Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
June 24, 2016
Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer
Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer
June 23, 2016
Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016
Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016
Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer
Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer
Following a preliminary investigation of the complaint by the School District’s Director of Human Resources, the School Board [Board] retained an attorney to conduct an investigation and prepare a written report for the Board's consideration.
June 22, 2016
Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure
Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure
After an unsuccessful administrative appeal, Petitioner initiated litigation to compel the custodian to produce the case file. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court’s decision.
** The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute unless the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the FOIL exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.
The decision is posted on the Internet at:
June 21, 2016
Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes
Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes
On June 21, 2016, Governor Andrew M. Cuomo sent a letter to Port Authority of New York and New Jersey Chairman John Degnan, Vice Chairman Steven Cohen and Executive Director Patrick Foye regarding a reported lane closure in the Lincoln Tunnel.
In recent court papers detailing corruption charges against members of the New York City Police Department, it was noted that a businessman “using his connections in local law enforcement agencies, was able to arrange for the closure of a lane in the Lincoln Tunnel and a police escort down that lane for a businessman visiting the United States.” If this is true, it is deeply troubling.
I am hereby directing the New York State and Port Authority Offices of the Inspector General to conduct a thorough examination of what, if any, role agents of the Port Authority played in the circumstances associated with these allegations. The NYPD has no jurisdiction within the tunnels boundaries. If members of the Port Authority or PAPD participated in any fashion – through purpose or neglect – the State will deliver immediate and severe consequences.
The State of New York holds the integrity of public service to the highest standard. When those who are sanctioned to uphold the law use their position for personal gain, it threatens all of us. We will simply not allow Port Authority facilities to be chips in some nefarious pattern of deceit.
Please ensure you are coordinating with the U.S. Attorney for the Southern District of New York and the Federal Bureau of Investigation before commencing any action.
Sincerely,
Andrew M. Cuomo
Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office
Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office
June 20, 2016
If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can have the force and effect of law
If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can have the force and effect of law
Roslyn Teachers Assn. v New York State Health Ins. Plan, 2016 NY Slip Op 04475, Appellate Division, Third Department*
June 19, 2016
Selected reports issued by the Office of the State Comptroller during the week ending June 18, 2016
Selected reports issued by the Office of the State Comptroller during the week ending June 18, 2016
These audits, summaries of which are set out below, are designed to assist schools improve their financial management practices and ensure proper policies and procedures are in place to protect public funds from waste, fraud and abuse. For additional background or a comment on a specific audit, contact Brian Butry, 518-474-4015 at the Office of the State Comptroller or email: bbutry@osc.state.ny.us
Addison Central School District – Financial Condition (Steuben County)
During the last three completed fiscal years (2012-13 through 2014-15), the board and district officials overestimated general fund appropriations by $7.3 million (9 percent) resulting in combined operating surpluses totaling $6.4 million. District officials used the operating surpluses to make interfund transfers totaling approximately $4 million and increase reserves by $1.6 million. As a result, four reserves with balances totaling $2.9 million (48 percent of total reserves) are overfunded and potentially unnecessary. In addition, $570,000 in appropriated fund balance was not needed to finance operations. These practices allowed the district to report year-end unrestricted fund balance at levels that essentially complied with the statutory 4 percent fund balance limit. However, the district’s recalculated unrestricted fund balance ranged between 16 to 18 percent of the ensuing year’s appropriations. As a result, the district’s tax levy was higher than necessary to fund operations.
The unrestricted fund balance for the district has consistently exceeded Real Property Tax Law limits. The district’s unrestricted fund balance was approximately $3.6 million (14 percent of the ensuing year’s budget) or approximately $2.6 million over the legally allowable limit and is projected to remain at nearly the same level at the end of 2015-16. Although the board and district officials annually appropriated a portion of fund balance towards the subsequent year’s budget, the total amounts appropriated were mostly not used because district officials overestimated appropriations. In addition, district officials consistently budgeted for expenditures that could have been paid for with reserve funds. Had district officials retained the same tax levy each subsequent year as in 2012-13, residents could have realized approximately $410,000 in cumulative tax savings.
Each year during the audit period (July 1, 2014 through November 9, 2015), district officials appropriated more fund balance than needed, which artificially reduced unrestricted fund balance to within the 4 percent statutory limit percentage. Instead of having operating deficits totaling $2.8 million for the period, as planned, the district’s net result of operations was a surplus of $705,000. In addition, district officials overfunded five of the six reserves as of June 30, 2015. Moreover, district officials did not use debt service funds to make payments on long-term debt. With the inclusion of the unused appropriated fund balance, the overfunded reserves and the unused debt service funds, the fund balance for the five years ranged from 26.7 percent to 29.4 percent of the ensuing year’s appropriations.
Although claims were generally supported by adequate documentation and were for appropriate purposes, they were not always audited and approved prior to payment. The business manager, who also serves as the district’s treasurer, prints signed checks prior to the claims auditor’s audit and approval of the corresponding claims. When signed checks are generated prior to the claims auditor’s audit and approval, there is an increased risk that improper claims could be paid by the district.
The district has no written plan that details the appropriate and necessary levels for reserve funds and prescribes how the reserve fund balances are to be monitored, analyzed and maintained. As a result, four of the district’s 11 reserve funds, totaling more than $6.8 million, may be overfunded or unnecessary. Additionally, district officials have not developed formal multiyear financial or capital plans, which would greatly benefit it in meeting its current and future obligations.
The board and district officials consistently overestimated appropriations. When the appropriated fund balance not needed to finance operations is included in unrestricted fund balance, the district’s recalculated unrestricted fund balance from 2012 to 2014 ranged from approximately $2 million (9 percent) to $2.2 million (11 percent), exceeding the statutory limit. This trend is projected to continue through 2015-16. The board and district officials have not properly managed four reserves that appear to be overfunded or contain funds that are improperly restricted by approximately $7.6 million, which is approximately 35 percent of 2015-16 budgeted appropriations. District officials also consistently budgeted for expenditures that could have been paid for with reserve funds. Had district officials maintained the same tax levy as in 2012-13, residents could have realized approximately $720,000 in cumulative tax savings.
The board consistently overestimated appropriations in the district’s adopted budgets. Although the district reported year-end unrestricted general fund balance at levels that essentially complied with the 4 percent statutory limit, the board adopted budgets which included appropriated fund balance and reserves that were not needed as funding sources because the board and district officials overestimated appropriations by an average of 8.8 percent over the last three fiscal years. As a result, the district experienced an operating surplus in 2011-12 and operating deficits in 2012-13 and 2014-15 that were significantly less than planned. When the unused appropriated fund balance was added back, recalculated unrestricted fund balance averaged about 8 percent of the ensuing year’s appropriations exceeding the legal limit.
The board has consistently overestimated appropriations in its adopted budgets by about 9 percent over the past three years. As a result, a significant portion of the fund balance appropriated in the general fund was not needed to finance operations and unassigned fund balance has exceeded the 4 percent legal limit from fiscal years 2012-13 through 2014-15. The district has reduced the reported level of year-end unassigned fund balance from 12 percent of the ensuing year’s budget at the end of 2012-13 to 8.6 percent at the end of 2014-15. However, when the unused appropriated fund balance was added back, the recalculated unassigned fund balance exceeded 15 percent of the next year’s appropriations in all three years.
Although the district has procedures specific to the maintenance of IT inventory, the board has not adopted an asset policy establishing capitalization or tagging thresholds, control over assets, or how to maintain records for these assets. Consequently, three assets valued at $1,650 could not be located and 21 assets valued at $69,370 were either not tagged or the asset tag numbers did not agree with the asset records. Furthermore, 10 assets purchased in 2015-16 valued at $57,573 were not recorded on the asset list and nine assets valued at $45,750 were listed as disposed of, but were still in service. Auditors found that 18 of 20 assets listed as disposed of, valued at $32,920, did not have documentation indicating authorization or approval.
The district’s unassigned fund balance has exceeded the 4 percent legal limit from fiscal years 2012-13 through 2014-15. At the end of 2014-15, the district’s fund balance was approximately $2.4 million, or 9.7 percent of the ensuing year’s appropriations. Although the district’s unassigned fund balance has exceeded the statutory limit for the past three fiscal years, the board increased the tax levy from $7.8 million in 2012-13 to $8.3 million in 2015-16, an increase of about 6 percent.
District officials ensured that retiree health insurance contributions were properly billed, collected and deposited. Although the account clerk performs most of the duties, district officials implemented proper compensating controls to ensure bills are accurate, money is collected from all retirees and money is deposited into district bank accounts.
The district has overestimated appropriations in the adopted budgets by about an average of 14 percent annually over the past three years. As a result, a significant portion of the fund balance appropriated in the general fund was not needed to finance operations and unassigned fund balance has exceeded the 4 percent legal limit each of the last three fiscal years. The district reduced the reported level of year-end unassigned fund balance from 9.3 percent at the end of 2012-13 to 6.9 percent at the end of 2014-15, but when the unused appropriated fund balance is added back, the recalculated unassigned fund balance exceeds 20 percent of the next year’s appropriations for each of the three years.
The district has not correctly recorded and reported the composition of its fund balance. Since the fiscal year ending June 30, 2013, the treasurer has recorded and reported the amount of unrestricted fund balance that exceeds the statutory limit at the end of each fiscal year as “other restricted fund balance” to keep the unrestricted fund balance within the limit. This accounting practice understates the true amount of the general fund’s unrestricted fund balance and circumvents the statutory limit the district is permitted to retain. As a result, over the four past fiscal years the district retained unrestricted fund balance amounts that ranged from 15 percent to 34 percent of the ensuing year’s appropriations.
Although the board has developed a purchasing policy and district officials have developed corresponding regulations, they do not provide guidance for seeking competition when procuring professional services. The policy and regulations do not indicate when, or at what monetary threshold, it is appropriate to use written requests for proposals, written quotes or oral quotes. Additionally, the policy and regulations do not outline the specific documentation requirements to be used during the solicitation process.
The district has accumulated unrestricted fund balance that exceeds the statutory limit by approximately $977,000 (nearly 12 percent) and has levied more taxes than were needed to fund operations during the 2013-14 through 2015-16 fiscal years. The board also overestimated appropriations in the 2012-13 through 2014-15 budgets by more than $2.3 million (10 percent). The district’s budgeting practices made it appear that they needed to both raise taxes and appropriate fund balance and reserves to close projected budget gaps, despite an operating surplus of $51,390 during the 2012-13 fiscal year and smaller-than-planned operating deficits of $24,169 in 2013-14 and $39,578 in 2014-15.
June 18, 2016
Daughter alleged to have stolen over $148,000 of New York State Public Employees’ Retirement System funds following her failure to report her father’s death to the System
Daughter alleged to have stolen over $148,000 of New York State Public Employees’ Retirement System funds following her failure to report her father’s death to the System
Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns
Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns
Preet Bharara, the United States Attorney for the Southern District of New York, Thomas P. DiNapoli, New York State Comptroller, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation (“IRS-CI”), Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation (“FBI”), and George Beach, Superintendent, New York State Police reported the arrest of Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (“MVFD”), on charges of wire fraud and subscribing to false tax returns.
Klein, Fire Department’s elected treasurer, is alleged to have stolen $5.7 million of the Fire Department’s monies over a period of more than 13 years.
Requiring employees to submit to a “dog-sniffing test” for illegal drugs
Requiring employees to submit to a “dog-sniffing test” for illegal drugs
June 17, 2016
The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum
The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum
Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894,
The Commissioner explained that in his grievance Nadolecki’s claimed that the school district violated the provisions of the collective bargaining agreement and these was the same issues he presented in his appeal to the Commissioner.
* In contrast to SDHR’s dismissing Nizamuddeen’s complaint on the merits, had SDHR dismissed his complaint for “administrate convenience” or had Nizamuddeen, prior to the hearing before the SDHR hearing officer, successfully requested that SDHR dismiss his complaint and annul his “election of remedies” to submit to the jurisdiction of SDHR, he could have pursued his Human Rights Law claim in a judicial forum.
June 16, 2016
Consolidation of Investigator titles in State Department and Agencies
Consolidation of Investigator titles in State Department and Agencies
New York State Department of Civil Service
General Information Bulletin No. 16-03, Investigator Titles Consolidation
General Information Bulletin No. 16-03 is posted on the Internet at:
Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*
The Public Employment Relations Board directed the School
District to rescind its June 2003 memorandum in which it notified
employees and retirees that it was terminating its practice of reimbursing
Medicare Part B premiums.
In a companion case PERB ruled that the school district must
reinstate its former practice of reimbursing retirees for Medicare Part B
premiums -- the same relief sought in the current proceeding.
The Appellate Division noted that PERB's order in the
companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op
04039 (2013)]. Accordingly, Bryant received the full relief challenged by School
District in the current appeal as a result of that determination, .
Accordingly, the court ruled that the instant appeal is now moot.
As to argument advanced under color of an exception to the
mootness doctrine, the Appellate Division held that the claimed exception “does
not apply in that, although the issue advanced herein may recur and is
significant, it is not likely to evade review.”
* The underlying
facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134
[2005]) and in the companion case brought by the Chenango
Forks Central School
District (Matter
of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd.,
95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip
Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the
Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm
Health insurance company’s claim for reimbursement for certain medical cost it incurred from a “no fault” automobile insurance carrier denied
Health insurance company’s claim for reimbursement for certain medical cost it incurred from the “no fault” automobile insurance carrier denied
Aetna Health Plans v Hanover Ins. Co., 2016 NY Slip Op 04658, Court of Appeals
In this action brought pursuant to the Comprehensive Motor Vehicle Reparations Act [Insurance Law §5101, et seq. -- the "No-Fault" Law] Aetna Health Plans alleged that it paid certain bills that should have been paid by Hanover Insurance Company, the no-fault insurer involved in this action, that were submitted to Aetna by the medical providers. Ultimately Hanover refused to reimburse Aetna for all of the payments Aetna made to the medical providers.
The resolution of this action by the Court of Appeals may, under certain circumstances, impact on the administration of General Municipal Law §§207-a and 207-c with respect to medial expenses paid by a municipality on behalf of a police officer or firefighter injured in the line of duty.
Further, these sections provide that “Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and or for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party.”