State Comptroller Thomas P. DiNapoli announced the following school audits have been issued

 

On June 20, 2023, New York State Comptroller Thomas P. DiNapoli announced the following school audits were issued. 

Olean City School District – Reserve Funds (Cattaraugus County) The board and district officials properly established the district’s nine general fund reserve funds totaling $10.9 million but did not use the reserve funds and could not demonstrate that $8 million held in seven of these reserves was reasonable or needed. In addition, the board and district officials did not adopt a comprehensive written reserve fund policy, transparently fund reserves or take appropriate action to address overfunded reserves.

 

Thousand Islands Central School District – Financial Management (Jefferson County) The board and district officials did not properly manage fund balance and reserves. As a result, officials withheld funds from productive use and may have missed opportunities to reduce the tax levy. The board and district officials overestimated appropriations by $9.7 million (11.6%) between the 2017-18 and 2020-21 fiscal years and appropriated fund balance totaling $6.1 million that was not needed. They also reported fiscal year-end surplus fund balance ranging from $2.4 to $3 million (10.3 to 12.8%) of the next year’s budget (during the same period), which exceeded the 4% statutory limit by $1.4 to $2.1 million. In addition, a tax certiorari reserve was improperly funded by $304,641 and a debt reserve, with a balance of approximately $1 million, was not used to pay debt-service costs during the 2019-20 and 2020-21 fiscal years as required.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Budget Development BOCES officials’ budget development process was ineffective and did not ensure reasonable budget estimates. Budgets developed for the 2019-20, 2020-21 and 2021-22 fiscal years had overestimated appropriations totaling $65.5 million and overestimated revenues totaling $41.2 million. This resulted in net operating surpluses totaling more than $24 million over the three-year period. Appropriations for three equipment accounts and two printing service accounts were consistently overestimated by approximately $11.5 million and $3 million annually. In addition, department heads utilize worksheets to prepare budget estimates, which are then required to be manually input into the financial system by the business office, which is inefficient and increases the likelihood of errors.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Payroll Although BOCES officials compensated employees the auditors reviewed in accordance with collective bargaining agreements and employment contracts, 40 employees received unearned wages totaling $25,948 of which $19,985 was not recouped. In addition, it cost BOCES approximately $111,000 annually for time spent in the review, approval and manual entry into the financial system of the timesheets utilized by certain bargaining units/departments.

 

Oxford Academy and Central School District – Transportation Department Purchase and Service Contracts (Chenango County) District officials did not comply with competitive bidding requirements for 33 of 35 transportation contracts totaling $322,056. In addition, district fuel credit card purchases resulting in 155 charges totaling $16,258 did not comply with district procedures. Lastly, vehicle repair invoices and parts ordered by the vehicle maintenance and repair vendor were not reviewed and 22 charges, totaling $1,891, did not have enough detail to verify that the parts ordered were used for district vehicles.

 

Hawthorne Cedar Knolls Union Free School District – Financial Condition (Westchester County) The district had a general fund balance deficit in each of the last five fiscal years, averaging more than $2.9 million each year. This contributed to the district’s overall cash position, which decreased by 71%. The largest deficit occurred in the 2020-21 fiscal year and totaled more than $5.1 million. Although a multiyear financial plan would provide more transparency regarding the district’s long-term financial goals and help guide the board and officials as they develop district budgets, they did not develop a multiyear financial plan for the district.

 

Gouverneur Central School District – Medicaid Reimbursements (St. Lawrence County) District officials did not identify students who received Medicaid-eligible services or file Medicaid-reimbursement claims to recover part of the costs associated with these services. As a result, the district did not receive about $68,200 for reimbursements to which it was entitled. Although the district provided Medicaid-reimbursable services to 27 students who were eligible for Medicaid during the 2021-22 fiscal year, officials did not file for reimbursements because a district-prepared cost-benefit analysis did not fully quantify the potential revenue that could be realized. District officials also did not establish Medicaid claims procedures to ensure that staff maintained sufficient documentation for eligible services provided.

 

Fishers Island Union Free School District – Website Transparency (Suffolk County)District officials did not ensure the district’s website provided the public with transparent and comprehensive financial information. As a result, the community and other interested parties could not readily access and review information that could be used to make informed decisions. Officials also did not post information they were required to include on the district’s website.

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Judicial review of the denial of a grievance alleging a violation of a provision set out in a collective bargaining agreement

The Governor's Office of Employee Relations denied certain out-of-title work grievances  filed by the President of the New York State Public Employees Federation, [PEF] AFL-CIO, the certified representative of employees in the Professional, Scientific and Technical Services bargaining unit, on behalf of a number of aggrieved members of the collective bargaining unit.

The aggrieved members of the bargaining unit were employed by the New York State Division of State Police in the title of Program Research Specialist [PRS], Salary Grade 18, in the Criminal Intelligence Section of the New York State Intelligence Center [NYSIC]. PEF contended that the grievants had been assigned to perform the duties of an Intelligence Analyst, [IA] Salary Grade 25, a title that PEF alleged  existed exclusively within the Counter Terrorism Section of NYSIC in violation of Civil Service Law §61(2) and in violation of certain terms set out in the controlling collective bargaining agreement. State Police denied the grievance on procedural grounds. 

Upon appeal, the Governor's Office of Employee Relations [GOER], in conformance with the recommendations of Division of Classification and Compensation of the Department of Civil Service, GOER concluded that the grieving employees were working out-of-title and directed the State Police to "cease and desist from making such out-of-title assignments." GOER further concluded that additional compensation was unwarranted as the out-of-title work performed was appropriate to salary grade 18.*

PEF then commenced a CPLR Article 78 proceeding challenging GOER's determination. Supreme Court sustained GOER's decision to the extent that it denied the individual grievants additional compensation for their out-of-title work relating to criminal intelligence and anti-crime duties and remanded the matter to GOER to:

1. More fully develop the administrative record with respect to the individual grievants' counter-terrorism duties; and 

2. Issue a new determination addressing whether the individual grievants were entitled to additional compensation for performing those specific duties. 

PEF appeal Supreme Court's ruling.

Citing  Matter of Brenner v Governor's Off. of Empl. Relations, 3 AD3d 644, the Appellate Division affirmed Supreme Court's decision, holding that "it was not erroneous for Supreme Court to remit for a new determination following development as to the alleged counter-terrorism duties, the length of time each individual [employee] engaged therein and the ratio of any such duties to each individual [employee's] work as a whole".**

Addressing GOER's ultimate conclusion that the grieving employees' duties were appropriate to salary grade 18, the Appellate Division said that the controlling provisions of the applicable collective bargaining agreement provided "out-of-title duties found to be appropriate to the same salary grade as that held by the affected employees do not entitle those employees to monetary compensation; rather, in such circumstances, the employees are entitled only to a declaration that the duties were out-of-title and to a discontinuance of the out-of-title assignments", citing Matter of Spence v New York State Governor's Off. of Empl. Relations, 183 AD3d 1199, leave to appeal denied, 35 NY3d 916.

Concluding that judicial review of GOER's determination in this context is limited to assessing whether it is arbitrary and capricious, the Appellate Division said that considering the similarities between the criminal intelligence duties performed by the individual employee during the relevant time period and the new IS 1 classification standard, it found no basis for disturbing that aspect of GOER's determination.

Accordingly, the Appellate Division held that Supreme Court properly partially dismissed PEF's petition.

* The Appellate Division noted that the subject grievance and others like it ultimately led to the Department of Civil Service reclassifying the PRS and IA titles within NYSIC to a new title series — State Police Intelligence Analyst 1-4, Salary Grades 18, 23, 25 and 29.

** The Appellate Division opined that "that the procedural posture of this appeal is less than ideal; when faced with an administrative determination that is inadequate to permit meaningful judicial review, the better practice would be for Supreme Court to withhold decision, remit for a new or supplemental determination and to then consider the matter as a whole, avoiding piecemeal review."

Click HERE to access the Appellate Division's decision posted on the Internet.

Upcoming Webinars offered by the New York State Department of Environmental Conservation

Upcoming Webinars focusing on:

Electric Vehicles and Charging Stations Extreme Heat and Climate Change: Preparing for Summer 2023 Environmental Bond Act Educational Listening Sessions Learn Why Municipalities are Transitioning Fleets to Electric Vehicles and Investing in Public Charging Infrastructure in Communities State and Utility Incentives and Programs are Available to Help The Central New York Regional Planning and Development Board (CNY RPDB), in collaboration with National Grid, presents a new webinar about electric vehicles (EVs) and EV charging stations. Topics to be covered in this webinar: why municipalities should consider EVs and charging stations now; current market trends; incentives; State programs; and statewide utility programs. In addition, hear about how electrifying fleets and installing public EV charging stations can benefit municipalities working towards certification in the Climate Smart Communities program and designation in the Clean Energy Communities program. Webinar Information: Date: June 22, 2023 Time: 12:30 p.m. – 1:30 p.m. Register to attend: https://us02web.zoom.us/meeting/register/tZctdemhqTgpE9JAFcGFiMoum9u7daH2kHaa#/registration Featuring Chris Carrick, Energy Program Manager at CNY RPDB Amanda Mazzoni, Clean Energy Communities Coordinator at CNY RPDB Mike Boccuzzi, Climate Smart Communities Coordinator at CNY RPDB Whitney Skeans, Senior Program Manager Electric Vehicles – NY at National Grid Leslie Vishwanath, Lead Project Manager Electric Vehicles/Clean Fleets - NY at National Grid Who Should Attend? Municipal officials and planning staff, Climate Smart Communities Task Force members, and all other members of the public are encouraged to attend. Questions? Contact Amanda Mazzoni at amazzoni@cnyrpdb.org.   Final Webinar in the Series About Extreme Heat and Climate Change in New York State – June 22 This webinar will highlight ways in which communities can assess, plan for, and adapt to extreme heat impacts. The presentations will review data and tools for understanding impacts, showcase key State programs and resources, and describe individual measures to adapt and stay cool. The webinar will discuss the various ways in which local governments, emergency response coordinators, and community groups can help their communities be safe during extreme heat events and highlight some of the available resources the State provides to support local preparedness and adaptation to extreme heat. Webinar Information: Date: June 22, 2023 Time: 2:00 p.m. – 4:00 p.m. Register to attend: https://meetny.webex.com/weblink/register/r264fbdc9b8c251e630b9ea766e7acba5 Expert Panel: Neil Muscatiello - Bureau of Environmental and Occupational Epidemiology at the New York State Department of Health. Corrina Cavallo – New York State Division of Homeland Security and Emergency Services Shannon Clarke – New York State Division of Homeland Security and Emergency Services Elaine Mahoney – New York State Homes & Community Renewal David Burgy – New York State Office of Resilient Homes and Communities Mara-Louise Shea – New York State Department of Environmental Conservation, Office of Climate Change Emily D’Angelo – New York State Association of County Health Officials Rami Dinnawi – El Puente David Hondula – Arizona State University’s School of Geographical Sciences and Urban Planning, and the City of Phoenix, Arizona Moderator: Meghan Holtan – University at Buffalo The webinar series is part of the New York State Department of Environmental Conservation (DEC) and New York State Energy Research and Development Authority (NYSERDA)’s development of an extreme heat action plan in response to the increased frequency and intensity of extreme heat events caused by climate change. DEC and NYSERDA started convening the Extreme Heat Action Plan Work Group last year. It consists of more than 20 State agencies working together on immediate steps to address the dangers of extreme heat. The webinars, hosted by DEC and NYSERDA in conjunction with the Extreme Heat Action Plan Work Group and University at Buffalo, include presentations by a panel of subject matter experts on topics relevant to State and local planning for extreme heat events. Municipal officials and planning staff, community organizations, and all other members of the public are encouraged to attend. Recordings of all webinars in the series are posted on the DEC website. More information about extreme heat and climate change in New York, and additional extreme heat action tools and resources are available on the DEC website.   Attend an Environmental Bond Act Educational Listening Session Overwhelmingly approved by voters last fall, the $4.2 billion Clean Water, Clean Air, and Green Jobs Environmental Bond Act prioritizes investments in environmental justice, climate change mitigation, shoreline restoration, flood resilience, water quality, open space conservation, recreational resources, and green jobs. This spring and summer, the public and potential funding applicants will be able to learn more about the Bond Act at a series of educational listening sessions. Sessions have been announced across the state - use the links below to register: Virtual Meeting: June 26, 6 to 8 p.m. Saranac Lake: July 14, 1 to 3 p.m., North Country Community College, Sparks Athletic Complex Alumni Gymnasium Capital Region: July 20, 1 to 3 p.m. University at Albany, Campus Center Auditorium Virtual Meeting: July 26, 6 to 8 p.m. Brooklyn: August 9, 6 to 8 p.m., Brooklyn College Lower Hudson: August 15, 1 to 3 p.m., Westchester County Center, Little Theater Bronx: August 22, 6 to 8 p.m., La Central YMCA Gymnasium Brentwood: August 24, 1 to 3 p.m., Suffolk County Community College Sessions will feature a presentation on the Bond Act and an opportunity for one-on-one discussion with State experts. Meetings will be open to the public. State agencies, local governments, and partners will be able to access Environmental Bond Act funding over a multi-year process. Recognizing that vulnerable populations are disproportionately affected by negative environmental and climate change impacts, at least 35%, with a goal of 40%, of Bond Act benefits will be directed toward disadvantaged communities.

DEC Delivers - Information to keep you connected and informed from the NYS Department of Environmental Conservation

View in browser

Failure to establish a causal connection between any protected activity and any adverse employment action fatal to employee's allegations of unlawful discrimination

In this action to recover damages for alleged employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC §1983, Supreme Court granted the Defendants' motion for summary judgment and dismissed the employee's complaint. Plaintiff appealed.

The Appellate Division sustained the Supreme Court's decision, noting that the Defendants met their initial burden of demonstrating that the Plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the Plaintiff and Plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action.

The Appellate Division's decision is set out below:

Shapiro v State of New York

2023 NY Slip Op 03030

Decided on June 7, 2023

Appellate Division, Second Department

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

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

Decided on June 7, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
WILLIAM G. FORD
BARRY E. WARHIT, JJ.

2020-01368
(Index No. 602678/14)

Leonard R. Shapiro, appellant,

v

State of New York, et al., respondents.

Leeds Brown Law, P.C., Carle Place, NY (Rick Ostrove and Brandon Okano of counsel), for appellant.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Blair J. Greenwald of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for employment discrimination on the basis of age in violation of the New York State Human Rights Law and 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered November 21, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was born in August 1946, has been employed as an Administrative Law Judge for the New York State Unemployment Insurance Appeal Board (hereinafter the UIAB) under various titles since 1975, and has been in the UIAB's Garden City office since 2003. During the relevant time period, the defendant Jayson S. Myers was the Chief Judge of the UIAB and the defendants Teresa A. DeMeo and Matthew J. Tierney were Principal Administrative Law Judges of the UIAB. The plaintiff commenced this action in June 2014, asserting causes of action, inter alia, alleging age discrimination and retaliation in violation of the New York State Human Rights Law (see Executive Law § 296 [hereinafter the NYSHRL]), violation of his constitutional rights pursuant to 42 USC § 1983 to equal protection as a result of age discrimination, and that the individual defendants aided and abetted each other in the alleged discrimination and retaliation. The plaintiff alleged that the defendants engaged in adverse employment actions consisting of issuing him three counseling memoranda and an action plan; assigning him a disproportionately heavy workload; temporarily removing his supervisory duties; and declining to consider him as a candidate for a new senior Administrative Law Judge position in the UIAB office where he was employed. After discovery, the defendants moved for summary judgment dismissing the complaint. In an order entered November 21, 2019, the Supreme Court granted the motion. This appeal ensued.

The NYSHRL prohibits employment discrimination on the basis of age and retaliation against an employee for opposing discriminatory practices, as well as the aiding and abetting of any such discriminatory act (see Executive Law § 296[1], [6], [7]).

A plaintiff alleging discrimination in violation of the NYSHRL must establish that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305). To prevail on a motion for summary judgment in an action alleging discrimination in violation of the NYSHRL, a defendant "must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for the Blind, 3 NY3d at 305; see Golston-Green v City of New York, 184 AD3d 24, 36). At the time this action was commenced, under the NYSHRL, to be actionable, the adverse employment action had to be "a materially adverse change in the terms and conditions of employment" (Forrest v Jewish Guild for the Blind, 3 NY3d at 306; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 34-40).

Here, the defendants demonstrated, prima facie, that the plaintiff did not suffer an adverse employment action within the meaning of the NYSHRL (see Forrest v Jewish Guild for the Blind, 3 NY3d at 307; Golston-Green v City of New York, 184 AD3d at 37; Furfero v St. John's Univ., 94 AD3d 695, 698). In opposition, the plaintiff failed to raise a triable issue of fact (see Johnson v NYU Hosps. Ctr., 39 AD3d 817, 818).

At the time the plaintiff commenced this action, in order to establish a cause of action alleging unlawful retaliation, the "plaintiff [had to] show that (1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; cf. Executive Law § 300; Golston-Green v City of New York, 184 AD3d at 38). In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Burlington N. & S.F.R. Co. v White, 548 US 53, 68). "To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Delrio v City of New York, 91 AD3d 900, 901; see Forrest v Jewish Guild for the Blind, 3 NY3d at 312-314; Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d 867, 868).

Here, the defendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the plaintiff (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868; Delrio v City of New York, 91 AD3d at 902). In opposition, the plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which he engaged and any adverse employment action (see Langton v Warwick Val. Cent. Sch. Dist., 144 AD3d at 868). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the unlawful retaliation cause of action.

Since the plaintiff has failed to raise a triable issue of material fact that he was either retaliated against or discriminated against because of his age, his claims that the defendants aided and abetted each other in any discrimination or retaliation cannot survive (see Forrest v Jewish Guild for the Blind, 3 NY3d at 314; Johnson v NYU Hosps. Ctr., 39 AD3d at 818).

The plaintiff's remaining contention is without merit.

BARROS, J.P., BRATHWAITE NELSON, FORD and WARHIT, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

 

Former Rescue Squad business manager charged with stealing over $17,000 from the Squad

On June 14, 2023, State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police announced the indictment of former Chatham Rescue Squad Business Manager Sara Thorne, of Forest City, North Carolina, for allegedly stealing more than $17,000 from the rescue squad. The Rescue Squad business manager allegedly used the funds to pay for groceries, meals, and travel for her husband.*

“Thorne allegedly abused her position to divert thousands of dollars meant to protect her community,” DiNapoli said. “Thanks to my ongoing partnership with District Attorney Czajka and the New York State Police, she is now brought to justice.”

“We appreciate the diligence and hard work of the State Comptroller’s Office in this complex financial investigation,” Columbia County District Attorney Paul Czajka said. “Comptroller DiNapoli and his skilled and diligent team of investigators and auditors have uncovered several criminal schemes in Columbia County over the last several years. This is only the latest.”

“I commend the Comptroller and DA’s offices, and our State Police investigators for their stellar work in exposing this fraud,” Acting New York State Police Superintendent Steven A. Nigrelli said. “The arrest of this individual sends a strong message that we will not tolerate such corruption. When a public servant seeks to use their position to profit at the expense of the taxpayers and the local community, they will be held accountable for their crimes and prosecuted appropriately.”

Thorne provided administrative support for the Chatham Rescue Squad for twenty years until her employment was terminated in 2022. Her final position was as Business Manager, where she was the sole officer responsible for payroll, among other duties. While originally based in Columbia County, Thorne was allowed to work remotely from North Carolina since 2015 with an annual salary topping $100,000.

From 2017 to 2019, Thorne was paid annual bonuses of $5,000 to $6,500 by the squad’s Board of Directors. In addition to these bonuses, investigators found Thorne additionally paid herself $9,528 to cover the associated tax liabilities for those payments. Investigators found Thorne cashed out a combined 160 hours of leave in 2019 without board approval or knowledge, paying herself an additional $6,481.

Thorne had a personal credit card she used for rescue squad purchases. Rather than use the card for official business or specific charges, Thorne used this card for personal purchases at a grocery store and a restaurant. Thorne also purchased travel for her husband and upgrades to first class travel for herself. Thorne paid this credit card bill with rescue squad funds. She never presented these expenses to the board for approval or provided bank statements for review.

When DiNapoli’s investigators questioned Thorne about invoices and receipts for her credit card expenses, Thorne provided altered documents to hide the fact that the rescue squad had paid for her husband’s travel. In total, Thorne used $1,068 in squad funds to pay for these expenses.

Thorne, was charged with two counts of Grand Larceny (3rd degree, D Felony), two counts of Falsifying Business Records (1st degree, E Felony) and three counts of Petit Larceny (A Misdemeanor). She was arraigned today before Columbia County Court Judge Jonathan D. Nichols and is due back in court on July 24, 2023.

*N.B.:  The charges filed against Thorne are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations; or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Paid Parental Leave policies for employees of the State as the employer in collective bargaining units represented by CSEA

The Department of Civil Service has published the following Attendance and Leave Bulletin:

• Policy Bulletin 2023-02, Paid Parental Leave for CSEA Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and Division of Military and Naval Affairs (DMNA) Employees

Text of Policy Bulletin 2023-02 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull23-02.cfm

If you wish to print Policy Bulletin 2023-02, the Department offers a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/PB2023-02BulletinandChart.pdf

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

Challenging a school board election and budget vote and seeking the removal of a member of the school board

The Petitioner in this appeal to the Commissioner of Education challenged [1] the vote on the school district's proposed annual budget and [2] the election of candidates to the school board.*  

After addressing a "procedural matter", Commissioner of Education Betty A. Rosa turned to the merits of Petitioner's appeal, noting that a petitioner "has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, citing 8 NYCRR 275.10.

Although the Petitioner asserted that the district made multiple errors in connection with the election, the Commissioner found that she has failed to meet her burden of proving that any of these alleged errors affected the outcome of the election, were so pervasive that they vitiated the electoral process, or that they demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

As an example, the Commissioner noted that Petitioner characterizes the school district’s use of a ballot on election day that was different in format than the sample ballot it published on its website as the “capstone to numerous examples of a dereliction of duties.”** 

The Commissioner, however, noted that the single example advanced by Petitioner - that "one resident informed her she had made an error in casting her vote intended for [Petitioner] due to confusion about the ballot’s format" - she failed to produce any evidence such as "affidavits or signed statements from district voters, to support her claim."

Opining that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results," the Commissioner concluded that Petitioner "failed to meet her burden of proving that [the school district] committed election irregularities that affected the results of the election or was otherwise negligent in its oversight and execution of the school board election and budget vote.

Similarly, said Commissioner Rosa, Petitioner had not alleged sufficient facts to support removal of the trustee named in her appeal. Citing a number of earlier decisions of Commissioners of Education, Dr. Rosa observed that a school officer or member of a board of education may be removed from office "when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law" citing Education Law §306[1].

To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose. Even accepting Petitioner’s allegations concerning the trustee as true, Petitioner "does not allege that [the trustee named] acted with a wrongful purpose.

The Commissioner held that "The appeal must be dismissed and the application for removal must be denied."

* Petitioner was one of five candidates seeking election to the school board and was not elected. She also sought the removal of one of candidates elected to the board.  

** While the sample ballot listed candidates vertically, divided into two columns, the actual ballot listed candidates horizontally with an empty box under the name of the first three candidates and a bubble under the names of petitioner and the final candidate.

Click HERE to access the Commissioner's decision posted on the Internet.

Court considered employee's long unblemished service record in mitigating imposing the disciplinary penalty of dismissal "under the circumstances"

A tenured teacher [Educator], was charged with conduct unbecoming a teacher, misconduct, and insubordination for allegedly inappropriately restraining a female student who was trying to get past him. The matter proceeded to arbitration, resulting in a determination, after a hearing, finding Educator guilty of inappropriate conduct and the imposition of the penalty of termination of his employment with the school district. Educator then commenced a proceeding pursuant to CPLR Article 75 seeking to vacate the determination. Supreme Court denied Educator's petition and dismissed the proceeding. Educator appealed.

The Appellate Division held that there was a rational basis and evidentiary support for the finding that Educator committed the conduct with which he was charged by inappropriately restraining a female student who was trying to get past him. 

A video of the incident, which was admitted into evidence at the hearing, however, could be interpreted in more than one way. Citing Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013, the Appellate Division explained it must "accept the arbitrator's credibility determinations, even where there is conflicting evidence and room for choice exists".

Noting the decisions in Matter of Principe v New York City Dept. of Educ., 94 AD3d 431, affirmed 20 NY3d 963, the Appellate Division, in consideration of Educator's otherwise unblemished record of approximately 19 years as a teacher with the school district, opined "the penalty of termination of employment was so disproportionate to the offense as to be shocking to one's sense of fairness".

The Appellate Division then vacated the disciplinary penalty terminating Educator's employment and remitted the matter to the school district "for the imposition of a lesser penalty".

Click HERE to access the Appellate Division's decision posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information and access to a free excerpt from this e-book click HERE.

 

 

Attendance Rule providing "paid family leave" for employees in the Classified Service of the State as the employer designated Managerial or Confidential proposed

The New York State Department of Civil Service has proposed the adoption of a new  "consensus rule",* set out below,  to provide a grant of up to twelve weeks of paid family leave for a qualifying event for eligible employees** in serving in positions in the Classified Service*** of the State of New York as the employer designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law. Article 14 of the Civil Service Law is frequently referred to as the "Taylor Law".

* A proposed rule or regulation may be filed as a consensus rule or regulation if the agency concludes that the proposed rule or regulation is non-controversial based on its subject.

** Although not all employees of the State as the employer in the Classified Service are State officers, all officers of the State as the employer in the Classified Service are employees of the State. 

*** See Civil Service Law §40.

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Department of Civil Service

PROPOSED RULE MAKING NO HEARING(S) SCHEDULED

Paid Family Leave I.D. No. CVS-23-23-00001-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: This is a consensus rule making to add §28-1.19 to Title 4 NYCRR.  

Statutory authority: Civil Service Law, §6(1)

Subject: Paid family leave.

Purpose: To provide a grant of up to twelve weeks of paid family leave for a qualifying event for subject employees in M/C positions.

Text of proposed rule:

RESOLVED, That subject to the approval of the Governor, Section 28 of the Attendance Rules for Employees in New York State Departments and Institutions be and hereby is amended, with a new subdivision to read as follows: 

28-1.19 Paid Parental Leave

(1) Employees shall be granted up to twelve weeks of paid leave without charge to accruals for each qualifying event, defined as the birth of a child or placement of a child for adoption or foster care. Paid parental leave begins on the date of birth, the day of adoption or foster care placement or anytime thereafter within seven months. An employee’s eligibility to use paid parental leave ends seven months from the date of the qualifying event.

(2) Paid parental leave is available for use once every twelve-month period.

(3) Employees using paid parental leave are deemed to be in leave without pay status for attendance and leave purposes.

(4) Paid parental leave must be taken in a single block of time and cannot be used intermittently. If an employee returns to work after using less than the full twelve week grant of paid parental leave, the employee can no longer use any paid parental leave for the same or another qualifying event within the same twelve month period, as computed from the date of the original qualifying event.

 

The text of proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov

Data, views or arguments may be submitted to: Eugene Sarfoh, Counsel, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-2624, email: public.comments@cs.ny.gov. Public comment will be received until: 60 days after publication of this notice.

Consensus Rule Making Determination Section 6(1) of the Civil Service Law authorizes the State Civil Service Commission to prescribe and amend suitable rules and regulations concerning leaves of absence for employees in the Classified Service of the State.

On January 10, 2023, Governor Hochul announced that New York State will provide twelve weeks of Paid Parental Leave for unrepresented (Managerial/Confidential) executive branch state employees to bond with a newly born, adopted, or fostered child.

Effective February 14, 2023, Paid Parental Leave became available to any gestational, non-gestational, adoptive, or foster parent who meets certain eligibility criteria for unrepresented executive branch employees.

All other child care leave benefits, including sick leave accruals, family sick leave benefits, Family Medical Leave Act (FMLA), Income Protection Plan (IPP), and Paid Family Leave (PFL), remain unchanged and available for use when applicable.

Consistent with Commission practice, significant changes to State leave polices are incorporated, as appropriate, as amendments or additions to the Attendance Rules for Employees in New State Departments and Institutions (Attendance Rules). Accordingly, Paid Parental Leave is hereby added to Part 28 of the Attendance Rules, applicable to employees serving in unrepresented positions.

As no person or entity is likely to object to the rule as written, the proposed rule is advanced as a consensus rule pursuant to State Administrative Procedure Act (SAPA) §202(1)(b)(i). Employees in represented New York State positions will be eligible to obtain equivalent benefits through the collective bargaining process.

Job Impact Statement

By amending Title 4 of the NYCRR to provide for Paid Parental Leave for certain New York State employees serving in unrepresented positions, this rule will not negatively impact jobs or employment opportunities for eligible employees, as set forth in §201-a(2)(a) of the State Administrative Procedure Act (SAPA). Therefore, a Job Impact Statement (JIS) is not required by §201-a of such Act.

 

 

 

New York State Comptroller DiNapoli releases municipal and school audits

On June 8, 2023, New York State Comptroller Thomas P. DiNapoli announced the local government audits set out below were issued during the week ending June 10, 2023.

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

Town of Dix – Supervisor’s Control of Cash (Schuyler County) The former supervisor did not ensure all cash in his custody was properly collected and disbursed and did not provide oversight of the bookkeepers, who performed all financial duties, including online banking. The board did not adopt written policies and procedures for cash receipts and disbursements and online banking. In 2020, the former bookkeeper received $1,254 in dental and vision insurance through the town and paid $126 of the premium cost. There was no documentation to support why she was entitled to receive these benefits. The findings regarding the former bookkeeper were referred to outside law enforcement for review.

Brighton Central School District – Procurement (Monroe County) District officials did not demonstrate that certain goods and services related to the 2021-22 capital improvement project (CIP) were procured in accordance with district policies, statutory requirements and good business practices. Of the nine CIP contracts totaling $4.4 million awarded to vendors, officials could not show they competitively awarded two contracts, totaling $2.8 million. Instead of using competitive bidding, officials used vendors who were granted awards from group purchasing organization contracts. However, officials could not demonstrate that they performed cost-benefit analyses to determine if using these vendors was in the district’s best interest.

Onondaga Cortland Madison Board of Cooperative Educational Services (BOCES) – Cash Management (2023M-40) Over an 18-month period, officials missed an opportunity for BOCES to realize additional interest earnings totaling $310,865. Officials did not develop and manage a comprehensive investment program or develop procedures for the operation of the investment program in compliance with the board investment policy. Officials also did not invest available funds throughout the audit period in an authorized cooperative municipal investment fund that offered higher interest rates. They did not prepare monthly cash flow forecasts or ensure interest rate quotes were solicited to maximize earnings.

North Salem Central School District – Network User Accounts (Westchester County) In addition to finding sensitive information technology (IT) control weaknesses, auditors found that district officials should have developed procedures for granting, changing and disabling network user accounts and ensured staff disabled 181 unneeded network user accounts. Seven of these users left the district between 2011 and 2019.

Hilton Central School District – Network Access Controls (Monroe County) In addition to sensitive network access control weaknesses, district officials did not establish written policies or adequate written procedures for managing network user account access, including adding or disabling user accounts and permissions. The district had 230 unneeded enabled network user accounts, including those for former students, former employees and others who were no longer providing services to the district.

Amherst Central School District – Network User Account Access and Application User Accounts and Permissions (Erie County) District officials did not adequately secure user account access to the network or properly manage user accounts and permissions in financial and student information applications, leading to a significant risk that network resources, financial data and student information could be inappropriately altered, accessed, or used. In addition to sensitive control weaknesses that were communicated confidentially, officials did not disable unnecessary network user accounts or revoke unnecessary network user account access. As many as 1,570 accounts were unneeded but were not disabled and four accounts had unnecessary network administrative access. The district also did not disable application user accounts or properly restrict permissions in the financial and student information applications.

West Webster Volunteer Firemen’s Association, Inc. – Cash Disbursements (Monroe County) The board did not ensure that cash disbursements were properly approved, accurately recorded, had adequate supporting documentation and were for association purposes. Auditors found that 138 disbursements (28%) totaling $39,929 did not have an itemized invoice or receipt (or other such documentation) and a documented, specific association purpose. Five disbursements totaling $1,308 were not recorded in the accounting records. In addition, the board did not adopt adequate bylaws or written policies or enforce compliance with the limited bylaws and policies that it adopted or establish adequate controls over disbursements, such as auditing all claims and reviewing bank statements and canceled check images.

 

A public employee is entitled to separate counsel to be paid for by the jurisdiction where representation by the jurisdiction's attorney may result in a conflict of interest

The Village Board of Trustees [Board] commenced a CPLR Article 78 proceeding to compel the Mayor of the Village [Mayor] to perform certain official duties. In his answer, Mayor sought a judgment declaring that he is entitled to separate counsel in this proceeding with reasonable fees to be paid by the Village. Supreme Court granted Mayor's counterclaim, declaring that Mayor was entitled to separate counsel in this proceeding, with reasonable fees to be paid by the Village. The Board appealed.

The Appellate Division held that Supreme Court properly declared that Mayor was entitled to separate representation in this proceeding without the requirement that he first comply with the procedures outlined in the Code of the Village relating to defense and indemnification of Village employees.

The Appellate Division conceded that an attorney generally may not be compensated for services rendered to a municipal officer, even if for the benefit of the municipality, unless the attorney has been retained in accordance with statutory authority. However, opined the court, "[n]otwithstanding lack of specific statutory authority, a municipal ... officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with ... his official duties where the municipal attorney ... was disqualified from ... acting", citing Cahn v Town of Huntington , 29 NY2d 451, among other decisions.

In this instance, the Village attorney was unable to represent Mayor due to a conflict of interest as he was representing the Board in the matter. Thus, said the court, Mayor was entitled to engage counsel who did not have a conflict of interest. Further, noted the Appellate Division, Board acknowledged as much when it approved of retention of "conflict counsel" for Mayor prior to the commencement of this proceeding when it became apparent that Mayor was taking a position contrary to the Board's.

The Appellate Division then observed, "As the Supreme Court properly determined, the amount the Village pays for [Mayor's] separate counsel shall depend upon [Mayor's] submission, and the Village's approval, of a claim for reasonable fees."

Click HERE to access the Appellate Division's decision posted on the Internet.

Veterans Internship Program Bill Passed by New York State Legislature to be delivered to the Governor

On June 7, 2023, Senator Jim Tedisco (R,C-44th Senate District) and Assemblymember Marianne Buttenschon (D-Utica/Rome) announced that both houses of the New York State Legislature have passed their bipartisan Veterans Internship Program (V.I.P.) legislation to enable honorably discharged veterans to participate in the legislature’s annual paid legislative internship program that could help lead them to future employment.

Tedisco and Buttenschon’s V.I.P. legislation (S.291/A.1347) sets aside 10 percent of the current legislative internship program positions in the Senate and Assembly for veterans to see the inner workings of the representative democracy they put their lives on the line to defend.

Veteran participants in the Veterans Internship Program would receive a stipend that’s equivalent to what graduate students currently receive in the Senate ($50,000) and Assembly ($17,000). The Senate and Assembly internship offices would work with county veterans services agencies to identify and recruit eligible candidates. There will be no additional cost to taxpayers to implement the V.I.P. law.

Click HERE for information about this Internship Program.