ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Oct 1, 2013

Termination of General Municipal Law §207-a benefits


Termination of General Municipal Law §207-a benefits
2013 NY Slip Op 06162, Appellate Division, Fourth Department

A firefighter claimed that he suffered an injury to his neck and that as a result he was disabled from work. He was granted benefits pursuant to General Municipal Law §207-a. 

The City's Fire and Police Board then appointed a hearing officer and initiated administrative proceedings to determine if the firefighter’s §207-a benefits should be terminated. Ultimately the Hearing Officer's determined that firefighter's disability “was not causally related to his job duties” and recommended that the firefighter's §207-a benefits should be discontinued.

The Board adopted the findings and recommendation of the Hearing Officer and terminated the firefighter's §207-a benefits and the firefighter initiated an Article 78 action seeking a court order vacating the Board's decision.

The Appellate Division dismissed the firefighter’s challenge to the Board’s action, holding that the hearing officer’s determination was supported by substantial evidence.

Noting that the firefighter had presented evidence to support his claim that he had suffered a injury in the course of his performing his duties during the administrative hearing, the Appellate Division explained that "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence and to assess the credibility of witnesses, and [courts]  may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists.

The decision is posted on the Internet at:

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Sep 30, 2013

Filing an application with the court to have a local public official removed from his or her public office


Filing an application with the Appellate Division to have a local public official removed from his or her public office
2013 NY Slip Op 06141, Appellate Division, Fourth Department

Public Officers Law §36 permits a “citizen resident” of a town, village, improvement district or fire district to file an application seeking the removal of an officer of the jurisdiction, other than a justice of the peace, for alleged “… misconduct, maladministration, malfeasance or malversation in office” with the Appellate Division of Supreme Court.* The term maladministration is used to describe one's performing official duties corruptly or inefficiently, the term malfeasance refers to performing one's official duties inadequately or poorly, and the term malversation refers to the misuse of public or other funds while holding public office.

A member of the Town Council [Member A] initiated a proceeding in the Appellate Division pursuant to Public Officers Law §36 seeking the removal of another member of the Town Council [Member B] from office for alleged “wrongdoing.” Member A’s petition alleged instances of conflicts of interest and self-dealing on the part of Member B, an attorney with a legal practice in the Town.** 

1. Member A alleged that Member B filed a Notice of Claim against the town on behalf of a legal client after taking office, that Member B was the subject of a complaint of harassment filed by a town employee and that Member B “repeatedly [filing] frivolous actions" against the Town.

The Appellate Division held the Member B “conclusively refuted” all of Member A’s allegations, and that Member A failed to present evidence to the contrary sufficient to raise a triable issue of fact.
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2. Member A alleged that Member B had "repeatedly appeared" in the Town's Justice Court on behalf of his clients..

Member B, said the court, “conclusively refuted that allegation” by submitting an affidavit by a Town Justice who affirmed that Member B had not appeared in the Town's Justice Court "after taking his elected position." Member A, said the court, “failed to present any evidence to the contrary.”

3. Member A alleged that Member B circulated an email to a Town employee facing disciplinary charges.

The Appellate Division held that here was no indication that the e-mail constituted "confidential correspondence" that Member B should not have sent to that Town employee.

Accordingly, the Appellate Division dismissed Member A’s petition.

* §36 requires that the officer be notified of the fact that an application seeking his or her removal, together with a copy of the allegations, to be served on the official at least eight days prior to the filing of the application with the court.

** In Jones v Filkins, 238 AD2d 954, the Appellate Division indicated that removal of an individual from public office is appropriate in situations involving “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_06141.htm
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Sep 28, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013
Click on text highlighted in color to access the full report

Statement of New York State Comptroller Thomas P. Dinapoli on EXXONMOBIL decision to offer benefits to same-sex married couples in the United States

This is a very positive step for the LGBT community and a vindication of years of efforts by shareholders and activists across the country. This policy would not have been possible without President Obama’s leadership in directing federal agencies to establish the “Place of Celebration” standard for recognition of same-sex marriages. He took a stand for human rights and the belief that everyone deserves equal treatment.

Corporate discrimination in any form is simply not good business. On behalf of those who have supported the New York State Common Retirement Fund’s shareholder resolutions on this issue over these past four years, I am gratified that ExxonMobil, one of the largest corporations in the world and one of the [NYS Employees’ Retirement] Fund’s largest holdings, will treat its employees with the dignity, equality and respect that they deserve.
  

DiNapoli: MTA Budget Outlook Improves

The Metropolitan Transportation Authority (MTA) is on stronger financial footing than seven months ago with $1.9 billion in unanticipated resources now expected to be available over the course of the financial plan period, yet it still plans to raise fares and tolls by 15 percent over a three–year period, according to an analysisof the MTA’s financial plan released Friday by New York State Comptroller Thomas P. DiNapoli. The MTA plans to use the bulk of the unanticipated resources to improve service and maintenance, reduce the size of projected budget gaps and help fund the next capital program.


A.G. Schneiderman Announces Arrest of Former Nonprofit Director For Involvement in Scheme to Steal More Than $5 Million

New York State Attorney General Eric T. Schneiderman announced Tuesday the arrest of William Rapfogel, former Executive Director and Chief Executive Officer of the Metropolitan Council on Jewish Poverty (“Met Council”), on felony charges of grand larceny, money laundering, criminal tax fraud, and conspiracy, among others. The Attorney General’s complaint charges Rapfogel with conspiring with others to inflate the rate of insurance policies paid by Met Council while pocketing the difference in cost, amounting to more than $5 million stolen from the organization over roughly 20 years. Rapfogel received payments on a regular basis in envelopes of cash and in the form of checks for personal expenses, such as payment for a home contractor.


DiNapoli: More Counties, Towns, Cities Identified in Fiscal Stress

Fourteen local governments, including Rockland, Suffolk, Nassau and Erie counties, have been designated as fiscally stressed in the latest update of State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. The update was issued in conjunction with a reporthighlighting the similarities among localities listed in fiscal stress.


DiNapoli: Audit Uncovers $55,000 in Suspicious Spending at West Seneca Fire District

Officials with the West Seneca Fire District #6 spent nearly $55,000 in public funds for personal meals, travel expenses, expensive jewelry and internet and cable service, according to an audit and investigation by State Comptroller Thomas P. DiNapoli. The case was referred to Erie County District Attorney Frank A. Sedita. Based on the Comptroller’s audit, Sedita’s office charged district treasurer Diane Nowicki with petit larceny. She appeared in Orchard Park town court on Sept. 26 where she pleaded guilty.


Statement of State Comptroller Thomas P. DiNapoli on Qualcomm leading CPA–Zicklin Index of Corporate Political Spending Disclosure

New York State Comptroller Thomas P. DiNapoli Wednesday applauded Qualcomm Inc. for achieving a top ranking in the 2013 CPA–Zicklin Index of Corporate Political Accountability and Disclosure. This new recognition comes after the New York State Common Retirement Fund and Qualcomm reached an agreement for the company to disclose how shareholder funds are used for political purposes.


Comptroller DiNapoli Releases School Audits

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






Comptroller DiNapoli Releases Municipal Audits

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



 the Town of Wheatfield.
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Sep 27, 2013

Moreland Commission to Investigate Public Corruption update


Moreland Commission to Investigate Public Corruption update


The first Moreland Commission to Investigate Public Corruption hearing, held on September 17th, 2013 in New York City, heard testimony focusing on federal and state criminal laws and the adequacy of existing state laws, rules and regulations involving misconduct by public officials.

A 3 ½  hour video of the hearing is posted on U-tube at:

The second Moreland Commission to Investigate Public Corruption hearing, held on September 24, 2013, in Albany, New York, heard testimony focusing on campaign finance, outside income of state elected officials and political party housekeeping accounts.
A 2 ½ hour video of the hearing, is posted on U-tube at: 
http://www.youtube.com/watch?v=iLEhNUVdQaU
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Excessed employees in Japan are assigned to “the chasing-out room”

Excessed employees in Japan are assigned to “the chasing-out room”
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2013, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, New York Law School, All rights reserved.

“Sony, [the] employer of [the] individual for 32 years, consigned him to a room because [it] can’t get rid of him. Sony had eliminated his position at the Sony Sendai Technology Center, which in better times produced magnetic tapes for videos and cassettes. But the individual, now age 51, refused to take an early retirement offer from Sony in late 2010 — his prerogative under Japanese labor law.

“So there he sits in what is called the “chasing-out room.” He spends his days there, with about 40 other holdouts.”

The full text of the article is posted on the Internet at: http://nyti.ms/14UNtAQ 

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
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The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related post-traumatic stress disorder with competent medical evidence


The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related  post-traumatic stress disorder with competent medical evidence
Ginther v Kelly, 2013 NY Slip Op 05967, Appellate Division, First Department

§13-252.1 of New York City’s Administrative Code, was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

Mary Gintherfiled a petition pursuant to CPLR Article 78 challenging the New York City Police Commissioner’s denying her application for World Trade Center accidental disability retirement benefits. Supreme Court dismissed Ginther’s petition and she appealed.

The Appellate Division unanimously reversed the lower court’s ruling “on the law” and annulled the Commissioner’s decision, remitting the matter to the Police Board of Trustees for recomputation of the appropriate level of benefits to be awarded to Ginther.

The Appellate Division said that the Kelly respondents “failed to meet their burden of providing competent evidence rebutting [Ginther’s] medical evidence that she suffered from post-traumatic stress disorder and depression following her service as a police officer at the World Trade Center site from September 12, 2001 until November 28, 2001.

Citing Samadjopoulos v New York City Employee’s Retirement System, 104 AD3d 268,* the Appellate Division explained that while “the Medical Board is empowered to resolve conflicting evidence, it may not ignore medical evidence and speculate as to other causes of disabling medical conditions in order to rebut the statutory presumption.”

According to the decision, the Medical Board had rejected the conclusion of Ginther’s doctors based on her delay in seeking diagnosis and treatment for her medical condition, and concluded, instead, that Ginther had suffered from a personality disorder. However, said the Appellate Division, the Medical Board did not cite any credible or competent medical evidence support of its diagnosis.

Further, said the court, the Medical Board failed to provide credible evidence or research concerning the onset of a personality disorder in middle age, a conclusion disputed by Ginther's doctor.

* The Samadjopoulos decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2013/2013_01901.htm

The Ginther decision is posted on the Internet at:
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Sep 26, 2013

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct


The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct
2013 NY Slip Op 05942, Appellate Division, Third Department

A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.

The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*

Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.

Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.

The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.

As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.

* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_05942.htm
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Sep 25, 2013

The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual


The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual
OATH Index No. 2041/13

The New York City Human Resources Administration initiated disciplinary action against an employee alleging the employee was AWOL based on the individual's long-term absence from work. The employee’s absence from work resulted from the individual’s incarceration and conviction of a crime.

The employee resigned soon after the disciplinary hearing was held and asked that the OATH Administrative Law Judge to refrain from issuing a decision.*

ALJ Joan R. Salzman ruled that the employer has the right to request a determination on the merits of the charges “for the legitimate purpose of assessing future public employment under Civil Service Law.”

Judge Salzman found the employee guilty of misconduct but made no penalty recommendation in consideration of the individual’s resignation. 

* 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.. A number of local civil service commissions have adopted a similar rule applicable to employees appointed by public entities subject to its jurisdiction.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-2041.pdf
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Sep 24, 2013

Benefits available to State employees and employees of a political subdivision of the State ordered to military service


Benefits available to State employees and employees of a political subdivision of the State ordered to military service
§§242 and 243 of New York State’s Military Law

Ronald Miller, Esq., in an item posted in CCH’s Blog Employment Law Daily,* reports that a “city was denied summary judgment against an employee’s claim that it refused to reemploy her as a building custodian following her return from active duty with the National Guard (Sanderson v City of Farmington Hills, EDMich, September 17, 2013).”

Mr. Miller commented that: “A federal district court in Michigan rejected the city’s contention that the employee’s failure to report to work as requested, or to submit an application for reemployment, precluded her claim. Moreover, the court determined that the requirement of 38 USC Sec. 4311, that an employee show discrimination based on military service, was not triggered because she was never reemployed.”

§§242 and 243 of New York State’s Military Law grants certain rights to public officers and employees ordered to military duty.

§242 sets out the rights of public officers and employees absent on military duty as members of the organized militia or of reserve forces or reserve components of the armed forces of the United States. §243 addresses the rights of a public officer or employee while on ordered military service and his or her rights to reinstatement following his or her release from such ordered military service.

Essentially every public officer or employee is entitled to absent himself or herself for ordered military service** and is deemed to have a leave of absence from his or her duties or service as such public officer or employee while engaged in the performance of ordered military duty and while going to and returning from such duty.

As to reinstatement to his or her position, §243.2, in pertinent part, provides “Such public employee shall be reinstated to his position as soon as possible provided he [or she] makes application for such reinstatement within ninety days after the termination of his [or her] military duty, or at any time during his [or her] terminal leave. Thereafter, he [or she] may be so reinstated, at any time after such ninety-day period and within one year after the termination of his [or her] military duty, in the discretion of the appointing officer or body.”

§§242 and 243 also provide other benefits to officers and employees absent on military leave such as "pay for military duty;" the ability to elect to contribute to his or her pension or retirement system while on military duty; protecting his or her status on an eligible list, crediting military service towards completing probationary service requirements and rights related to placement on special military lists and military "reemployment lists" under certain circumstances.
* The full text of Mr. Miller’s item is posted on the Internet at:

** N.B. §243.1(b) requires police officers to obtain the prior consent of their public employer before absenting themselves from their position for military service in order to be eligible for certain benefits.
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Sep 23, 2013

CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim


CPLR Article 78 expresses a preference that state courts, rather than federal courts, decide a federal litigant’s “state-law statutory-construction” claim
Carver v. Nassau County Interim Finance, CA2, Docket Nos. 13-0801, 13-0840

James Carver, Gary Learned, and Thomas R. Willdigg, as presidents of the their respective employee organizations representing certain employees in Nassau County police collective bargaining units [Police Union], challenged a wage freeze imposed by the Nassau County Interim Finance Authority [NIFA].* Police Union alleged that the freeze violated the Contracts Clause, Article I, Section 10 of the Constitution of the United States and NIFA’s power to impose a wage freeze pursuant to §3669 of the New York Public Authorities Law had expired.

The district court granted summary judgment to Police Union based solely on the statutory Interpretation of its State law claim. NIFA appealed and the Circuit Court of Appeals held that the district court, in granting summary judgment to Police Union on its state law claim without reaching the constitutional question, abused its discretion in exercising pendent jurisdiction over the statutory construction claim. It vacated the lower court’s ruling and remanded the matter with instructions to the district court to dismiss Police Union’s statutory construction claim..

On January 26, 2011, NIFA imposed a control period. After Nassau County unsuccessfully challenged the imposition of the control period in an Article 78 proceeding, County of Nassau v. Nassau County Interim Finance Authority, 33 Misc. 3d 227, NIFA passed two resolutions freezing wages for all County employees on March 24, 2011.

The wage freeze forced the County to breach the terms of the collective bargaining agreements it had entered into with the various County police unions. On April 1, 2011, Police Union commenced this action in federal court, alleging that the wage freeze violated the Contracts Clause, Article I, Section 10 of the Constitution. Police Union later amended its complaint to add a second claim that NIFA lacked the authority under state law to order a wage freeze after the conclusion of the interim finance period.

The district court did not reach Police Union’s “Constitutional claim,” holding that the statutory question was “most appropriate for summary disposition.”

The Circuit Court, noting that district courts have supplemental jurisdiction over pendent state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution,” 28 U.S.C. §1367(a) said that it was reviewing the district court’s decision to assert supplemental jurisdiction over a state law claim under an abuse-of-discretion standard.

As this case “… concededly presents an unresolved question of state law and is also one in which there are exceptional circumstances which provide compelling reasons for declining jurisdiction,” the Circuit Court held that “the construction of the provision of the NIFA Act at issue raises an unresolved issue of state law – the interpretation of a poorly drawn statute – that should be resolved by the New York state courts because the manner in which the statute is construed implicates significant state interests.”

The court explained that as it had previously ruled, “[w]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts,” citing Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998).

Although the defendants argued that jurisdiction over this pendent state law claim should be denied because of the special statutory procedure that New York law – CPLR Article 78 – provides for adjudicating claims that a body or officer has acted in a manner not authorized by state law the Circuit Court said that it “need not decide, however, whether Article 78 can, on its own, deprive a federal court of jurisdiction over claims brought under that provision, as some district court cases have held….” For present purposes, said the court, it is sufficient to recognize that Article 78 reflects a state preference for a state mode of procedure that “is designed to facilitate a summary disposition of the issues presented . . . and has been described as a fast and cheap way to implement a right that is as plenary as an action, culminating in a judgment, but is brought on with the ease, speed and inexpensiveness of a mere motion.”

The Circuit Court said that on remand “the district court should dismiss the state-law claim, but retain jurisdiction over [Police Union’s] federal constitutional claim. Should Police Union decide to pursue its state-law statutory-construction or other related claims in state court, the district court may decide, within its discretion, to stay the federal action until the state-court litigation has completed because the state courts’ resolution of the state claim may obviate the need to resolve the federal constitutional question.

* The Nassau Interim Finance Authority is a public benefit corporation created by the New York State Legislature in June 2000 in response to the growing financial crisis facing Nassau County.

The decision is posted on the Internet at:

The Commissioner of Education does not provide an “advisory opinion” in adjudicating an appeal filed pursuant §310 of the Education Law


The Commissioner of Education does not provide an “advisory opinion” in adjudicating an appeal filed pursuant §310 of the Education Law
Decisions of the Commissioner of Education, Decision No. 16,551

In this appeal the educator alleged that the school district had assigned her to a tenure area without her consent.

Citing Appeal of Vuoto, 44 Ed Dept Rep 251, [Decision No. 15,163], the Commissioner dismissed the educator's complaint explaining that essentially the educator sought an advisory opinion concerning her seniority status and that such “relief that is unavailable in an Education Law §310 appeal.”

However, said the Commissioner, his dismissal of the educator’s appeal was “without prejudice to any future application for similar relief should [the educator] hereafter become actually aggrieved within the purview of Education Law §310.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume53/documents/d16551.pdf
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Sep 22, 2013

Summaries of selected reports and information published by New York State's Comptroller Thomas P. DiNapoli


Summaries of selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
New York State Comptroller Thomas P. DiNapoli issued the following audit reports during the week ending September 21, 2013. Click on text highlighted in bold to access the full report.


An initial issued in September 2010, examined whether selected home health care providers properly used Medicaid funds for the recruitment, training and retention (RTR) of direct care staff and whether DOH was effectively overseeing this funding. Auditors were unable to fully account for providers' use of RTR funds because the funds were comingled with other funds. In a follow-up report, auditors found DOH had not implemented the four recommendations made in the initial report and further actions are still needed.



The New York State Health Insurance Program provides health insurance coverage to active and retired state, participating local government and school district employees and their dependents. The Empire Plan is the primary health benefits plan for the Program. The state Department of Civil Service contracts with United HealthCare to process medical claims for services provided to Empire Plan members. In an initial audit, auditors estimated United overpaid as much as $6,487,932 to providers who billed at a higher paying code than the service actually merited. In a follow-up, auditors found United completed a major project to review claim payments for evaluation and management services. As a result, United recovered more than $1 million in overpayments.



An initial audit report issued in September 2010 examined whether DOH effectively recovered accounts receivable when Medicaid overpaid providers. For the period Jan. 1, 2006 through Feb. 18, 2010, auditors found DOH needed to act more effectively to collect about $37 million of accounts receivable. Auditors also found DOH needed to act more promptly to recover amounts repaid to the federal government for receivables that eventually became uncollectible and, therefore, were written-off. In a follow-up, auditors found DOH and the Office of the Medicaid Inspector General have made progress in correcting the problems identified in the initial report. All four prior audit recommendations have been partially implemented.



The New York City Department of Consumer Affairs issues licenses and permits for certain businesses operating and collects associated fees. For the fiscal year ended June 30, 2013 the department collected $8.1 million in license fees, $10 million in franchise fees, and fines totaling $14.3 million. Auditors found that the methods used to identify unlicensed businesses were not sufficient, and that some businesses continued operating many years after their licenses expired. The department could likely generate additional revenue if it used better methods to identify businesses that operate without a required license. In a follow-up, auditors found department officials have made significant progress in addressing the matters identified in the initial report as all five prior audit recommendations have been implemented.


 
The New York City Health and Hospitals Corporation operates 11 acute care hospitals, four skilled nursing facilities, six large diagnostic and treatment centers, and more than 70 community health or school-based clinics. HHC provides non-emergency transportation to patients who require it for healthcare-related services. In an initial report, auditors identified a number of weaknesses in the system, including a lack of documentation for physician authorization of patient transportation and instances where trips were not billed at the correct rates. Auditors also found that three of the 14 drivers working for one of the providers had criminal histories. In a follow-up, auditors found HHC officials have made progress in addressing the problems identified in the initial report. Of the seven prior audit recommendations, six recommendations have been implemented.



At the time of the audit, the university had 36 electronic devices ready for disposal through the Office of General Services’ surplus unit. Seven of the computer hard drives still contained data, even though University at Albany had provided OGS with certifications indicating all information had been removed.
Two of these hard drives contained personal, private or sensitive information including social security numbers, dates of birth, home addresses and financial information. One of these two hard drives also contained potentially inappropriate photographs that could be considered offensive for the work place.
The other five hard drives also contained retrievable data that included resumes, personal vacation photos, research information and student term papers. One of the seven hard drives was taken from a laptop computer, which should have required more stringent security controls and been encrypted.



DOCCS employed an average of about 250 inmates and 50 State employees to operate its farming operations. As part of the 2009-2010 state budget process, DOCCS was directed to close these farm operations to generate cost savings. While auditors could not precisely determine the nature and extent of all the equipment and livestock on hand at the time of the farm closures in 2009, they did identify more than 3,300 farm equipment items and almost 300 head of cattle that had been publicly sold or transferred to other state agencies. These transactions generated almost $570,000 of one-time revenues. DOCCS has also leased a significant portion of its former farm land via public bidding and is earning approximately $125,000 annually from this effort.


 
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors selected seven Binghamton employees for audit with travel expenditures totaling $839,204, but were only able to audit the expenses incurred for these seven employees from June 14, 2009 and March 31, 2011 totaling $548,262 because the university, as allowed by state record retention policies, had purged documentation prior to June 14, 2009. Most of the travel expenses examined were appropriate. However, university officials failed to ensure that lodging expenses were within allowable rates in 24 instances allowing a total of $2,258 to be spent in excess of federal per diem lodging rates. University officials also allowed employees to pay back $36,880 of unused travel advances in installments long after the ten day accounting and reconciliation requirement.



Auditors examined the travel costs of one employee whose travel costs totaled $115,797. They found that while the travel expenses for the employee were supported, they need to be further reviewed to determine whether Internal Revenue Service "tax home" rules may apply and may result in taxable income.  In addition, Judicial Travel Rules were sometimes not complied with.



The village is incurring higher costs than necessary for goods and services. Auditors found purchases were not formally bid or awarded by the village board, quotes were not always obtained, and village officials did not determine if they received the correct state or county contract pricing.



The town supervisor did not maintain accurate and complete accounting records to properly document assets, liabilities, fund balances, results of operations, or prepare accurate reports that would allow the board to adequately monitor the town’s financial operations. As a result, town officials lacked assurance that fund balance was available to fund budgeted appropriations.



The town board repeatedly adopted budgets with inaccurate revenue and expenditure estimates, which led to the accumulation of significant surplus funds. In addition, the town’s procurement policy does not require the solicitation of written proposals or quotes for the acquisition of professional services. In 2011 and 2012 the town paid $314,781 to seven professional service providers without soliciting competition.



While the district does have adequate financial policies, it does not have certain financial procedures in place. For example, the district treasurer submits a budget-to-actual financial report to the board only at the end of the fiscal year and has not filed the required annual financial report with the Office of State Comptroller since the 2008. In addition, the board contracts with an independent auditor to perform an annual audit of the treasurer’s records; however, the last completed audit was performed in 2010.



The village board has consistently adopted budgets with unrealistic estimates of revenues, expenditures and the amount of fund balance to be used to fund operations. From 2007 through 2012, the board appropriated $3.73 million in fund balance for the general and sewer funds, but did not use $2.9 million of this amount. Consequently, the village accumulated $833,139 of unexpended surplus funds in the general fund and $522,373 in the sewer fund.


Town of White Creek – Board Oversight of Financial Activities (Washington County)
 
The town supervisor did not adequately oversee and monitor the work of the budget officer who served as the town’s bookkeeper and maintained the town’s accounting records. Due to the poor condition of the town’s financial records and reports, the town board was unable to determine the town’s true financial condition or effectively monitor financial operations.
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