Municipal and school audits issued

On July 19, 2024, New York State Comptroller Thomas P. DiNapoli announced the publication of the local government and school audits listed below.

Click on the text in color to access the complete text of the audit for the jurisdiction.

 

Town of Stafford – Capital Projects (Genesee County)

The board did not properly authorize and monitor capital project activity. Because the board relied on an engineering firm and a financial advisor to manage capital projects, it was not aware of project overruns, cash flow issues or financing source shortfalls. Moreover, a portion of the costs to construct water districts was unfairly paid for by taxpayers not living in or receiving benefit from these water districts. The board and supervisor also did not maintain adequate capital project accounting records or include eligible expenditures totaling $3,496 in the grant reimbursement applications. As a result, the town received less funding than it was entitled to.

Town of Lancaster – Town Supervisor’s Financial Duties (Erie County)

The former supervisor did not perform his financial duties and did not monitor the work performed by the firm he improperly contracted with to act as director of finance, resulting in incomplete and inaccurate financial records and significant control weaknesses. Monthly financial reports were not generated and provided to the board and bank reconciliations were not completed promptly. Auditors found 86 budget lines were overspent by nearly $9.2 million and 21 budget transfers totaling $483,122 were completed without board approval. They also found 76% of journal entries were made 70 days after the transaction took place and 60% of journal entries were approved by the firm without the supervisor’s review. The supervisor also compromised the security of the town’s resources by granting unrestricted access to the financial system and online banking to the firm, a third party. He did not ensure proper segregation of duties or put other controls in place, which allowed the firm to disburse $2.5 million of the town’s cash without any town official’s approval. The supervisor and other board members were unaware of these deficiencies and continued to pay the firm even though the contract terms were not fulfilled.

Franklin-Essex-Hamilton Board of Cooperative Educational Services – Capital Project State Aid

BOCES officials did not properly claim state aid for a capital project. As a result, as of Jan. 31, 2024, five component school districts had not received $652,054 in state aid they were entitled to for the project, and two districts received $916,278 in aid before being entitled to it. In addition, if officials do not claim approximately $1.5 million in eligible project expenditures, seven districts will not benefit from approximately $835,000 in state aid to they should receive.

Rensselaer City School District – Medicaid Reimbursements (Rensselaer County)

District officials did not submit claims for all Medicaid-eligible services provided to students and did not correct and resubmit rejected claims. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. As a result, claims were either not submitted or reimbursed for just over 1,260 eligible services totaling $46,338. Had the district claimed all eligible services, it would have realized revenues totaling $23,169.

Town of Franklinville – Procurement (Cattaraugus County)

Town officials did not always comply with the requirements of the town’s procurement policy because the board members, highway superintendent and former town supervisor, who served as the town’s chief financial officer, were not familiar with the town’s procurement policy and its requirements. Further, they did not research publications or attend free training that was available to assist them in their procurement responsibilities. As a result, $827,000, or 41%, of the $2 million in procurements reviewed were made without competitive procurement methods.

City of Yonkers – Budget Review (Westchester County)

The city’s adopted budget for fiscal year 2024-25 and supporting documents are in compliance with the requirements of state law. The city’s 2024-25 budget totals $1.51 billion, which includes operating and debt service funding of $794.2 million for Yonkers Public Schools and $719 million for the city. The 2024-25 budget is $81.2 million more than the city’s budget for 2023-24, an increase of 5.7%. The budget relies on nonrecurring revenue of $133.5 million, such as appropriated fund balance, one-time state and federal funding and sale of property, to balance its budget. The city could face a total shortfall of approximately $2.6 million if revenue estimates are not realized. The city plans to borrow up to $15 million for tax certiorari settlements in the 2024-25 fiscal year. Overtime costs could potentially be underestimated for police by as much as $2 million and for firefighting by as much as $131,000. Employee retirement costs are likely underestimated by as much as $945,000. Life, health and dental insurance costs could potentially be underestimated by as much as $195,000. Social security costs could potentially be underestimated by as much as $194,000.

Village of Elmira Heights – Claims Auditing (Chemung County)

Although state law requires a village board to audit all claims against a village before payment is made, the board did not perform a thorough and deliberate audit of individual claims, increasing the risk that improper payments could be made. Although the 213 claims reviewed totaling $771,282 were for proper village purposes, auditors determined that 34 claims totaling $143,560 were improperly paid before board approval and 11 claims totaling $34,987 lacked evidence that verbal or written quotes were obtained as required by the village’s procurement policy.

###

56 page United States Second Circuit Court of Appeals decision focuses on New York State's public accommodations laws which guarantee equal access to goods and services for members of protected classes

Below is the court's introduction to its decision in:

EMILEE CARPENTER, LLC, DBA EMILEE CARPENTER PHOTOGRAPHY, EMILEE CARPENTER, 

Plaintiffs-Appellants, 

v. 

LETITIA JAMES, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF NEW YORK, 

MARIA L. IMPERIAL, IN HER OFFICIAL CAPACITY AS THE ACTING COMMISSIONER OF THE NEW YORK STATE DIVISION OF HUMAN RIGHTS,

 WEEDON WETMORE, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF CHEMUNG COUNTY, 

Defendants-Appellees.* 

 August Term 2022 

Argued: September 28, 2022 Decided: July 12, 2024 

No. 22-75 

"Plaintiff Emilee Carpenter is a wedding photographer who offers her services to the general public. Her complaint alleges that she wishes to create photography that reflects her religious and personal beliefs about marriage, including by declining to offer her services for same-sex weddings. She brought this preenforcement action alleging that New York’s public accommodations laws prohibiting discrimination on the basis of sexual orientation violate the First and Fourteenth Amendments. 

"Carpenter sought declaratory and injunctive relief, and requested a preliminary injunction against enforcement of the laws.

"The United States District Court for the Western District of New York (Geraci, J.) dismissed all of her claims. 

"Following the Supreme Court’s decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023), State and County Defendants concede and we agree that Carpenter has met her burden at the pleading stage to state a plausible free speech claim. However, we reject Carpenter’s request to enter a preliminary injunction at this stage.

"We also affirm the district court’s dismissal of Carpenter’s other claims. Carpenter has failed to sufficiently plead that the public accommodations laws violate her right to free association, her right to free exercise of religion, or the Establishment Clause. She has also failed to state a plausible claim that the laws are unconstitutionally overbroad or vague.

"Accordingly, we AFFIRM in part, REVERSE in part, VACATE in part, and REMAND for further proceedings."

* The Clerk of Court is respectfully directed to amend the captions.

Click HERE to access the complete 56 page opinion by the United States Second Circuit Court of Appeals.

Procedural omissions results in the Appellate Division's remitting the matter to the Supreme Court "for the service and filing of an answer and the administrative record" and the annulling of that court's ruling with respect to the penalty imposed on the Petitioner

Plaintiff, a volunteer firefighter, was found guilty of misconduct. The penalty imposed: removal from his position and membership with the Water/Fire District [District].

Supreme Court's order and judgment denied the District's motion pursuant to CPLR §§3211(a) and 7804(f) to dismiss Plaintiff's petition, granted the Plaintiff's petition by annulling so much of the District's determination as removed the Petitioner from his office and membership with the District, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner. The District appealed the Supreme Court's decision.

The Appellate Division annulled so much of the Supreme Court's ruling as addressed the "removal of the Petitioner from his office and membership with the District and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the Petitioner", and as so modified, the Supreme Court's order and judgment was affirmed and the matter was remitted to that court "... for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition consistent herewith." 

The Appellate Division opined that the documentary evidence did not utterly refute the allegation that the penalty imposed on the Petitioner was arbitrary and capricious or that "it was the result of race-based discrimination."

The Appellate Division, accepting Petitioner's allegations as true and affording him the benefit of every favorable inference, explained "the [District] failed to demonstrate that [Petitioner] does not have a cause of action for relief pursuant to CPLR article 78"* and that Supreme Court had properly denied the District's motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. However, Supreme Court, said the Appellate Division "should not have awarded [Petitioner] the ultimate relief sought in the petition, since the [District] had not yet filed an answer or the administrative record."

* Citing Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900.

 

Matter of Thomas v Garden City Park Water/Fire Dist.

2024 NY Slip Op 03759

Decided on July 10, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 10, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
JANICE A. TAYLOR
CARL J. LANDICINO, JJ.

2022-00509
(Index No. 604169/21)

[*1]In the Matter of Jensen Thomas, respondent,

v

Garden City Park Water/Fire District, et al., appellants.

Bond, Schoeneck & King PLLC, New York, NY (Gregory B. Reilly, Stephanie M. Campbell, and Mallory Campbell of counsel), for appellants.

 

Ruskin Moscou Faltischek P.C., Uniondale, NY (E. Christopher Murray and Nicole Osborne of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Board of Commissioners of the Garden City Park Fire District dated February 25, 2021, as, after a hearing, and upon finding the petitioner guilty of misconduct, removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, the appeal is from an order and judgment (one paper) of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered November 22, 2021. The order and judgment denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, granted the petition, annulled so much of the determination as removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner.

ORDERED that the order and judgment is modified, on the law, by deleting the provisions thereof granting the petition, annulling so much of the determination as removed the petitioner from the office of captain in the Garden City Park Water/Fire District and from membership therein, and remitting the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner; as so modified, the order and judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the service and filing of an answer and the administrative record within 20 days after the date of this decision and order, and for further proceedings on the petition consistent herewith.

The petitioner served as a volunteer firefighter with the respondent Garden City Park Water/Fire District (hereinafter the District), and in 2016, he was elected captain of his company. On February 13, 2020, the Board of Commissioners of the Garden City Park Fire District (hereinafter the Board), which consisted of the respondents Chris Engel, Kenneth Borchers, and Peter Chimenti, issued a Notice of Hearing and Statement of Charges, alleging that on December 12, 2019, the petitioner breached the District's constitution and bylaws and its workplace violence policy by confronting a superior officer in a threatening and disrespectful manner, refusing to comply with the superior officer's order to leave, and damaging the District's property. On February 25, 2021, the Board, after a hearing, found the petitioner guilty of all charges and removed him from the office of captain and from membership in the District.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review so much of the Board's determination as removed him from the office of captain in the District and from membership therein. Prior to answering the petition and submitting the administrative record, the respondents moved pursuant to CPLR 3211(a)(1) and (7) and 7804(f) to dismiss the petition. In an order and judgment entered November 22, 2021, the Supreme Court denied the respondents' motion to dismiss the petition, granted the petition, annulled so much of the Board's determination as removed the petitioner from the office of captain in the District and from membership therein, and remitted the matter for a new determination as to the appropriate penalty to be imposed upon the petitioner. The respondents appeal.

"On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference" (Matter of Silverman v Town of Ramapo, 222 AD3d 652, 653). When evidentiary material outside the pleading's four corners is considered on a motion pursuant to CPLR 3211(a)(7) and the motion is not converted into one for summary judgment, the question becomes whether the pleader has a cause of action, not whether the pleader has stated one and, unless it has been shown that a material fact as claimed by the pleader is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d 896, 899). "On a motion to dismiss a petition pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the petitioner's factual allegations, conclusively establishing a defense as a matter of law" (id. [internal quotation marks omitted]).

Here, the documentary evidence did not utterly refute the allegation that the penalty imposed on the petitioner was arbitrary and capricious or that it was the result of race-based discrimination (see id. at 900). Similarly, accepting the petitioner's allegations as true and affording him the benefit of every favorable inference, the respondents failed to demonstrate that the petitioner does not have a cause of action for relief pursuant to CPLR article 78 (see Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900). Accordingly, the Supreme Court properly denied the respondents' motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition. However, the court should not have awarded the petitioner the ultimate relief sought in the petition, since the respondents had not yet filed an answer or the administrative record (see CPLR 7804[f]; Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d at 900; Matter of Irfan v Vullo, 168 AD3d 733, 734).

Accordingly, we remit the matter to the Supreme Court, Nassau County, for the service and filing of an answer and the administrative record, and thereafter for further proceedings consistent herewith.

DILLON, J.P., MALTESE, TAYLOR and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

Courts must construe New York State's Freedom of Information Law [FOIL] liberally, and "require[ ] government agencies to make available for public inspection and copying all records"

Regulations of New York State's Public Employment Relations Board [PERB] include 4 NYCRR 208.3(c), which states, in pertinent part, that "[s]tenographic services at hearings held by [PERB] are provided pursuant to arrangements under which the stenographer has exclusive right to reproduce and sell copies of minutes at hearings. While the minutes of hearings may be inspected at the offices of [PERB], any person desiring a copy of minutes must make arrangements directly with the stenographer."

Addressing 4 NYCRR 208.3(c), the Appellate Division noted "It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme" and opined 4 NYCRR 208.3(c) "is inconsistent with State Administrative Procedure Act §302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request." 

Further, said the Appellate Division, 4 NYCRR 208.3(c) "... is inconsistent with the statutory scheme of FOIL," which '"imposes a broad standard of open disclosure in order to achieve maximum public access to government documents'", citing  Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417.

 

Matter of DeWolf v Wirenius

2024 NY Slip Op 03790

Decided on July 11, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:July 11, 2024

CV-24-0019

[*1]In the Matter of Andrew P. DeWolf, Appellant,

v

John Wirenius, as FOIL Appeals Officer, et al., Respondents.

Calendar Date:June 4, 2024
Before:Egan Jr., J.P., Clark, Reynolds Fitzgerald, McShan and Powers, JJ.

Andrew P. DeWolf, Lyons, appellant pro se.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for John Wirenius and another, respondents.

Daniel C. Connors, County Attorney, Lyons (Erin M. Hammond of counsel), for Kelley Loveless, respondent.

Reynolds Fitzgerald, J.

Appeal from a judgment of the Supreme Court (Christina L. Ryba, J.), entered December 11, 2023 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint.

In 2022 through 2023, petitioner and Wayne County were involved in administrative hearings held before the Public Employment Relations Board (hereinafter PERB). In July 2022, petitioner submitted a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to the County for copies of hearing transcripts. Petitioner's initial request was denied by the County's records access officer, respondent Kelley Loveless, and this denial was administratively upheld by the County's records access appeals officer. Subsequently, petitioner received a favorable advisory opinion from the Committee on Open Government ^[FN1] finding the County's purported exemptions to disclosure misplaced; therefore the appeals officer reversed the earlier decision and, in October 2022, granted petitioner access to and provided copies of the transcripts. Petitioner made successive FOIL requests for additional hearing transcripts. In response, the County certified that it had no records responsive to his requests. The County's records access appeals officer administratively affirmed the determination.

In January 2023, petitioner sought the hearing transcripts via a FOIL request submitted to PERB. The FOIL officer, respondent Sarah Coleman, initially advised petitioner that he could inspect the transcripts at PERB's office, but that since the transcripts are the private work product owned by the stenographer, who has the exclusive right to reproduce and sell copies of the minutes, petitioner would not be allowed to make copies of same. Coleman further directed that petitioner contact the stenographer to make arrangements to receive copies of the transcripts or, if petitioner so directed, PERB would contact the stenographer on his behalf. In February 2023, Coleman formally denied petitioner's request for copies of the hearing transcripts — citing to PERB's regulation contained in 4 NYCRR 208.3 (c), stating that "[s]tenographic services at hearings held by [PERB] are provided pursuant to arrangements under which the stenographer has exclusive right to reproduce and sell copies of minutes at hearings. While the minutes of hearings may be inspected at the offices of [PERB], any person desiring a copy of minutes must make arrangements directly with the stenographer." Respondent John Wirenius, PERB's records access appeals officer, administratively affirmed the determination.

Petitioner commenced this combined proceeding pursuant to CPLR article 78 to challenge respondents' determinations and action for declaratory judgment declaring that 4 NYCRR 208.3 violates FOIL. In lieu of answering, respondents moved to dismiss the petition/complaint. Supreme Court granted the motions and dismissed the petition[*2]/complaint, finding that the affirmations of Loveless and the county attorney's secretary certifying that the County did not possess the requested records satisfied Public Officers Law § 89 (3), and that petitioner's contention that respondents are impermissibly withholding the requested transcripts is unsupported speculation. The court further found that petitioner's remaining contentions and claims lacked merit. Petitioner appeals.

As a preliminary matter, Supreme Court also dismissed the petition/complaint against the Attorney General. The record confirms that petitioner's request for information was directed to and denied exclusively by the County and PERB. Inasmuch as the Attorney General's office was not an agency involved in the FOIL request, and is without authority to grant relief requested by petitioner, the Attorney General is not a proper party herein (see Matter of Davis v Evans, 97 AD3d 857, 858 [3d Dept 2012]; Matter of Abreu v Hogan, 72 AD3d 1143, 1144 [3d Dept 2010], appeal dismissed 15 NY3d 836 [2010]).

As to the FOIL requests denied by the County, petitioner contends that Loveless failed to perform a diligent search for the requested records and thus improperly certified that the County was not in possession of the records. "Under FOIL, all government records are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officer[s] Law § 87 (2)" (Matter of Aron Law PLLC v Sullivan County, 214 AD3d 1186, 1188 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Cohen v Alois, 201 AD3d 1104, 1105 [3d Dept 2022]). "[A] government entity that does not supply any record in response to a FOIL request 'shall certify that it does not have possession of such record or that such record cannot be found after diligent search' " (Matter of Thomas v Kane, 203 AD3d 1487, 1489 [3d Dept 2022], quoting Public Officers Law § 89 [3] [a]). " 'Neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required' " (Matter of Jackson v Albany County Dist. Attorney's Off., 176 AD3d 1420, 1421 [3d Dept 2019], quoting Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001])."Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if [he or she] can articulate a demonstrable factual basis to support the contention that the requested document[s] exist[ ] and [were] within the agency's control" (Matter of Jewish Press, Inc. v New York State Police, 207 AD3d 971, 973 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; see Matter of Cortex Tel. LLC v New York State Dept. of Health, 222 AD3d 1083, 1085 [3d Dept 2023]).

In support of the County's motion to dismiss the petition, the County submitted the affidavits of Loveless and the county attorney's secretary. Loveless averred that after receiving [*3]each of petitioner's FOIL requests "[she], or someone delegated by [her], contacted Wayne County's outside counsel handling the PERB proceeding and inquired as to whether she was in possession of the transcripts requested. . . . Each time, [she] or [her] representative, was informed by Wayne County's outside counsel that she had elected NOT to order the transcripts and was not in possession of them." She further averred that "[she], or [her] representative, also contacted the relevant department head (in this case, the department head for Advanced Life Support)^[FN2] to ensure he did not possess the transcripts at issue. Each time inquiry was made of him, the department head stated he did not possess any of the transcripts sought by [p]etitioner." Thereafter, Loveless issued certifications that the County had no records responsive to petitioner's requests for transcripts. Additionally, the county attorney's secretary — who assists Loveless in processing and responding to FOIL requests — avowed that, after receiving each of petitioner's requests, she directly contacted the County's outside counsel and inquired as to whether she was in possession of the additional transcripts requested, and was informed by outside counsel that she had elected not to order the transcripts and was not in possession of them. The secretary further avowed that she had also contacted the relevant department head to ensure he did not possess the transcripts at issue, and was informed by him that he did not possess any of the transcripts sought by petitioner and that she then advised Loveless of this information. These affidavits satisfied the County's obligation under Public Officers Law § 89 (3) (see Matter of Aron Law PLLC v Sullivan County, 214 AD3d at 1189; Matter of Jackson v Albany County Dist. Attorney's Off., 176 AD3d at 1421).

Notwithstanding the County's representations that outside counsel elected not to order the transcripts, petitioner submitted copies of invoices showing that counsel had ordered and been billed for transcripts of the requested hearings. Additionally, at oral argument, counsel relayed that she spoke to outside counsel, who stated that she ordered the transcripts but did not obtain them because she did not want to turn the transcripts over to petitioner. As such, we remit the matter to Supreme Court for a hearing on the issue of whether Loveless properly certified that the requested documents are not within the County's control, as a "[r]ecord means any information kept, held, filed, produced or reproduced by, with or for an agency" (Public Officers Law§ 86 [4] [internal quotation marks omitted]; see Matter of Gould v New York City Police Dept., 89 NY2d 267, 278-279 [1996]; Matter of Binghamton Precast & Supply Corp. v New York State Thruway Auth., 196 AD3d 944, 946 [3d Dept 2021]).

As to PERB's denial of petitioner's requests for hearing transcripts, petitioner contends that 4 NYCRR 208.3 violates the mandates of FOIL. "FOIL requires that an agency[*4], in accordance with its published rules, make available for public inspection and copying all records, except those records or portions thereof that are statutorily exempt from disclosure" (Matter of Spence v New York State Dept. of Civ. Serv., 223 AD3d 1019, 1020 [3d Dept 2024] [internal quotation marks and citations omitted]). Likewise, the State Administrative Procedure Act requires that "[u]pon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he [or she] may request" (State Administrative Procedure Act § 302 [2] [emphasis added]). In response to petitioner's FOIL request, PERB stated that petitioner had to obtain the records from the stenographer in accordance with 4 NYCRR 208.3 (c).

"It is established as a general proposition that a regulation cannot be inconsistent with a statutory scheme" (Matter of Zuckerman v New York State Bd. of Parole, 53 AD2d 405, 407 [3d Dept 1976] [citation omitted]; see Matter of Jones v Berman, 37 NY2d 42, 53 [1975]; Sciara v Surgical Assoc. of W. N.Y., P.C., 104 AD3d 1256, 1257 [4th Dept 2013], appeal dismissed 22 NY3d 951 [2013]). Here, 4 NYCRR 208.3 (c) is inconsistent with State Administrative Procedure Act § 302 (2), which imposes a duty on the agency to furnish a copy of the transcript to a party upon request.^[FN3] Moreover, it is inconsistent with the statutory scheme of FOIL, which "imposes a broad standard of open disclosure in order to achieve maximum public access to government documents" (Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417, 1418 [3d Dept 2010] [internal quotation marks, brackets and citation omitted], affd 18 NY3d 42 [2011]; see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 173 AD3d 8, 10 [3d Dept 2019]).Courts must construe FOIL liberally, to "require[ ] government agencies to make available for public inspection and copying all records" (Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 73 [2017] [internal quotation marks and citations omitted]; see Matter of Broach & Stulberg, LLP v New York State Dept. of Labor, 195 AD3d 1133, 1134 [3d Dept 2021], lv denied 37 NY3d 914 [2021]). Accordingly, Supreme Court improperly granted PERB's motion to dismiss and we remit the matter to Supreme Court for PERB to file an answer pursuant to CPLR 7804 (f). Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit or rendered academic.

Egan Jr., J.P., Clark, McShan and Powers, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much [*5]thereof as dismissed the petition against respondents Kelley Loveless, John Wirenius and Sarah Coleman; matter remitted to the Supreme Court to permit PERB to serve an answer within 20 days of the date of this Court's decision and for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: The Committee on Open Government oversees and advises the government, public and news media on FOIL and other open meetings laws. The committee offers guidance in response to inquiries and prepares written legal advisory opinions to the government and other interested groups (see Public Officers Law § 89 [1] [b]).

Footnote 2: Petitioner was employed in the advanced life support department and it is the county department involved in the administrative hearings.

Footnote 3: Petitioner is required to pay a statutory fee for said copy.

 

 

Reviewing a determination of the New York State Comptroller denying petitioner's application for a recalculation of his final average salary for the purposed of determining the pension portion of his retirement benefit to be paid by the New York State and Local Retirement System

The New York State Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the "determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence".

The New York State Retirement and Social Security Law provides 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" and, with respect to the payment of overtime, General Municipal Law §90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system."

As this language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority",  "overtime payments are not duly authorized or considered as salary within the meaning of General Municipal Law §90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment'".

In this instance the Appellate Division annulled so much of the Comptroller's calculation as excluded certain holiday pay from the calculation of petitioner's final average salary and granted the petitioner's petition to that extent and matter remitted to the Comptroller for further proceedings "not inconsistent with this Court's decision" and, "as so modified, confirmed" the Comptroller's calculation of the petitioner's pension benefit.

Matter of Gallante v DiNapoli

2024 NY Slip Op 03370

Decided on June 20, 2024

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:June 20, 2024

CV-23-1408

[*1]In the Matter of Tory Gallante, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, et al., Respondents.

Calendar Date:April 25, 2024
Before:Egan Jr., J.P., Aarons, Fisher, McShan and Mackey, JJ.

Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), for petitioner.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Aarons, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's application for recalculation of his final average salary.

After a 30-year career as a firefighter, petitioner retired as Chief of the Arlington Fire District in March 2019 and began collecting retirement benefits. In 2020, the New York State and Local Retirement System notified petitioner that, after receiving salary information from the District, certain earned compensation would be excluded from the calculation of his final average salary. Accordingly, petitioner's monthly retirement benefit amount was reduced, and petitioner was advised that he would be charged with an overpayment. Petitioner applied for a hearing and redetermination of his retirement benefits (see Retirement and Social Security Law §§ 74 [d]; 374 [d]). Following a hearing, the Hearing Officer determined that the Retirement System properly excluded petitioner's overtime pay, a staff development stipend and a portion of holiday pay from his final average salary. Respondent Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and denied petitioner's application, prompting this CPLR article 78 proceeding.

The Comptroller is vested with the exclusive authority to resolve applications for retirement benefits and the "determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence" (Matter of Schwartz v McCall, 300 AD2d 887, 888 [3d Dept 2002] [internal citations omitted]; accord Matter of O'Brien v DiNapoli, 116 AD3d 1124, 1125 [3d Dept 2014]). "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" (Matter of Glozek v DiNapoli, 221 AD3d 1231, 1233 [3d Dept 2023] [internal quotation marks, ellipsis and citations omitted]; see Retirement and Social Security Law § 2 [9]).

Regarding the payment of overtime, General Municipal Law § 90 authorizes governing boards to provide for the payment of overtime compensation to public officers and public employees who "are required to work in excess of their regularly established hours of employment" and mandates that the payments be considered as salary "for any of the purposes of any pension or retirement system." This language must be strictly construed in view "of the constitutional provision against the expenditure of public funds absent express statutory authority" (Conrad v Regan, 175 AD2d 629, 629-630 [4th Dept 1991], lv denied 78 NY2d 860 [1991]; see NY Const, art VIII, §1; Matter of Murray v Levitt, 47 AD2d 267, 269 [3d Dept 1975], lv denied 37 NY2d 707 [1975]). Consequently, "overtime [*2]payments are not duly authorized or considered as salary within the meaning of General Municipal Law § 90 unless paid pursuant to 'an overtime plan setting forth in detail the terms, conditions and remuneration for such employment' " (Matter of Shames v Regan, 132 AD2d 743, 744 [3d Dept 1987] [emphasis omitted], quoting Matter of Murray v Levitt, 47 AD2d at 269; see Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d 1062, 1063 [3d Dept 1976]).

Petitioner first contends that the Comptroller's interpretation of General Municipal Law § 90 is unreasonable. We disagree. At the hearing, the assistant director of the Retirement System's Benefit Calculation and Disbursements Bureau explained that, under General Municipal Law § 90, salary may only include overtime payments that are part of a comprehensive written overtime plan. To determine whether petitioner's employment agreements with the Arlington Fire District Board of Fire Commissioners met the requirements of such a plan, the Retirement System considered five factors: (1) the amount of compensation to be paid; (2) whether there is a cap on the compensation; (3) whether the plan provides when and how the payments are made; (4) whether approval is required prior to the overtime being performed; and (5) whether the plan provides that the pay is for work performed beyond the regular workday. In our view, these factors rationally correspond to statutory language authorizing overtime for employees who "are required to work in excess of their regularly established hours of employment" at either their regular rate of pay or some other rate set by the governing board (General Municipal Law § 90 [emphasis added]; see Matter of Bascom v McCall, 221 AD2d 879, 880 [3d Dept 1995]; Conrad v Regan, 175 AD2d at 629-630; Matter of Shames v Regan, 132 AD2d at 745).

Next, and contrary to petitioner's view, the Comptroller rationally excluded petitioner's overtime payments because the employment agreements (i) did not prescribe when and how overtime would be worked, (ii) did not identify petitioner's regularly scheduled hours of employment, and (iii) did not indicate whether prior approval was required for the performance of overtime work. The agreements established that petitioner's "[w]orking hours will be 40 hours per week on a five day a week basis." Although "[t]he typical work week is Monday through Friday," petitioner had discretion to vary his weekly schedule "for the best use to fit the District's needs." Further, neither the agreements nor the Board's eight-hour workday resolution specified which hours of the day petitioner was required to work. Taken together, the Comptroller rationally concluded that petitioner did not have "regularly established hours" within the meaning of General Municipal Law § 90.

As to overtime requirements, the agreements specified that any work in excess of 40 hours per week would be paid with compensatory time. According to the record and representations at oral [*3]argument, compensatory time was generally calculated at petitioner's hourly rate of pay. Petitioner testified that he earned compensatory time for off-hours meetings and non-emergency work. Emergency call-back hours — time spent fighting fires outside of the regular workday — were compensated at time and a half pay. Although these provisions authorized petitioner to work overtime, they did not specify any terms or conditions that would require him to do so (see General Municipal Law § 90; Conrad v Regan, 175 AD2d at 629-630). Given the absence of a provision for prior approval — a finding that petitioner does not dispute — the Comptroller appropriately found that the agreements do not cover when or how petitioner worked overtime.^[FN1] In sum, because the employment agreements appear to have given petitioner a "free hand in determining when and for how long [he] would work" (Matter of Murray v Levitt, 47 AD2d at 269), the Comptroller's determination excluding petitioner's overtime payments from his final average salary is reasonable, supported by substantial evidence and will not be disturbed (see Matter of Shames v Regan, 132 AD2d at 745; Matter of Mowry v New York State Employees' Retirement Sys., 54 AD2d at 1063).

Petitioner also challenges the exclusion of the increased compensation paid to him in 2019 for staff development from his final average salary. "Pursuant to the Retirement and Social Security Law, the salary base used to compute retirement benefits shall not include . . . compensation paid in anticipation of retirement" (Matter of Franks v DiNapoli, 53 AD3d 897, 898 [3d Dept 2008] [internal quotation marks and citation omitted]; see Retirement and Social Security Law § 431 [3]; Matter of Smith v DiNapoli, 167 AD3d 1208, 1209-1210 [3d Dept 2018]). "In determining what constitutes . . . compensation paid in anticipation of retirement, we must look to the substance of the transaction and not to what the parties may label it" (Matter of Green v Regan, 103 AD2d 878, 878-879 [3d Dept 1984]; see Matter of Smith v DiNapoli, 167 AD3d at 1210; Matter of Chichester v DiNapoli, 108 AD3d 924, 925 [3d Dept 2013]). The record reflects that petitioner informed the Board in 2018 that he was planning on retiring. By stipulation entered into in January 2019, the Board increased petitioner's hourly rate of pay by $15 effective January 7, 2019 to March 31, 2019. According to the stipulation and testimony, the extra compensation was to train his successor — a newly appointed Deputy Chief — and staff before he retired and took with him all of his institutional knowledge. Yet, the record shows petitioner's job already included planning and directing the training of staff and that petitioner had not received staff development stipends in the past. Further, the stipend was not limited to the time spent on work it was intended to compensate — it was essentially a $15 per hour raise. Accordingly, substantial evidence supports the Comptroller's determination that the [*4]January 2019 pay increase constituted compensation in anticipation of retirement and was properly excluded from the calculation of petitioner's final average salary (see Matter of Chichester v DiNapoli, 108 AD3d at 926; Matter of Franks v DiNapoli, 53 AD3d at 898).

Finally, the Retirement System concedes, and we agree, that the calculation of petitioner's final average salary improperly failed to take into account all 144 hours of his earned holiday pay. Accordingly, the matter must be remitted for a recalculation of petitioner's final average salary that includes 144 hours of holiday pay. Petitioner's remaining contentions, to the extent not specifically addressed, have been examined and found to be without merit.

Egan Jr., J.P., Fisher, McShan and Mackey, JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as excluded certain holiday pay from the calculation of petitioner's final average salary; petition granted to that extent and matter remitted to respondent Comptroller for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed.

Footnotes

Footnote 1: Petitioner testified that, under the District's time tracking system, he would fill out a form indicating the overtime he had worked on a given day either immediately after completing the work or the day after. According to petitioner, the Board had the option of reviewing payroll records at their twice-monthly meetings after the payroll process was complete. In other words, this system "does not set out any procedure for the regulation of overtime" worked by petitioner (Matter of Shames v Regan, 132 AD2d at 745), and therefore does not affect our conclusion.