effort to hide the crimes.

On August 16, 2023, she pled guilty to grand larceny in the second degree, corrupting the government in the second degree, tampering with records in the first degree and official misconduct. Steurrys was sentenced in Wayne County Court.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money can be made by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Probationary employee challenges termination from employment without a hearing

The petitioner [Educator] in this CPLR Article 78 action contended that her termination by the school district [District] without a hearing prior to the end of her probationary period was in violation of §3020-a of the Education Law.

Educator had been appointed as a permanent substitute teacher by the District for the 2015-2016 school year and in September 2016, commenced a four-year probationary period* as a bilingual elementary teacher within the District. Based on the recommendation of the District's superintendent, the District summarily terminated Educator's probationary employment effective August 2, 2020.

Educator challenged the District's action, contending that her substitute teaching experience during the 2015-2016 school year, combined with her probationary service for the 2016-2017 through 2019-2020 school years, satisfied her four-year probationary requirement, and thus she had acquired tenure in her position by estoppel prior to the District's terminating her employment in August 2020.

Supreme Court granted the District's motion to dismiss Educator's Article 78 proceeding. Educator appealed the Supreme Court's ruling.

The Appellate Division sustained Supreme Court decision, explaining:

1. "The Education Law distinguishes between probationary teachers and tenured teachers" and teachers in certain school districts must serve a probationary period of four years;

2. "The employment of a probationary teacher can be terminated at any time during the probationary period, without any reason** and without a hearing, whereas the employment of a tenured teacher can be terminated only after formal disciplinary proceedings;

3. "Tenure by estoppel results 'when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term'; and

4. "Service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher" although "a teacher's probationary term may be reduced through 'Jarema' credit for prior service as a 'regular substitute' teacher'. (See Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110)."

Here, opined the Appellate Division, Educator's petition "alleged [she] was employed as a permanent substitute during the 2015-2016 school year, and the evidentiary submissions conclusively established that the [Educator] taught, as a substitute teacher, several different classes over the 2015-2016 school year and that the longest period that she substituted for the same teacher was 26 days. Under these circumstances, the petition does not support a cause of action alleging tenure by estoppel because, contrary to the [Educator's] contention, her service as a substitute teacher did not constitute probationary service."

Further, said the court, evidence established that Educator "did not serve as a 'regular substitute' during the 2015-2016 school year and, therefore, she is not entitled to Jarema credit".

Accordingly, the Appellate Division held that Supreme Court properly granted the District's motion to dismiss the petition and dismissed the proceeding.

* See Education Law §3012(1)(a).

** N.B. Except as otherwise provided by law or the terms or conditions of a collective bargaining agreement, the employment of a probationary employee may be terminated without a hearing and without a statement of reasons after the completion of the probationer's minimum probationary period, if any, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible reason or an illegal purpose, or in violation of statutory or decisional law. See Matter of Yonkers Firefighters v City of Yonkers, 165 AD3d 816.

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

 

Establishing affirmative defenses to alleged pay-discrimination claims brought pursuant to Federal and New York State laws

In ANITA EISENHAUER v. CULINARY INSTITUTE OF AMERICA, [21-2919-cv], decided October 17, 2023, United States Circuit Court [Second Circuit] Judge JOSÉ A. CABRANES introduced the court's majority decision* as follows:

"This case presents the questions of what a defendant must prove to establish affirmative defenses to pay-discrimination claims under federal and state laws: the Equal Pay Act, 29 U.S.C. §206(d), and New York Labor Law §194(1). 

"Plaintiff Anita Eisenhauer alleges that defendant Culinary Institute of America violated these equal-pay laws by compensating her less than a male colleague. 

"The Culinary Institute responds that a 'factor other than sex' — its sex-neutral compensation plan, which incorporates a collective bargaining agreement — justifies the pay disparity. 

"Eisenhauer argues that the compensation plan cannot qualify as a 'factor other than sex' because it creates a pay disparity unconnected to differences between her job and her colleague’s job."

* CHIEF JUDGE DEBRA ANN LIVINGSTON concurred in the judgment in part and filed a separate opinion.

Click HERE to read more.

 

 

Determinations by certain other entities not binding on a retirement system's medical board if the medical board's decision is supported by substantial evidence

Supreme Court denied Plaintiff's petition to annul Medical Board's determination rejecting Petitioner's application for accidental disability retirement [ADR] benefits and dismissed the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

The Appellate Division opined "Petitioner has not shown that [the Medical Board's] determination to deny her application for ADR benefits was arbitrary and capricious or made in violation of lawful procedure", citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139.

The court explained the evidence submitted at the hearing included the Medical Board's physical examination of Petitioner and its exhaustive review of the conflicting medical evidence from examining physicians, as well as Petitioner's acknowledgment that she could, without assistance, "perform daily life activities such as bathing, dressing, and walking." The Appellate Division's decision also noted "the Medical Board concluded that [Petitioner] did not complain of pain in her back, neck, and extremities when she went to the emergency room immediately after the accident underlying her request for ADR benefits, and that her various orthopedic problems were part of a normal degenerative process in a middle-aged person."

The Appellate Division's opinion noted that the Medical Board's determination conflicted with the finding of the Social Security Administration that awarded Petitioner disability benefits and Petitioner acknowledged "the finding of the Social Security Administration is not binding on the Medical Board [see Matter of Fusco, 136 AD3d at 451]".

Similarly, public safety officers and firefighters who have been deemed as suffering an occupational injury or disease within the meaning of the Worker's Compensation Law are sometimes disappointed to find that decisions of the Workers' Compensation Board have no bearing on their eligibility for other benefits such as accidental retirement benefits or General Municipal Law §207-a or §207-c benefits. For example, in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals ruled that entitlement to benefits under the Workers' Compensation Law and General Municipal Law §207-c are discrete and entirely independent of one another. 

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

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Disability benefits for New York State and municipal employees

A 1098 page e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

The "Pell doctrine" applied in judicial review of the penalty imposed on a public employee found guilty of disciplinary charges

The determination of appointing authority [Employer] terminating Petitioner's employment based on the report and recommendation of an Administrative Law Judge following a disciplinary hearing was unanimously confirmed by the Appellate Division.

The court noted that "Substantial evidence supports [the Employer's] determination that Petitioner violated Department directives and procedures concerning the retrieval of inmate property, engaged in undue familiarity with an inmate, failed to submit a required unusual incident report, used excessive force against an inmate, and made false and misleading statements."

Under the circumstances, the Appellate Division opined that "The penalty of termination of petitioner's employment does not shock one's sense of fairness", citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, among other decisions.

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

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A Reasonable Disciplinary Penalty - for information and access to a free excerpt of the material presented in this 442 page NYPPL e-book, click HERE.

 

From the Blogs for the week ending October 13, 2023

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Are We Witnessing the Death of the Password?
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What Cyber Response Can Learn from Traditional Disasters
Government has battle-tested playbooks for dealing with hurricanes, tornadoes and wildfires. As cyber emergencies become both more common and more devastating, what can cyber responders learn from physical emergency response? READ MORE

 

Boulder Disaster Management Social Account Hacked, Disabled
The official Twitter/X account for the Boulder, Colo., Office of Disaster Management was deactivated to prevent “suspicious activity” after it was apparently hacked over the weekend. READ MORE

 

Climate Vulnerability Index Shows Weather Impacts Neighborhoods
The new map analyzes more than 70,000 tracts across the nation and illustrates what conditions shape a person’s level of vulnerability, including factors such as health, socioeconomic impact, environment, weather events, infrastructure and more. READ MORE

 

 

 

 

 

Judicial review of a determination denying a petitioner's application for performance of duty disability retirement benefits

Petitioner, a police officer, filed an application for performance of duty disability retirement benefits, alleging that he was permanently incapacitated therefrom due to injuries sustained to his neck and back after falling down a set of stairs. The application was denied, and Petitioner requested a hearing and redetermination. At the conclusion of the hearing that followed, during the course of which Petitioner, his treating physician and the physician who evaluated Petitioner at the request of the New York State and Local Retirement System [ERS] appeared and testified, the Hearing Officer upheld the denial, finding that Petitioner failed to demonstrate that he was permanently incapacitated from the performance of his duties. The State  Comptroller adopted the Hearing Officer's findings and conclusions, and Petitioner initiated a CPLR Article 78 proceeding to challenge the Comptroller's determination.

The Appellate Division affirmed the Comptroller's determination, explaining:

1. Petitioner, as the applicant, bore the burden of establishing that he was permanently incapacitated from the performance of his duties as a police officer "as the natural and proximate result of a disability . . . sustained in such service";

2. The State Comptroller "is vested with the exclusive authority to determine all applications for retirement benefits";

3. The Comptroller's determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed; and

4. Conflicting medical testimony presented a credibility issue for the Comptroller to resolve and the opinion rendered by Petitioner's treating physician was not entitled to greater weight over that of the physician who evaluated Petitioner at the request of the ERS and the Comptroller was free to credit ERS' expert's opinion over that of Petitioner's, despite the treating physician familiarity with the Petitioner.

Thus, the Appellate Division opined that the Comptroller's determination was supported by substantial evidence.

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

 

Paid Family Leave for employees of the State in Managerial or Confidential positions

This addition to 4 NYCRR 28-1.19 provides for a grant of up to twelve weeks of paid family leave for a "qualifying event" to eligible employees of the State as the employer serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law [the so-called Taylor Law].

The text of rule and any statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Elements considered by courts in actions seeking to vacate an arbitration award

In a proceeding pursuant to CPLR Article 75 to vacate an arbitration award, the Petitioner appealed from a judgment of the Supreme Court denying his petition and dismissing the proceeding. The Appellate Division affirmed the Supreme Court's judgment, with costs.

Noting that judicial review of an arbitration award "is extremely limited", the Appellate Division, citing Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146, explained that under CPLR 7511, "an [arbitration] award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect".

"An arbitrator 'exceed[s] [his or her] power within the meaning of the CPLR only when [he or she] issue[s] an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'", citing American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64.

Further, a party seeking to overturn an arbitration award "bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence" (See Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 185 AD3d 811).

The Appellate Division opined that in this action Petitioner "failed to show, by clear and convincing evidence, a basis for vacating the arbitration award pursuant to CPLR 7511."

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

 

An invitation to join the New York State Comptroller's team

The New York State Comptroller's office employs over 2,700 public servants statewide who are dedicated to ensuring taxpayer dollars are used effectively and for public good. The team consists of auditors, financial, business and policy analysts; information technology specialists, contract managers, investigators, and more.

New York State Comptroller Thomas P. DiNapoli invites interested individuals to learn more about his office which includes:

• Managing the New York State Pension Fund, one of the best-funded and best-managed public pension plans in the nation.
• Administering the New York State and Local Retirement System for more than one million members, retirees and beneficiaries and employers.
• Protecting taxpayer funds by uncovering waste, fraud and abuse at all levels of government.
• Fighting public corruption and pension fraud.
• Returning millions in unclaimed funds to rightful owners.
• Providing independent fiscal oversight on State, New York City and local finances.
• Providing technical assistance and training to local government officials and school districts.
• Reviewing State contracts and auditing payments, maintaining the State's accounting system and administering the State payroll.
• An much, much more.
  

To get started:

Click HERE for more information about employment opportunities or guidance on the civil service process.

View all open positions with the Comptroller's office in Albany and across the State.

Find Civil Service exam information, including continuous recruitment exams, those open to the public and promotional exams for State employees.

Meet with representatives at a career fair in your area. View calendar of events.

Follow the New York State Comptroller's office on LinkedIn to learn more about its work, culture and latest opportunities.

Appeal to the Commissioner of Education pursuant to §306 of the Education Law dismissed as untimely, for lack of proper service and for lack of jurisdiction

The Petitioner in this action asked the Commissioner of Education to remove the President of the school district's Board of Education pursuant to §306 of the Education Law, alleging the President defamed him at a board meeting and that the President’s comments "have had a negative personal and professional impact on him."

In rebuttal, the school district contended that Petitioner's application was untimely, must be dismissed for improper service, and the Petitioner's allegations of defamation and slander are outside the jurisdiction of the Commissioner.*

The Commissioner held that the Petitioner's application must be denied as untimely, noting "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". The Commissioner rejected Petitioner's argument that such lateness should be excused "due to his lack of knowledge concerning the appeal process." In the words of the Commissioner this was "not a sufficient basis to excuse a delay in commencing an appeal or removal application", citing a number of Decisions of the Commissioner of Education including Application of S.D., 60 Ed Dept Rep, Decision No. 18,009.

The Commissioner also noted Petitioner's application must also be denied for lack of personal service as §275.8(a) of the Commissioner’s Regulations requires that a petition be personally served upon each named respondent. In this instance Petitioner's affidavit of service indicates that service was made upon the district clerk.  Petitioner, however, was required to serve the President, the individual whose removal he sought, personally.

Addressing the President's request for a certificate of good faith pursuant to Education Law §3811(1) the Commissioner explained that "[such] certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent's powers or the performance of the respondent's duties as a board member or other official listed in section 3811(1)". As Petitioner's appeal was dismissed on procedural grounds without any findings on the merits, the Commissioner certified that the President was entitled to the requested certification [see Appeal and Application of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223].

* The Commissioner noted that she "lacked jurisdiction to adjudicate Petitioner’s claims of defamation or slander", citing Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051 and Appeal of Murray, 56 id., Decision No. 17,002.

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