Audits of New York state and local government agencies released during the week ending September 10, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending September 10, 2020. Click on the text highlighted in color to access the complete report. 

State Departments and Agencies:

Department of Health (DOH): Improper Medicaid Payments for Recipients Diagnosed With Severe Malnutrition (Follow-Up) (2020-F-9) An audit issued in 2019 identified $416,237 in Medicaid overpayments on inpatient claims that contained a severe malnutrition diagnosis that the medical records did not appear to support. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report; however, additional action is needed. In particular, the Office of the Medicaid Inspector General had not taken action to review the Medicaid overpayments and make any recoveries. 

Office of Mental Health (OMH): Oversight of Provider Consolidated Fiscal Reports – Independent Living Inc. (2019-S-60) OMH takes certain steps to ensure costs and other information reported by providers on their fiscal reports is accurate, documented, properly calculated and allowable. These steps include performing desk reviews that incorporate computer-assisted auditing techniques to identify areas for further review by an analyst. However, OMH generally does not perform detailed audits or field reviews of providers’ fiscal report information. There is a risk that conclusions drawn from any inaccurate data may not be as useful as they otherwise could be. 

State University of New York at Stony Brook: Select Financial Management Practices at the Office of Transportation and Parking Operations (2018-S-11) Auditors identified control deficiencies over certain accounts, expenditures, and collections of revenues that jeopardize its ability to support operations. Three of the transportation and parking accounts have operated with a cash deficit balance for at least four consecutive years and $429,420 of the approximately $3.4 million in expenditures reviewed were not properly supported. Auditors also identified control deficiencies in the revenue collection process for the administration parking garage and metered parking accounts. 

Metropolitan Transportation Authority - New York City Transit: Subway Wait Assessment  (2019-S-62) Subway wait assessment is calculated at time points, which should consist of between 25 and 50 percent of all stops along each route. Auditors found that time points only cover between 11 and 30 percent of all stops on each route per direction. Therefore, the majority of the service provided is not captured in the wait calculation. The points did not include key subway stations such as Penn Station, 59th Street-Columbus Circle, and 14th Street. 

New York City Department of Social Services: Controls Over Capital Improvements at City-Owned Homeless Shelters (2018-N-3) The Department of Homeless Services lacks the necessary controls over city-owned homeless shelter capital improvement projects to ensure urgently needed projects are properly prioritized and completed timely and within budget. 

Office of Victim Services (OVS): Controls Over Selected Expenditures (Follow-Up) (2020-F-16) An audit issued in September 2018 found that OVS’ controls generally ensured that its expenditures for crime victim compensation claims, grants, and forensic rape examination (FRE) claims were made only to eligible victims and providers for eligible victim services. However, auditors identified minor discrepancies in OVS’ verification of FRE provider licenses and recommended they implement a risk-based approach to verify and validate provider licenses on submitted claims. In a follow-up, auditors found that OVS has implemented the recommendation from the initial report. 

School districts:

Dryden Central School District – Cash Management (Tompkins County) District officials did not follow their investment policy. As a result, officials did not maximize interest earnings for the district. Auditors determined officials did not develop and manage a comprehensive investment program. Auditors also found officials did not seek competitive interest rates. Officials earned interest totaling $246,431 during the audit period, however, they could have earned an additional $614,606 if they used other available investment options. 

Niagara Falls City School District – Out-of-District Tuition Billing (Niagara County) Tuition billings for district students enrolled in out-of-district programs were not always accurately calculated or properly supported. District officials overpaid two charter schools for 36 special education students by approximately $71,000 and may have overpaid for three students in foster care and three students in McKinney-Vento status by approximately $44,000. District officials were unable to properly monitor out-of-district tuition billings or ensure the billed amounts were accurate and proper because they did not obtain or retain adequate support documentation.


Municipal jurisdictions

County of Greene – Information Technology The county legislators did not monitor compliance with the county’s acceptable use policy, and did not adopt Information Technology (IT) policies. County legislators did not adopt a breach notification policy, a disaster recovery plan and a personal, private and sensitive information (PPSI) policy. In addition, county officials did not provide cyber security training to IT personnel and county employees. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials. 

Town of Oyster Bay – Financial Condition Management (Nassau County) The board and town officials need to continue to improve their management and oversight of the town’s financial condition. Three of the town’s funds have carried repeated fund balance deficits, while two other funds have accumulated unrestricted fund balances equal to at least 45 percent of the next year’s budgets and no reserve funds were established. In addition, the town has nearly $605 million in outstanding debt, which is significantly more than neighboring towns and requires 37 percent of the revenue of the funds servicing this debt. The also board did not develop and adopt several comprehensive written plans and policies, including a multiyear financial plan, fund balance policy and reserve policy.

 

Former municipal official found guilt of " Corrupting the Government in the First Degree"

On September 10, 2020, New York State Attorney General Letitia James and New York State Comptroller Thomas P. DiNapoli announced the sentencing of the former City of Mount Vernon Corporation Counsel Lawrence Porcari for abusing his position as a public official to engage in a scheme that defrauded the Mount Vernon Board of Water Supply of more than $300,000 to pay the personal legal expenses of the former Mount Vernon Mayor Richard Thomas and a public relations firm.* 

The jury found Mr. Porcari guilty of Corrupting the Government in the First Degree, a Class B felony; Grand Larceny in the Second Degree as a Crime of Public Corruption, a Class B felony; Defrauding the Government, a Class E felony; and other offenses.

Attorney General James said that “Any public official who lies, cheats, or defrauds New Yorkers must be held accountable to the fullest extent of the law ... public servants have a responsibility to serve with transparency, integrity, and respect for the state and all of its people. I thank Comptroller Tom DiNapoli for his partnership and continued unwavering commitment to rooting out corruption in all its forms.”

A press release issued by  Kate Gurnett of the Office of the State Comptroller notes that "Since 2011, the Attorney General and State Comptroller offices have worked together to fight corruption through their Joint Task Force on Public Integrity. They have brought charges against dozens of individuals implicated in public corruption schemes around the state — resulting in the return of more than $11 million in restitution to taxpayers through these convictions."

The Comptroller’s investigation was handled by Comptroller DiNapoli’s Division of Investigations and was handled by Investigator Angel LaPorte, under the supervision of Deputy Chief Investigator John McManus and Supervising Investigator Sylvia Rivera, and the overall supervision of Investigation Division Chief Oliver Pu-Folkes. Trial presentation assistance was provided by IT Specialist Matthew Rosenberg. Assisting in the investigation and providing forensic auditing analysis was Forensic Auditor Andre Hartley, under the supervision of Deputy Chief Auditor Sandy Bizzarro. Also assisting for the Attorney General was Legal Support Analyst Rebecca Saber.  

The case was prosecuted by Assistant Attorney General Meagan Powers and Special Counsel Brian Weinberg of the Attorney General’s Public Integrity Bureau, under the supervision of Bureau Chief Travis Hill. The Criminal Justice Division is led by Chief Deputy Attorney General Jose Maldonado and supervised by First Deputy Attorney General Jennifer Levy. 

* Mr.Porcari was sentenced to 1-3 years in prison. However, Judge David Zuckerman has temporarily stayed the execution of Porcari’s sentence. A status hearing is scheduled for November 18, 2020.

####

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

 

Filing a demand for arbitration of a dispute held controlled by the terms and conditions set out in the relevant collective bargaining agreement

One of the issues presented in this appeal concerned a demand for arbitration by the aggrieved party [Petitioner] in response to a claim seeking the payment of a $1,111,124 "withdrawal liability" following Petitioner's withdrawal from a pension fund.

The relevant collective bargaining agreement provided that any arbitration would be filed with and therefore governed by the American Arbitration Association's [AAA] rules, which rules, as relevant here, required Petitioner to file a timely demand for arbitration and to submit the required AAA filing fee* in order to initiate the arbitration process.

Petitioner contended that the district court erred in granting summary judgment against it, arguing that:

[1] It had made a timely demanded for arbitration of the issue; and

[2] Any failure to make a timely demand was excused because the arbitration rules of the AAA "imposed preconditions to arbitration that were not fair or equitable."

Rejecting the claims advanced by the Petitioner, the Circuit Court concluded that the Petitioner was bound by the AAA's rules, which required Petitioner to initiate arbitration with the AAA by filing a timely formal demand for arbitration and submitting the required filing fee, and found that the Petitioner had not done so.

Accordingly, Circuit Court of Appeals affirm the federal district court’s judgment.

* In this instance the AAA filing fee was $8,200.

'The decision is posted on the Internet at: https://law.justia.com/cases/federal/appellate-courts/ca2/19-1093/19-1093-2020-09-03.html

New York State launches a "Dashboard" providing real-time tracking of COVID-19 infections and testing operations of every New York State school and school district

On September 8, 2020, New York State's Governor Andrew M. Cuomo announced the launching of New York State's "COVID-19 Report Card",* an Internet Web Site which will track real-time COVID-19 infections and testing operations of every New York school and school district.** 

The Governor issued an Executive Order directing schools, local health departments, labs and all testing sites properly collect and report COVID-19 testing data for students and staff at each school in New York State, ensuring this information can be accurately presented on the online COVID-19 Report Card.

COVID-19 report card data includes: positive cases by date of students and staff; number of students and staff on-site; percentage of on-site positive cases; number of tests administered by school, test type, lab used and lag time; date of last submission and update.

As schools reopen and districts, local health departments, and labs will begin reporting this data to the NYS Dept. of Health, the COVID-19 Report Card, which is  designed to provide parents, teachers, students with comprehensive data updated on a daily basis and includes such data as:

Positive infections by date of students and staff by school and school district;

Whether a school or a school district, and its student and staff, are in a remote, in-person, or hybrid learning mode;

The number of students and staff on-site;

The percentage of on-site students and staff who test positive;

The number of COVID-19 tests administered by the school, test type, lab used and lag time; and

The date of the last submission or update.

Visitors to the website simply type in their home address to identify their school district, select their specific school, and all reported positives, a breakdown of testing and results for students and teachers and the current enrollment will be displayed.  The "Dashboard" will feature 7-day trend charts so visitors can track results over time. 

* New York school districts will be providing the Department of Health with information on the number of people who have tested positive for COVID-19 and other COVID-19 related data daily. Once the reporting starts, the COVID-19 Report Card will be activated and relevant material posted on the Internet at https://schoolcovidreportcard.health.ny.gov/.

** See, also, Chapter 168 of the Law of 2020, "An act to amend the labor law, in relation to requiring public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease; and to amend the education law, in relation to certain protocols for responding to a declared public health emergency involving a communicable disease." The act requires all public employers, i.e., the State and political subdivisions of the State including school districts, to create plans to adequately protect workers in the event of another state disaster emergency involving a communicable disease.  Plans must be submitted to unions and labor management committees within 150 days, and plans need to be finalized on or before April 1, 2021.

New York State Governor Andrew M. Cuomo signs law to protect public officers and employees in New York State in the event of another COVID-19 type of health emergency.

Governor Andrew M. Cuomo announced that he signed a new law* that will protect State officers, employees and officers and employees of political subdivisions of the State and school district personnel  in the event of another COVID-19 type of health emergency.

Those entities are to provide a list of positions considered essential, descriptions of how employees would stagger to reduce overcrowding, and protocols for personal protective equipment [PPE], as well as noting what is required when an employee is exposed to the disease. 

Plans must be submitted to employee organizations and labor management committees within 150 days, and plans must be finalized no later than April 1, 2021.

Operation plans must include:

List and description of positions considered essential;

Descriptions of protocols to follow to enable all non-essential employees to work remotely;

Description of how employers would stagger work shifts to reduce overcrowding

Protocols for PPE;

Protocol for when an employee is exposed to disease;

Protocol for documenting hours and work locations for essential workers;

Protocol for working with essential employees' localities for identifying emergency housing if needed; and

Any other requirement determined by the New York State Department of Health, such as testing and contact tracing.

In addition, the New York State Department of Labor is to provide an online portal for public employees to report violations of health and safety rules for communicable diseases, including COVID-19.

* Chapter 168 of the Laws of 2020. The act requires public employers in New York State to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease which shall include identification of essential personnel, needed personal protective equipment, staggering work shifts and providing necessary technology for telecommuting.

 

The failure to serve a timely notice of claim upon a municipality or public corporation may be excused under certain circumstances

General Municipal Law §50-e requires that a "notice of claim" be served upon the municipality or public corporation within 90 days of the date that the claim arose as a condition precedent to commencing an action sounding in tort against a municipality or public corporation,.* 

The failure to serve a timely the notice of claim was the issue when a petitioner [State Trooper] sought for leave to serve a late notice of claim against the County and the County Sheriff [jointly "the County"] in order to bring a lawsuit against the County for State Trooper's injury she allegedly suffered while she was responding to a 911 call and her state police motor vehicle collided with a motor vehicle operated by a Deputy Sheriff employed by the County.

Supreme Court granted State Trooper's petition seeking to serve the late notice and the County appealed.

The Appellate Division, holding that Supreme Court "providently exercised its discretion" in granting State Trooper's petition to serve a late notice of claim on the County, explained:

1. In determining whether to grant leave to serve an untimely notice of claim, the court, in exercising its discretion, must consider all relevant circumstances, including whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipality or public corporation in its ability to defend against the action;

2. "The presence or absence of any one of these factors is not necessarily determinative" and "the absence of a reasonable excuse is not necessarily fatal" to the courts granting the petition; and

3. Whether the municipality or public corporation acquired timely actual notice of the essential facts constituting the claim should be accorded great weight.

In this instance the Appellate Division, citing Kuterman v City of New York, 121 AD3d 646, concluded that the County acquired timely, actual knowledge of the essential facts constituting the claim, opining that "[a]lthough a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality. Where, however, the municipality's employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, "the municipality can be found to have actual notice."

The police report, said the court, indicated that the County committed a potentially actionable wrong "when its employee allegedly failed to yield the right of way to the injured [State Trooper's] vehicle even though the injured [State Trooper's] vehicle's lights and sirens were activated" and the accident report indicated that the State Trooper "was allegedly injured in the accident."

Further, noted the Appellate Division, in responding to a Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the County Sheriff's report regarding the accident. Accordingly, the court concluded that "the County [had] acquired timely actual knowledge of the essential facts constituting the [State Trooper's] claim."

Finding that the County had acquired timely knowledge of the essential facts constituting the State Trooper's claim, the Appellate Division held that the State Trooper met her "initial burden of showing that the County would not be prejudiced by the late notice of claim" and the County "failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits."

Addressing the issue of State Trooper's delay in seeking to file a late notice of claim, the Appellate Division ruled that as the County had actual knowledge of the essential facts underlying the claim and as no substantial prejudice to the County was demonstrated, "[State Trooper's] failure to provide a reasonable excuse for the delay in filing [her] notice of claim did not serve as a bar to [Supreme Court's] granting leave to serve a late notice of claim.

* See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04840.htm

 

 

ADA, FMLA, and the COVID-19 pandemic: How do they all come together?

Join Wolters Kluwer Legal Analyst Pamela Wolf for a one-hour roundtable discussion with a top-notch panel of experts who will help sort out employee leave issues, how the ADA and the FMLA intersect, and the impact of the FFCRA and the COVID-19 pandemic on these leave laws.

Topics of discussion will include:

Best practices

Understanding how the ADA and FMLA intersect

How COVID-19 impacts leave obligations

“Real life” workplace scenarios

Date: 9/23/2020 - Time: 1:00-2:00 PM EDT  

Live attendance is eligible for 1 complimentary CLE credit

Click below to Register:

https://know.wolterskluwerlr.com/LP=2169?utm_campaign=2327_L%26E%20Webinar%2009%2F2020%20ADA%20FMLA%20COVID&utm_medium=email&utm_source=Eloqua&elqTrackId=7046B34E6262B14525C89C3BE5109DCA&elq=e1b3c90aee86431780f7191a03fca717&elqaid=26516&elqat=1&elqCampaignId=11712

Failing to comply with statutory requirements for filing a complaint and, or, notifying the correct party of the alleged act or omission is a fatal procedural defect

Seeking reinstatement and back pay following his dismissal from his position, Petitioner [Plaintiff] brought a CPLR Article 78 action asking Supreme Court to review the determination of the Board of Education [Board] [a] terminating his employment and [b] its denial of payment for [1] certain days that he alleged he had worked, [2] his accrued sick leave credits, and [3] his unused health care benefits.

 

The Board, contending that Plaintiff had not complied with the notice of claim requirements set out in Education Law §3813(1), moved to dismiss Plaintiff's petition. The Supreme Court granted the Board's motion, in effect denying Plaintiff's petition for failure to comply §3813(1) and dismissed the proceeding. Plaintiff appealed the court's ruling.

 

The Appellate Division, affirming the lower court's ruling, explaining that §3813[1] provides that a written verified claim upon which such action or special proceeding is founded must be presented to the governing body of the school district "within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."

 

Citing Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, the Appellate Division, said a "failure to present a claim within the statutory time limitation or to notify the correct party, is a fatal defect."

 

While the Court of Appeals has held that where the school district has been sufficiently informed of the claim all that is required is substantial compliance with the statute regarding the degree of descriptive detail in a notice of claim, it has "nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled." Further, opined the Appellate Division, §3813[1]'s prerequisite is not satisfied by presenting such notice to any other individual or body and, moreover, "the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice."

 

Agreeing with the Supreme Court's finding that Plaintiff failed to present his purported notice of claim to the governing body, namely, the Board, the Appellate Division pointed out that Plaintiff's sending a letter setting out his claims to the School District's Superintendent did "not constitute service upon the Board."

 

The fact that the Board ultimately obtained actual knowledge of the letter from the Superintendent's office did not satisfy the mandates set out in §3813[1] and Plaintiff failed to submit an affidavit of service or any other evidence to demonstrate that he had, in fact, served or presented his letter to the Board.

 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04839.htm

 

New York State registered voters concerned about risk or exposure to COVID-19 may request an absentee ballot for the November 3, 2020 election

New York State's Governor Andrew M. Cuomo issued an Executive Order permitting any New York State registered voter concerned about risk or exposure to COVID-19 to request an absentee ballot.

 

On September 1, 2020, Governor Andrew M. Cuomo announced the launch of New York's Absentee Ballot Portal where voters can directly request an absentee ballot for the November 3, 2020 election. The Governor's Executive Order to permits any voter concerned about risk or exposure to COVID during the ongoing pandemic to request an absentee ballot.   

The Governor also issued an Executive Order to bolster and support New Yorkers' right to vote. The order requires county boards of elections to take concrete steps to inform voters of upcoming deadlines, be prepared for upcoming elections and help ensure absentee ballots can be used in all elections.

All Registered New York State Voters Can Request an Absentee Ballot Here

September 2020 AELE case notes, publications, and seminar announcements

The Americans for Effective Law Enforcement [AELE] has announce the following:

Public Safety Discipline and Internal Investigations Seminar---Attend Virtually On Demand. 

A 3½ day updated seminar on "Public Safety Discipline and Internal Investigations" begins September 28, 2020 and ends at Noon on October 1, 2020. This is an ON-DEMAND presentation, enabling those registered to attend, review, and complete "the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters." For registration and additional information click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

September Law Enforcement Liability Reporter: 

This issue has cases on assault and battery: physical, electronic control weapons: dart mode, failure to disclose evidence, false arrest/imprisonment: no warrant, false arrest/imprisonment: warrant, firearms related: accidental use, firearms related: intentional use, immigrants and immigration issues, and search and seizure: body cavity. http://www.aele.org/law/2020all09/LR2020SEP.pdf

September Fire, Police & Corrections Personnel Reporter: 

This issue has cases on age discrimination, collective bargaining, disciplinary interviews & compelled reports, disciplinary punishment, handicap/abilities discrimination: reasonable accommodation, pensions, religious discrimination, retaliatory personnel action, and wrongful discharge.  http://www.aele.org/law/2020all09/FP2020SEP.pdf

September Jail and Prisoner Law Bulletin: 

This issue has cases on First Amendment, gang activity, inmate funds, Prison Litigation Reform Act: exhaustion of remedies, Prison Litigation Reform Act: “three strikes” rule, prisoner assault: by inmates, prisoner discipline, prisoner suicide, and religion. http://www.aele.org/law/2020all09/JB2020SEP.pdf

New York State's Governor directs the State's Division Of Human Rights to investigate reports of a fire truck in a parade displaying a Confederate flag

Learning of a fire truck in a parade displayed a Confederate flag, New York State Governor Andrew M. Cuomo said "I'm appalled by reports that a Confederate flag was flown on a Brookhaven Fire Department truck at a Patchogue parade. We have zero tolerance for symbols of racism or division, and I have directed the New York State Division of Human Rights to investigate the incident immediately."

On August 31, 2020, a newspaper, Newsday, published an article concerning the incident. The article is posted on the Internet at:

https://www.newsday.com/long-island/suffolk/confederate-flag-brookhaven-patchogue-firetruck-1.48765917.

The Arizona State Supreme Court adopts The New Civil Liberties Alliance's proposed changes to court rules

The New Civil Liberties Alliance [NCLA], a nonpartisan, nonprofit civil rights group, announced that the Arizona Supreme Court "adopted verbatim" an NCLA-drafted amendment to the court's Judicial Review of Administrative Decisions Rules making it easier for litigants to obtain Superior Court stays of administrative decisions.

The new rule goes into effect starting January 1, 2021 and affects all appeals from the final decisions of all Arizona state agencies that are required to go to the  Arizona Superior Court.

The text of the amendment is posted on the Internet at https://nclalegal.org/wp-content/uploads/2020/08/Order-R200008.pdf.

For information about NCLA click on https://nclalegal.org/about/.