Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

2015 NY Slip Op 03075, Appellate Division, First Department

The Commissioner of the New York State Department of Health adopted an Administrative Law Judge's recommendation to sustain the three charges alleging patient abuse and/or neglect by a certified nurse's aide [Aide]. The Aide appealed the Commissioner's determination but the Appellate Division sustained the Commissioner’s finding that the Aide was guilty of these three charges alleged in the notice of discipline.

The Appellate Division said that there was no basis for disturbing the ALJ’s determination with respect to the credibility of witnesses, citing Berenhaus v Ward, 70 NY2d 436.

The court found that there was substantial evidence in the record to support the ALJ’s findings including:

1. Consistent testimony from several witnesses;

2. Photographs of the patient’s bruises; and

3. The facility's clinical records.

Further, the Appellate Division said that the Aide’s right to administrative due process was not violated as the result of the patient's absence at the hearing as the record supports the ALJ’s finding that the patient was intimidated and was afraid to testify.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03075.htm

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

2015 NY Slip Op 03214, Appellate Division, Third Department

A correction officer [CO] at a county correctional facility sustained a concussion when he hit his head on a wall while attempting to restrain an inmate. Treated for symptoms attributed to a mild traumatic brain injury and post-concussive disorder, he began receiving benefits pursuant to General Municipal Law §207-c.*

Subsequently the County Sheriff [Sheriff] offered CO the opportunity to return to work on light duty status where he would be assigned to “a sitting job with no inmate contact and no lifting, pushing or pulling any objects in excess of two pounds.” CO refused to accept the light duty assignment and the matter was submitted to an administrative hearing in accordance with the relevant procedures set out in the collective bargaining agreement applicable to CO.

The Hearing Officer's recommendation: CO should be returned to light duty. The Sheriff adopted the Hearing Officer’s recommendation and ordered CO to report as assigned.** CO appealed the Sheriff’s decision.

The question before the Appellate Division: Was the Sheriff's determination supported by substantial evidence?

The Sheriff’s expert, a neuropsychologist, conducted an independent medical examination of CO that included a number of neuropsychological tests, had opined that CO could return to work, testifying that in his opinion”

1. CO had exerted "suboptimal effort" during the testing, and that he found nothing that would prohibit CO  from returning to work based on cognitive and psychological issues; and

2. After a follow-up examination of CO, Sheriff’s expert again opined that CO could return to work.

In contrast, CO’s, also a neuropsychologist, testified that CO displayed deficits in visual and mental processing, planning, language comprehension, attention, concentration and memory and in her opinion CO “was not able to work in the proposed light duty position.”

The Appellate Division explained that while CO’s expert did not agree with the Sheriff’s expert, the Hearing Officer was entitled to weigh the conflicting medical opinions and determine which expert’s testimony to credit.

Although CO had argued that the Sheriff’s expert’s opinion was based on unreliable test results and should not have been credited, the Appellate Division said that the Sheriff’s expert did not indicate that the test results were unreliable, but that the test results showed that CO's claims were unreliable.

The court dismissed CO’s appeal, holding that where the appointing authority’s determination is supported by substantial evidence, as it was in this case, it will not be disturbed.

* §207-c of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of police officers and other law enforcement personnel suffering injuries or illness incurred in the performance of duties.

** §207-c 3 of the General Municipal Law provides, in pertinent part that in the event the individual is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and, in the opinion of such health authorities or physician, is unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, “to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him, provided, however, that such light duty shall be consistent with his [or her] status as a policeman...” [emphasis supplied].  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03214.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Click on the URL links highlighted in color to access the full report

State Departments and Agencies:

State Department of Education – Whitestone School for Child Development

For the three fiscal years ended June 30, 2013, auditors identified $154,563 in reported costs that did not comply with SED requirements and recommended such costs be disallowed. These ineligible costs included $115,296 in personal services costs and $39,267 in other than personal service costs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s38.pdf

Department of Motor Vehicles – Case Advance Accounts

DMV has designed effective internal controls over accounts to ensure that funds are properly accounted for and payments are only made for appropriate business purposes. Tests showed these controls have generally operated as intended. However, auditors also found that DMV’s three cash advance accounts are overfunded in comparison to their apparent business needs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s65.pdf

Department of Transportation – Lease and Permit Revenues

An initial report, issued in March 2013, determined DOT was not collecting all unpaid lease and permit fees. At the time of the audit, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. DOT needed to improve communications between and guidance given to the units that issue permits and that bill permit holders. In a follow-up report, auditors determined that DOT implemented each of the four recommendations from the initial report.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/15f1.pdf

DeVry College– Tuition Assistance Program

DeVry was overpaid $758,293 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 14 students who received awards but had not demonstrated their academic preparedness for TAP awards. Twelve of these students did not have certificates of graduation, or the recognized equivalent of such a certificate, from a U.S. high school. The two other students had completed online study from a private school located in another state. Additional incorrect certifications include four students who did not meet the full-time requirements and three students who were not in good academic standing.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/14t2.pdf

City Universityof New York – Time and Attendance for Public Safety Staff

Inadequate internal controls over time and attendance for public safety officers were identified. The overtime process could result in the payment of unauthorized and excessive overtime cost

URL link:  http://osc.state.ny.us/audits/allaudits/093015/13s65%20.pdf

Municipalities:

Village of Endicott – Budget Review

The significant revenue and expenditure projections in the tentative budget for the general, electric, library and parking funds are reasonable. The water and sewer funds’ tentative budgets are not balanced and include deficits of $257,000 and $155,000. Village officials plan to raise water and sewer rates to make up the difference. The village’s tentative budget exceeds the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/endicott_br.pdf

Village of Hempstead– Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, based on the 2015-16 proposed budget, the village will have exhausted 91 percent of its taxing authority. The village’s ability to rely on real property taxes as an increased revenue source in the future is limited. The village’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/hempstead_br.pdf

City of Lackawanna– Police and Fire Department Work Hours

Police department overtime costs and overtime hours have steadily increased over the last several years. In addition, fire department time and attendance records were not always accurately maintained.

URL link:  http://www.osc.state.ny.us/localgov/audits/cities/2015/lackawanna.pdf

Town of Willing – Justice CourtOperations

The prior town justice did not accurately record and report money to the Justice Court Fund in a timely manner. Additionally, the prior justice did not prepare monthly bank reconciliations, properly account for bail money held by the court or accurately report fines and surcharges to the Department of Motor Vehicles.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/willingjc.pdf

Town of Wright – Financial Operations

The board did not properly manage the town’s general fund balance from 2011 through 2014. As a result, the board accumulated general fund balance while raising taxes. However, beginning with the 2015 budget, the board plans to reduce the general fund balance to benefit taxpayers.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/wright.pdf

School Districts

Alfred-Amond CSD – Financial Software Access and Monitoring

Although a previous audit recommended that the district adopt policies and procedures that restrict users’ financial software application permissions to only those functions that are necessary for their job duties, the district did not act on this recommendation. As a result, auditors identified 24 user accounts that had inappropriate or unnecessary access rights or permissions. Auditors also confirmed that the former district treasurer attempted to manipulate her paid leave accruals by adding 60 unauthorized sick days valued at approximately $10,000. District officials notified auditors that they discovered through an informal review of leave records that the former treasurer attempted to manipulate her paid leave records. District officials corrected the leave records, and the former treasurer did not receive any undue benefit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/alfredalmond.pdf

Beachon City School District – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/beacon_br.pdf

Clhaarlotte Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/charlottevalley_br.pdf

Chenango Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/chenangovalley_br.pdf

East Moriches UFSD – Budget Review

The significant revenue and expenditure projections in the tentative budget are reasonable, except for appropriations for tuition fees for high school students, charter school tuition fees and social security and Medicare taxes. In addition, revenues from tuition payments received from other districts may be overestimated. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eastmoriches_br.pdf

Eldred CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the district’s proposed budget for health insurance is $164,625 higher than supporting documentation for health insurance estimates. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eldred_br.pdf

Favius-Pompey CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit. 

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/fabiuspompey_br.pdf

Green Tech High Charter School – Resident Tuition Billing

Auditors found $306,175 in school district billings were not paid in a timely manner because resident school districts denied payment due to lack of proof of residency or other enrollment issues.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/greentechcharter.pdf

Niagara-Wheatfild CSD – Financial Condition

A delay in state aid reimbursements for the Tuscarora Indian School has caused cash flow problems for the district. Without the aid, the district used general fund resources and cash flow borrowing to finance operations. The district has also issued a significant amount of short-term cash flow borrowing during the past three fiscal years.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/niagarawheatfield.pdf