Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Click on text highlighted in bold to access the full report. 

Audits of school districts release by the State Comptroller during the week ending September 7, 2013:

the Hendrick Hudson Central School District,

the Oneonta City School District, and

the Ticonderoga Central School District.

The Comptroller also released completed audits of the following State departments and agencies:

the Department of Health, Medicaid Program;

the New York Energy Research and Development Authority;

the Office of Children and Family Services, Adoption Subsidy Program;

the State Education Department and the Office of Children and Family Services, Educators for Children, Youth and Families, Inc.; and,

the Metropolitan Transportation Authority

Comptroller Dinapoli releases municipal audits

Comptroller Dinapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli office's periodically audits of local governments. The Comptroller said that the audits are designed to assist local officials make certain that “proper policies and procedures are in place to protect taxpayer dollars and provide the best possible service these taxpayer dollars can deliver."

The following audits were released on September 5, 2013 [click on heading to read the text of the audit]:

Claryville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The fire district board has adopted a code of ethics, but it has not adopted an investment policy or a procurement policy. The board also has not ensured that procedures are in place for financial recording and reporting. As a result, although the district treasurer submitted monthly financial reports to the board, they were not complete because the treasurer had not reconciled cash and bank balances.

County of Cortland – Departmental Operations (2013M-157)
County officials are not ensuring that various departmental operations and functions are operating at the lowest possible cost to taxpayers. The sheriff’s office is understaffed and incurring an average of more than $500,000 in overtime annually. The county could save upwards of $177,000 a year depending on the number of additional officers hired in the jail and road patrol.

Town of Dover – Financial Activities (Dutchess County)
The town board did not have written procedures or guidelines to ensure proper review of claims and did not perform a deliberate audit of claims or require that claims include relevant documents. In addition, the board did not properly audit claims and failed to use competition when procuring professional services.

Town of Grafton – Internal Controls Over Claims Auditing (Rensselaer County)
The town board did not ensure that detailed claims audit procedures were in place to enable it to perform a proper and thorough audit in a timely manner. Although the town established informal procedures over the claims auditing process, officials should adopt a policy to ensure timely audits are conducted and that each claim approved is a legitimate town expenditure.
 
South Byron Volunteer Fire Company, Inc. – Internal Controls Over Financial Operations (Genesee County)
The fire company has established a system of internal controls with appropriate procedures to ensure that financial activity is properly recorded and that company moneys are safeguarded. The company, however, does not have a formal policy governing the use of credit cards.

Village of Spencer – Financial Condition (Tioga County)
The village board did not ensure that the clerk-treasurer properly reported the village’s financial condition. Auditors found the clerk-treasurer submitted an annual financial report with less cash reported than the actual balance available; several expenditure lines were reported inaccurately; and the interim reports provided to the board were incomplete and did not include sufficient information to adequately monitor the village’s financial activities against the adopted budgets.

Sullivan County Industrial Development Agency – PILOT Program (2013M-161)
The Sullivan County IDA has established a Uniform Tax Exempt Policy for both general and specific-purpose projects. The policies are specific and clearly articulate project goals and abatement schedules.  The project approval process includes in-depth cost-benefit analyses based on reasonable assumptions.

Village of Unadilla – Budgeting (Otsego County)
The village board consistently adopted budgets that included overestimated expenditures, underestimated revenues, and the appropriation of fund balance that was not available to finance operations. As of May 31, 2012, the village’s general fund balance was at a deficit of $56,633, after the planned use of $94,653 to finance operations. These budgeting practices caused major fluctuations in the unexpended surplus fund balance and demonstrate a lack of financial oversight by the board.

Village of Upper Brookville – Justice Court (Nassau County)
The court clerk maintained complete, accurate and timely monthly bank reconciliations and cash accountability reports. The village justices, however, did not establish adequate procedures to monitor the court clerk’s duties or review her work. The court clerk performed several key aspects of the court’s cash accounting functions with limited oversight.

Village of Westhampton Beach – Internal Controls Over Information Technology (Suffolk County)
Village officials have not developed formal information technology policies for user access. Auditors found generic user accounts on the village’s computer system and some users unnecessarily had administrative rights. As a result of these weaknesses, the village’s IT system and its data are subject to an increased risk of corruption, loss, or misuse.

White Lake Fire District – Budgeting Practices (Sullivan County)
The fire district board has not properly developed annual operating budgets. In three of the last five fiscal years, the district spent more money than it received. In addition, the board did not monitor budget performance or adjust the budgets to reflect actual expenditures as they occurred during the fiscal year.
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Accused employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

Employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

2013 NY Slip Op 05765, Appellate Division, First Department

In the course of a disciplinary hearing, the accused employee [Petitioner] had made death threats against the arbitrator during a telephone conversation with the attorney who was then representing him in the proceeding.

When the arbitrator learned of the death threats, he recused himself and was replaced by a second arbitrator, who found Petitioner guilty of failing to properly supervise students and excessive absences. As a result, Petitioner was suspended without pay for one year.

After investigating the alleged death threats made against the first arbitrator, the appointing authority filed disciplinary charges based on that event. In the second disciplinary action the arbitrator found that the evidence supported the alleged death threats and recommended that Petitioner be terminated from his position.

The Appellate Division sustained the arbitration award, finding that it was made in accord with due process, was supported by adequate creditable evidence, was rational and was not arbitrary and capricious. Further, said the court, “hearsay evidence can be the basis of an administrative determination … and each of the specifications upheld by the arbitrator was supported by testimony of witnesses having personal knowledge of the material facts or hearsay evidence that substantiated the basis for the charges.”

As to Petitioner’s claim that the second disciplinary proceeding and the ultimate disciplinary penalty imposed against him – termination -- violated his right to free speech under the First Amendment to the United States Constitution, the Appellate Division said that “Supreme Court properly deferred to the arbitrator's finding that [Petitioner’s statements are exempt from First Amendment protection because they constitute ‘true threats.’"

The Appellate Division said that Petitioner’s former attorney “only disclosed the [death] threats because he believed that Petitioner's increasingly erratic behavior rendered him genuinely dangerous.” Under the circumstances, said the court, "it cannot be argued that Petitioner’s speech implicates matters of public concern … [n]or can it be disputed that Petitioner’s death threats disrupted the initial arbitration proceeding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05765.htm

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Provisional appointment to a vacancy

Provisional appointment to a vacancy

CSEA v Bobenhausen, 69 AD2d 983

An individual not eligible for the promotion examination or open-competitive examination for a vacant position is selected to be provisionally appointed to the vacancy. Is such an appointment lawful?

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position.

The Appellate Division in CSEA v Bobenhause, 69 AD2d 983, extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it."

The court noted that the respondent, Frederick A Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Civil Service Law §65, Provisional Appointments, provides: “1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

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Same-sex couples covered by FMLA

Same-sex couples covered by FMLA

Source: NYMUNIBLOG

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.

The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 

The full text of the posting is at http://www.harrisbeach.com/media-news/9742

The Supreme Court decision in United States v Windsor is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending August 31, 2013

The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.] 

DiNapoli: Colonie Addressing Financial Challenges

The Town of Colonie has improved its finances significantly in recent years due to stronger budget planning as it deals with fiscal stress, according to a report issued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.

DiNapoli Presents Unclaimed Funds Checks At The New York State Fair

State Comptroller Thomas P. DiNapoli presented checks to nine Central New Yorkers Monday at the New York State Fair at his Office of Unclaimed Funds booth. The largest check, for $13,864.54 for an old bank account, was given to the Fryer Memorial Library in Munnsville.

For additional information concerning “unclaimed” monies that may be claimed by public entities, click on http://publicpersonnellaw.blogspot.com/2013/08/state-comptroller-holds-125-billion-in.html

Employer Pension Contribution Rates Announced For Fiscal Year 2014–15

Employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014–15, New York State Comptroller Thomas P. DiNapoli announced Tuesday.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:

the Elmwood Village Charter School,

the Lake George Central School District,

the Southold Union Free School District,

the True North Troy Preparatory Charter School

and the Whitehall Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:

the Amsterdam Housing Authority,

the Village of Chatham and

the Lakeland Fire District.

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Labor Day Message from NYS Comptroller DiNapoli

Labor Day Message from NYS Comptroller DiNapoli

On the first Monday in September each year, we gather to honor the contributions that American workers have made to our country’s economic strength, cultural vitality and democratic way of life. The tradition of celebrating Labor Day began in New York City in 1882 and quickly spread throughout the country; the U.S. Congress passed a law establishing Labor Day as a federal holiday in 1894. Then as now, people marked the occasion with parades and picnics, savoring the last days of summer in the company of friends and family.

As we pause from our own labors this September 2nd, we have an opportunity to reflect on all that working men and women have achieved through the generations in building this nation we love. I wish you all a joyful and refreshing Labor Day.
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Employee disciplined for off-duty misconduct

Employee disciplined for off-duty misconduct

OATH Index No. 1304/13

An OATH Administrative Law Judge ruled that a New York City correction officer was subject to disciplinary action because there was a sufficient nexus between the employee's fraudulent off-duty misconduct and his position with the New York City Department of Correction. 

Disciplinary charges were filed against a correction officer who had pled guilty to operating a home improvement business without a license. The officer had been arrested and indicted on charges of grand larceny in the third degree, a class D felony, and

petit larceny, a class A misdemeanor. He subsequently entered a guilty plea to a violation of the New York City Administrative Code.

ALJ Ingrid M. Addison found that the correction officer used the name and license number of a corporation with which he was not affiliated to hold himself out as a licensed contractor, contracted with a home owner, took a $35,000 advance, and failed to perform the work under the contract. 

The ALJ also found that the correction officers off-duty conduct “violated the Department’s rules and was of a nature to bring discredit upon the Department [and] his conduct [bore] a nexus to his job as a correction officer.

Noting that the officer made restitution to the home-owner “only when he faced significant jail time,” Judge Addison recommended termination of the officer’s employment. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-1304.pdf

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IRS announces it will treat same-sex marriages the same as heterosexual ones

IRS announces it will treat same-sex marriages the same as heterosexual ones

Source: Washington Post National News Alert

The Treasury Department and Internal Revenue Service announced on Thursday that they would treat legal same-sex marriages the same as heterosexual marriages for federal tax purposes. 

The new policy, which comes in response to a June Supreme Court ruling that overturned a key portion of the Defense of Marriage Act, allows same-sex spouses to file tax returns as married couples regardless of whether they live in jurisdictions that recognize gay unions.

Read more at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/
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Correction officers disciplined after being found guilty of using unnecessary force against an inmate

Correction officers disciplined after being found guilty of using unnecessary force against an inmate

OATH Index Nos. 734/13

The New York City Department of Correction brought charges against two correction officers alleging they used of excessive or unnecessary force against an inmate.

The Department charged that one officer struck the inmate in the face and the other pulled the inmate’s legs out from under him, causing him to fall to the ground.

The Department also charged the two officers with submitting false or misleading statements during Mayoral Executive Order [MEO] 16 interviews. Three other officers were also charged with filing false and/or misleading MEO 16 statements. 

OATH Administrative Law Judge Astrid B. Gloade found that all the charges were sustained.

Noting that most of the officers had no prior disciplinary record, ALJ Gloade recommended suspensions of 60 days for the officer who struck the inmate, 25 days for the officer who caused the inmate to fall; and 15- and 20-day suspensions for those who filed false reports.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-734.pdf
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Private sector prevailing wage rates and the public sector

Private sector prevailing wage rates and the public sector

OATH Index No. 126/13

OATH Administrative Law Judge Alessandra F. Zorgniotti commenced her analysis of this complaint filed by The International Brotherhood of Teamsters (Local 237) by citing §220(3)(a)] of the New York State Labor Law. This provision requires public employers, including the City of New York, to pay “laborers, workmen, or mechanics” in its employ the prevailing rate of wages and supplemental benefits paid in the private sector “for a day’s work in the same trade or occupation in the locality” where the work is performed.

Although the statute refers to the rates paid in the “same” trade or occupation, courts have recognized that a comparison may be made to workers doing similar jobs. The City’s Comptroller was thus required to determine the prevailing rate of wages paid to those workers whose trade or occupation was “comparable” to city-employed maintenance workers.

Local 237's complaint sought a determination of the prevailing wages and benefits for elevator mechanics, supervisor elevator mechanics, and elevator mechanic helpers employed by the City should be that set by the Elevator Manufacturers Association of New York and the International Union of Elevator Constructors Local Union No.1. 

The Comptroller had made a preliminary determination that elevator mechanics and their supervisors should be paid the same as comparable private sector titles covered by the Local 1 contract and that helpers should be paid the same as helpers covered by the contract between the Elevator Industries Association, Inc.and the International Brotherhood of Electrical Workers Local 3.  

Judge Alessandra F. Zorgniotti upheld the Comptroller’s preliminary determination finding that because Local 1 was the prevailing union and had comparable titles, elevator mechanics and supervisors should be paid at Local 1 rates. 

The ALJ noted that as there was no comparable permanent helper title in Local 1, the helpers were properly found to be comparable to the Local 3 helpers.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-126.pdf
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Employer pension contribution rates announced for fiscal year 2014-15

Employer pension contribution rates announced for fiscal year 2014-15

Source: Office of the State Comptroller

On August 27, 2013, Comptroller Thomas P. DiNapoli reported that employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014-15.

The average contribution rate for the Employee Retirement System (ERS) will decrease by 0.8 percent of payroll, from 20.9 percent to 20.1 percent. The average contribution rate for the Police and Fire Retirement System (PFRS) will decrease by 1.3 percent of payroll, from 28.9 percent to 27.6 percent.

“The New York State Common Retirement Fund’s strong gains over the last four years have mitigated some of the impact of the financial market collapse of 2008-2009,” DiNapoli said. “Strong investment performance, along with a revision in actuarial smoothing, has lowered the employer contribution rate for 2014-15.”

Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s actuary and approved by DiNapoli.

The Retirement System’s actuary recommended a change based on a recommendation from Buck Consultants, LLC, as part of an independent actuarial review which is performed every five years. The previous method separated assets into equities and non-equities, while the new method expects the entire fund to earn the assumed rate of return and smoothes any unexpected gains or losses. According to Buck, the new method is generally used by the majority of public pension systems nationwide.

In 2012, DiNapoli directed the Retirement System to give employers access to a full projection of their annual pension bill by September 1, six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets and calculation of tax levies subject to the property tax cap effective for fiscal years that begin in 2014.

Projections of required contributions will vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. The employer contribution rates announced today will apply to each employer’s salary base during the period of April 1, 2014 through March 31, 2015. Payments based on those rates are due by February 1, 2015, but may be pre-paid on December 15, 2014.

N.B. The property tax cap generally limits the amount a government entity can increase its annual tax levy to two percent or the rate of inflation, whichever is less. The cost of pensions above a change in the average contribution rate by more than two percentage points is excluded from the tax cap. Since the ERS and PFRS rates have declined, there will not be any exclusion for this period.
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