Municipal and school district audits issued during the week ending February 19, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 19, 2021.

Click on the text highlighted in color to access the complete audit report

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government and school district audits have been issued.

 

Village of Red Hook – Information Technology (Dutchess County) Officials did not adequately secure and protect the village’s information technology (IT) systems against unauthorized use, access and loss. The board also did not adopt required or sufficient IT policies, provide users with IT security awareness training, or develop a disaster recovery plan. Officials were unaware that employees were accessing websites for nonbusiness purposes because they did not routinely monitor employee Internet use. The IT consultant’s responsibilities were not defined and officials did not have a formal contract with the consultant. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Village of Pittsford – Audit Follow-Up Letter (Monroe County) In a previous report issued in July 21, 2017, auditors identified problems with the board’s oversight over the village’s financial operations. When auditors revisited the village in August 2020 to review progress, they found limited corrective actions had occurred. Of the seven audit recommendations, one recommendation was fully implemented, four recommendations were partially implemented and two recommendations were not implemented.

 SCHOOL DISTRICT AUDITS

Honeoye Falls Lima Central School District – Access Controls (Livingston County, Monroe County and Ontario County)   District officials did not ensure user access controls were appropriate and secure. Officials did not adopt key information technology (IT) security policies, resulting in increased risk that data, hardware and software may be lost or damaged by inappropriate use or access. Officials also did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled.

In addition, sensitive IT control weaknesses were communicated confidentially to officials. Due to the COVID-19 pandemic, with the district‘s increased reliance on a remote learning environment and administrative operations, protecting IT assets is critical.

 

The authority of an administrative agency's to adopt regulations to implement legislation

Regulations of the Office of Victim Services [OVS], as amended in January 2016, limited attorneys' fee awards for crime victim claimants to the costs incurred on applications for administrative reconsideration or appeal and on judicial review.* The question presented to the Court of Appeals [Court] in this appeal was whether these regulations, as amended, were in conflict with the authorizing statute** or were otherwise irrational.  

Citing Consolidated Edison Co. of New York v Department of Environmental Conservation, 71 NY2d 186, the Court said that administrative agencies have "all the powers expressly delegated to [them] by the Legislature" and are "permitted to adopt regulations that go beyond the text of [their] enabling legislation, so long as those regulations are consistent with the statutory language and underlying purpose." 

Although "an administrative agency may not, in the exercise of [its] rule-making authority engage in broad-based public policy determinations ... [t]he cornerstone of administrative law is ... the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation."

Further, the Court said it has long recognized that "where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

The standard for judicial review of those regulatory details "'is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious." Where the legislature has left to an agency's discretion the determination of "what specific standards and procedures are most suitable to accomplish the legislative goals," the agency's rule making powers, "[i]f reasonably designed to further the regulatory scheme, ... cannot be disturbed by the courts unless the provision is arbitrary, illegal or runs afoul of the enabling legislation or constitutional limits ... regardless of [the court's] assessment of the 'wisdom' of the agency's approach."

The Court explained that the regulations as amended by OVS "are fully consistent with the governing statutory language and purpose," and thus are "within OVS's authority, and rational." Notwithstanding the Petitioners' argument and the dissent's reasoning to the contrary, the Court concluded that the statute, when read as a whole, grants OVS the authority to determine whether attorneys' fees are "reasonable."

Noting that "there may be other valid ways in which OVS could have defined 'reasonable' attorneys' fees," the definition in the amended regulations is rational and the application of those regulations to deny the Petitioners' fee applications "was not arbitrary and capricious."

Finding that the regulations as amended by OVS were consistent with the statutory language and OVS had "appl[ied] its special expertise in a particular field to interpret [that] statutory language," the Court held that OVS' determination was entitled to deference and, reversing the decision of the Appellate Division, reinstated the judgement of the Supreme Court.

* See 9 NYCRR §§525.3, 525.9

** Executive Law Article 22,

The text of the decision of the Court of Appeals is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2021/2021_01091.htm. 

Redaction of portions of a personnel record may be used to avoid an invasion of privacy in responding to a Freedom of Information Law request

In a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to the Freedom of Information Law [FOIL]* the Petitioner [Plaintiff] submitted a FOIL request for certain records to the New York City Fire Department [FDNY].

FDNY had responded to Plaintiff's FOIL request, providing certain records and withholding others. FDNY withheld the records identified in Plaintiff's FOIL request that it contended concerned requests for religious accommodations and the determinations made thereon, and accommodations from the FDNY dress requirements. FDNY had withheld those records on the grounds that:

 [1] Releasing such records would be an unwarranted invasion of personal privacy within the meaning of Public Officers Law §87(2)(b); and 

[2] The records withheld were inter-agency materials exempt by Public Officers Law §87(2)(g).

Supreme Court granted Plaintiff's petition in part and Plaintiff appealed, seeking the FDNY records that FDNY was permitted to withhold pursuant to the court's order.

The Appellate Division, indicating that FOIL provides the public with broad "access to the records of government" explained that "An agency must 'make available for public inspection and copying all records' unless it can claim a specific exemption to disclosure".**  

Further, said the court, the exemptions "are to be narrowly interpreted so that the public is granted maximum access to the records of government" as FOIL is based on a presumption of access to the records*** and the agency seeking to prevent disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access," citing Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562.

An agency may deny access to records or portions thereof "to prevent unwarranted invasions of personal privacy" and to this end Public Officers Law Public Officers Law §89[2][b][v] provides a nonexhaustive list of categories of information that would constitute an unwarranted invasion of personal privacy if disclosed, including "disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency." However, "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy "when identifying details are deleted."

In this action, ruled that the Appellate Division, FDNY failed to sustain its burden of proving that the personal privacy exemption applied to the records sought since it failed to establish that the identifying details could not be redacted so as to not constitute an unwarranted invasion of personal privacy. The court found the FDNY's conclusory assertions that the records fall within the exemption were insufficient to meet its burden of proving that the statutory exemption applies.  FDNY, opined the Appellate Division "should have produced the requested records, redacting whatever portions are necessary to safeguard the identities of the individuals who sought the accommodation, and leaving nonidentifying information intact.

The court also held that FDNY also failed to establish that the exemption for inter-agency materials applied, since the agency determinations sought were final on the accommodation requests and therefore not subject to the exemption.

Accordingly, the Appellate Division concluded that Supreme Court should have granted those branches of the petition which sought to compel disclosure of the documents sought in Plaintiff's FOIL requests that were the subject of this appeal.

* New York State Public Officers Law Article 6.

** See Matter of Data Tree, LLC v Romaine, 9 NY3d 454.

*** The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to disclosure permitted by FOIL. Examples of limiting the  release of public records by statute: Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.

Click HEREto access the text of the Appellate Division's decision.

 

Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Negotiating Unit, the Security Services Negotiating Unit, and the State's Agency Police Services Negotiating Unit

The New York State Department of Civil Service has published an "Attendance and Leave Bulletin" addressing Special Holiday Waiver Memoranda of Understanding for the Security Supervisors Unit (SSpU), the Security Services Unit (SSU), and the Agency Police Services Unit (APSU)

Text of Advisory Memorandum, Memorandum 2021-01 are posted at: https://www.cs.ny.gov/attendance_leave/AdvMemo21-01.cfm

If you wish to print Advisory Memorandum 2021-01 there is a version in PDF  format at:
https://www.cs.ny.gov/attendance_leave/am21-01.pdf

To view earlier Attendance and Leave bulletins issued by the Department, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

The job description of the applicant's position may have a significant role in evaluating a claim seeking accidental disability retirement benefits

The Court Officer [Petitioner] bring this CPLR Article 78 action was assigned to a criminal court. In the course of Petitioner's escorting an inmate who had become unruly during his sentencing hearing from the courtroom to a downstairs detention area, the inmate attempted to go back upstairs to the courtroom. Petitioner and two other court officers took action to restrain him. 

Petitioner was injured in the course of his efforts to restrain the inmate. He did not returned to work and applied for accidental disability retirement benefits, citing injuries to his neck, right arm, right wrist and both shoulders. Plaintiff's application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §605-a, which decision was subsequently sustained by a Hearing Officer. Ultimately the Comptroller adopted the Hearing Officer's findings and decision and Petitioner filed a CPLR Article 78 proceeding challenging the Comptroller's determination.

The job description for the title "court officer" contains a list of "typical duties" that includes providing security in the courtroom, guarding criminal defendants while they are in the courtroom and escorting them to and from the detention area, removing disruptive individuals from the courtroom and physically restraining unruly individuals. This job description for "court officer" proved to be a key element in the Appellate Division's review of a determination of the New York State Comptroller denying a court officer's [Petitioner] application for accidental disability retirement benefits.

Point out that the applicant for disability retirement benefits bore the burden of establishing that his disability arose from an accident within the meaning of the RSSL, the Appellate Division explained that the Comptroller's determination denying such benefits will be upheld if supported by substantial evidence.* 

Although the reports of the incident submitted to the responsible human resources administrator indicated that Petitioner was injured when he and other officers were restraining an inmate attempting to return to the courtroom, Petitioner testified that he was not attempting to restrain the inmate when he was injured but that, instead, he was "a passive victim of a sudden and unexpected assault."

Here the Comptroller had credited the earlier written accounts of the incident over Petitioner's contradictory testimony at the hearing. The Appellate Division said that it would defer to the Comptroller's "credibility assessment." 

Further, said the court, as there was substantial evidence supporting the Comptroller's finding that Petitioner's injury arose out of a risk that was foreseeable and inherent in the performance of his regular employment duties rather than an accident within the meaning of RSSL, "it will not be disturbed."

* For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." An injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental"

Click HERE to access the Appellate Division's decision.

 

 

Westchester sisters sentenced for stealing deceased mother's pension after pleading guilty to felony grand larceny

State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Miriam E. Rocah announced the sentencing of Annette Bigelow, 61, and Mary Nash, 59, who hid their mother’s death to pocket nearly $22,000 from the New York State and Local Employees Retirement System, which DiNapoli administers, from 2013 to 2015.

The two daughters pleaded guilty to felony grand larceny in September, 2020. They were sentenced to a three-year conditional discharge and ordered to pay full restitution of $22,000.

“Annette Bigelow and Mary Nash hid their mother’s death and tried to cheat the state retirement system,” DiNapoli said. “Now they have been brought to justice and will have to repay the $22,000 they stole. I thank Westchester County District Attorney Rocah’s office for aggressively pursuing this case.”

“Our office is committed to pursuing wrongdoing in Westchester, whether the victim is a person or an entity like the state retirement system,” Rocah said. “Theft like this from the pension system is ultimately stealing from New York taxpayers, and we are glad to work with the Office of the State Comptroller to help ensure that public funds are safeguarded.”

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State Comptroller DiNapoli is committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be submitted to the Comptroller by calling a toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a complaint to investigations@osc.ny.gov.

 

Municipal and school district audits issued during the week ending February 12, 2021

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued during the week ending February 11, 2021.

Click on the text highlighted in color to access the complete audit report

MUNICIPAL AUDITS

Islip Fire District – Capital Assets (Suffolk County)District officials did not maintain accurate and consistent capital asset records to ensure district assets were monitored and safeguarded. District inventory records did not list 45 of 50 selected assets totaling $36,809. In addition, district officials were unable to locate seven of 50 assets totaling $7,360. Scuba gear worth $119,523 was not adequately monitored or safeguarded.

Islip Fire District – Disbursements (Suffolk County)The board made an inappropriate payment for medical expenditures totaling $21,000. The board also approved payment for 118 purchases totaling $38,563 made on district credit cards that did not have sufficient supporting documentation. In addition, the board approved payment for 58 fuel credit card transactions, consisting of 1,181 gallons of fuel totaling $2,551 that were not adequately supported. They did not always enforce the adopted travel policy when approving $125,028 in travel expenditures. District officials made 107 purchases totaling $163,233 without an approved purchase order prior to the purchase being made.

Kingston Housing Authority – Board Oversight (Ulster County) The board did not provide adequate oversight of authority operations. As a result, budgets were not entered into the financial system and financial transactions were not properly captured. Adequate oversight of disbursements, bank transfers and bank reconciliations were not achieved. Auditors determined $6.43 million in disbursements and bank transfers were made without review or approval and $1,035 in management fees were incorrectly billed. Financial system access was also not properly administered.

Town of Duanesburg – Financial Records and Reports (Schenectady County) The supervisor did not ensure that the town’s accounting records and reports were complete, accurate, up-to-date or timely. The town’s accounting records were also not reliable. Auditors determined $590,880 in revenue and $55,182 in expenditures were not recorded. The accounting records’ cash balances were overstated by about $3 million as of Dec. 31, 2019. In addition, bank reconciliations were not performed. The town board did not always receive financial reports, and reports it received were not accurate. 

 

SCHOOL DISTRICT AUDITS

Lyncourt Central School District – Information Technology (Onondaga County) District officials did not adequately manage network user accounts or develop and adopt a written disaster recovery plan. As a result, the district has an increased risk that it could lose important data and suffer serious interruption in operations. District officials should have disabled 17 of the 113 network user accounts auditors examined. The 17 user accounts were unneeded and included generic, shared and former employee accounts. District officials should have also revoked permissions for eight of the 12 network user accounts with administrative permissions because the permissions were unneeded. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

An employer's duty to prevent an employee from committing suicide

This decision by the Appellate Division states that the Plaintiff in this action alleged  that the New York City Police Department [NYPD]  had knowledge of the state of its employee's [the Deceased] mental health and, instead of accommodating the Deceased's disability, assigned him to a position that would precipitate his death.  

Citing Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, after setting out the events leading to the litigation, the decision concludes as follows:

 "In short, the NYPD's 'failure to reasonably accommodate [the Deceased's] disability as soon as [it knew] of that condition is the very societal ill which the relevant anti-discrimination statutes were designed to combat.

Continuing, the Appellate Division opined that "[t]he statutes recognize the employer's failure in that regard to be particularly invidious because it forces the worker either to quit his or her job in order to preserve the worker's health or else to continue working without adequate protective measures and then succumb to a debilitating impairment* ... [s]adly, here, [the deceased] succumbed to a debilitating impairment before he was properly accommodated.

The court, however, ruled that it was "unable to grant [the Deceased] any relief because [his] estate failed to invoke the very statute that was enacted to protect him."

* See Jacobsen at 843-844.

Click HEREto access the full text of the Appellate Division's decision

Qualified privilege may be claimed in defending statements made for a supervisory purpose in an employment context alleged to be defamatory

Plaintiff in this action alleged that his former employer defamed him in the warning letter by issuing the letter of warning and directing Plaintiff to take anti-harassment training.

In the words of the Appellate Division, Plaintiff contends that the letter, "essentially finding" that Plaintiff had violated the employer's policy, is defamatory." However, said the court, to the extent the claim is based on the letter in general, it fails to state a cause of action for defamation.

The court opined that Plaintiff paraphrased the letter in his complaint and "misstates its contents, as the letter expressly found that [Plaintiff] had not violated employer's policies."

The Appellate Division also noted that Plaintiff failed to adequately plead publication of the alleged defamatory letter. He states only that the letter, though addressed to him, was "published to the rest of the Administration." This vague and undefined phrase does not meet the particularity requirements for person and time.

Plaintiff's reliance on that part of the letter which states that the employer found Plaintiff's conduct was "unprofessional and inappropriate" and evinced a "lack of appropriate judgment," is adequately particularized, at least as to its content, being a direct and accurate quote from the letter.

In any event, the Appellate Division, citing Foster v Churchill, 87 NY2d 744, concluded  that a qualified privilege attaches to statements made for a supervisory purpose in an employment context. As the letter was written by the employer in the context of an investigation into workplace conduct, the court opined that the employer was protected under the defense of qualified privilege.

Click HEREto access the Appellate Division's decision.

 

An employer may take an adverse employment action against an employee barred by law so long the employer has demonstrated an independent basis for the action

A probationary teacher [Plaintiff] observed a teacher providing unauthorized assistance to a student. Plaintiff contended that she immediately reported the incident, and it is undisputed that she "first put her allegations in writing in a letter dated April 19, 2013."

Plaintiff subsequently received four unsatisfactory lesson observation reports, two letters of misconduct and then received an unsatisfactory rating (U-rating) for the school year. The New York City Department of Education [DOE] did not give Plaintiff a certificate of satisfactory completion of probation and terminated her employment. Her administrative appeal was denied by a divided panel.

Plaintiff initiate a hybrid CPLR Article 78/plenary action challenging DOE's decision in Supreme Court. Ultimately the Appellate Division dismissed Plaintiff's action in its entirety "on the law."

The Appellate Division explained that DOE's decision to discontinue Plaintiff's probation and terminate her employment was based on the annual U-rating, which in turn was based on four unsatisfactory observation reports and two misconduct letters. These, said the court, provide ample evidence to support the conclusion that Plaintiff's performance was unsatisfactory, and thereby establish, for purposes of reviewing Plaintiff's Article 78 action, that Plaintiff's termination was done in good faith.

Turning to Plaintiff's seeking a court order annulling the U-rating and unsatisfactory observation reports as pretexts for a retaliatory discharge, the Appellate Division opined that this effort was unavailing as the U-rating was supported by the observation reports and misconduct letters, each of which recited first-hand observations made by the Assistant Principal and Principal and the unsatisfactory reports were "rationally based in the record."

Addressing Plaintiff's second cause of action under Civil Service Law, §75-b the Appellate Division found that Plaintiff had made a prima facie case by showing that:

1. She received numerous adverse employment actions in the form of unsatisfactory reports and ultimately loss of license and termination;

2. She disclosed what appeared to be an illegal action by a fellow teacher; and

3. The temporal connection between Plaintiff's reporting "the January 23, 2013 incident  and the negative employment actions she suffered beginning in early March, suffices to establish her prima facie case on causation."

That said, the Appellate Division pointed out that an appointing authority may nonetheless initiate an adverse employment action against an employee so long the employer has an "independent basis for the action."

In the words of the Appellate Division, "Here, as discussed, [DOE] had ample independent bases for their actions against [Plaintiff], in the form of the well-documented unsatisfactory reports and a corresponding U-rating for the year. Nor is there any evidence that [DOE's] actions were pretexts for retaliation, or that [DOE] would not have taken the same actions against [Plaintiff] had she not reported the alleged teacher misconduct" and dismissed Plaintiff's second cause of action alleging the DOE had violated Civil Service Law §75-b.

Click HEREto access the text of the Appellate Division's decision. 

 

 

Court holds plaintiff's failure to adequately allege race or national origin a motivating factor in the employer's employment decision a fatal omission

A federal district court dismissed Plaintiff's claims alleging unlawful discrimination, a hostile work environment, and retaliation as underlying her removal from her position at a component unit of the City University of New York [CUNY]. The court held that Plaintiff's allegations did not raise a plausible inference of discrimination or rise to the level of pervasive and severe conduct that altered the conditions of her employment. The district court then granted CUNY summary judgment on Plaintiff's retaliation claim, holding CUNY had articulated a legitimate reason for Plaintiff's removal, and that Plaintiff had failed to show that CUNY’s proffered reason was a pretext for retaliation. Plaintiff appealed. 

The Circuit Court of Appeals, Second Circuit, reviewed the lower court's rulings de novo, indicating that it “accept[ed] all factual claims in the complaint as true and draw[ing] all reasonable inferences in the plaintiff’s favor.” Noting that in reviewing a grant of summary judgment, the court it must “construe the evidence in the light most favorable to the non-moving party” and find that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Affirming the district court’s dismissal of Plaintiff’s discrimination and hostile work environment claims, the Circuit Court explained that Plaintiff's discrimination claim fails because Plaintiff did not adequately allege that her race or national origin was a motivating factor in CUNY’s decision to remove her from her positions with the facility.

In the words of the court, Plaintiff's "complaint does not identify the 'bits and pieces of information necessary 'to support an inference of discrimination, i.e., a mosaic of intentional discrimination' in relation to the adverse employment action at issue."

Similarly, said the court, Plaintiff's "hostile work environment claim fails because the alleged incidents are too mild and 'episodic' to support her claim," noting that many of the alleged incidents lack any racial overtone and, in general, the alleged incidents “were too few, too separate in time, and too mild . . . to create an abusive working environment.”

Affirming the district court’s decision granting CUNY summary judgment on Plaintiff’s retaliation claim, the court explained that under McDonnell Douglas Corp. v. Green, 411 U.S. 792 , "a plaintiff must first establish a prima faciecase of retaliation; then the defendant must offer a non-retaliatory reason for the employment action; and then the plaintiff must show that the retaliatory reason is a “but-for cause of [the] adverse employment action,” which may be done by "for example [by] demonstrating that the non-retaliatory reason is pretextual."

The Circuit Court concluded by stating that Plaintiff "has not met her burden of producing 'sufficient evidence to demonstrate that' [she] would not have been removed [from her positions] from the graduate advisor and fellowship coordinator positions 'in the absence of the retaliatory motive.”

Click HERE to access the Circuit Court's decision.

 

Permanent New York State Commissioner of Education designated

On February 8, 2021, the New York State Board of Regents announced that it had unanimously elected Dr. Betty A. Rosa to serve as New York State's Commissioner of Education.

Dr. Rosa, a nationally recognized education leader, received an Ed. M. and Ed. D. in Administration, Planning and Social Policy from Harvard University. She also holds two other Master of Science in Education degrees, one in Administration and Supervision and the other in Bilingual Education from the City College of New York and Lehman College respectively and a B.A. in psychology from the City College of New York. She has more than 30 years of instructional and administrative experience with an expertise in inclusive education, cooperative teaching models, student achievement and policy implementation.

Regent Judith Chen, a member of the search committee, said, "We set our goal to find an individual with exceptional qualities of leadership, statesmanship and unquestionable integrity … During our extended search process, my colleagues and I determined that Dr. Rosa stood above all others."