An individual may be subjected to disciplinary action for alleged off-duty misconduct having a clear nexus to his status as an employee

During an investigation by the New York City Department of Education's [DOE] Office of Special Investigations [OSI] into a complaint that confidential student information had been posted on the Internet, the plaintiff [Petitioner], a DOE employee, acknowledged that he was involved in posting the information at issue on the website of United Federation of Teachers (UFT) Solidarity, "a political caucus within the UFT."

Contending that OSI has no jurisdiction to investigate his alleged misconduct because he undertook this activity as a private citizen and education activist, not in his capacity as a DOE employee, Petitioner filed a CPLR Article 78 action asking the court to annul DOE's determination that he had violated Chancellor's Regulation A-820 and the federal Family Educational Rights and Privacy Act* [FERPA].

The Appellate Division said that Petitioner's argument that OSI has no jurisdiction in this matter "is unavailing," opining that Petitioner's misconduct has a clear nexus to his status as a DOE employee. Citing Board of Educ. City of N.Y. v Hershkowitz, 308 AD2d 334, leave to appeal dismissed 2 NY3d 759, the Appellate Division explained that OSI is charged with investigating misconduct within the City of New York school district, which is not limited to misconduct committed by a DOE employee acting within the scope of his employment.

The court noted that OSI had rationally determined that by posting the confidential student information at issue, which included transcripts, attendance records, and grade-change records, Petitioner had violated the FERPA and Chancellor's Regulation A-820, which conforms to federal regulations promulgated pursuant to FERPA.**

* See 20 USC § 1232g[b][2]. 

** See 34 CFR part 99.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05703.htm

 

Sewer overflow problems

New York State Comptroller Thomas P. DiNapoli notes that at least 20 percent of the publicly-owned sewer systems in New York state were not reporting overflow events or registered with the electronic notification system (NY-Alert) that tracks those events, potentially putting the public at risk, according to an audit of the NYS Department of Environmental Conservation DEC] released on October 19, 2020.

Two laws related to wastewater discharges protect New York’s natural resources and the health of its residents: the 2013 Sewage Pollution Right to Know Act, which requires public reporting of sewage discharges; and the State Pollutant Discharge Elimination System (SPDES) program, which controls permitted discharges into public waterways.

The Right to Know Act requires publicly owned water treatment works and publicly owned sewer facilities to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery and to notify the public and nearby municipalities within four hours of discovery. Exposure to untreated sewage can cause serious illnesses such as dysentery, hepatitis, cholera and cryptosporidiosis, according to the U.S. Environmental Protection Agency.

Auditors found that documentation supporting when overflows occurred varied by facility but included automated emails, phone calls, and text messages from the facilities’ monitoring systems or time-stamped screenshots of the monitoring system dashboard, and logbook entries. Some facilities were unable to provide time-stamped documentation. Due to these limitations, auditors could not verify the timeliness of 37 percent of the events. Of the other events, 18 percent were not reported within two hours and 10 percent were not reported within four hours, as required.

DEC officials generally agreed with the recommendations and indicated actions they would take to implement them. Their full comments are included in the report posted on the Internet at https://www.osc.state.ny.us/files/state-agencies/audits/pdf/sga-2021-19s54.pdf?utm_medium=email&utm_source=govdelivery.

School District audits released during the week ending October, 16, 2020

New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued during the week ending October 16, 2020

Broadalbin-Perth Central School District – Cash Management (Fulton County, Saratoga County and Montgomery County) - District officials did not develop and manage a comprehensive investment program. As a result, officials did not maximize interest earnings for the district. In addition, officials did not formally solicit interest rate quotes or prepare cash flow forecasts to estimate the amount of funds available for investment. Officials earned interest totaling $40,652 during the audit period. However, auditors determined they could have earned another $159,100 had officials used other available investment options.

Mahopac Central School District – Non-instructional Payroll (Putnam County) - The transportation department’s payroll was not adequately approved, supported and documented. In addition, a staff person received overtime pay that was not properly supported by documentation.

Minerva Central School District – Financial Condition Management (Essex County and Warren County) - District officials overestimated appropriations by a total of more than $2.1 million from 2016-17 through 2018-19 and annually appropriated fund balance that was not used to finance operations. Unrestricted fund balance ranged between 18.5 and 31.1 percent of ensuing years’ appropriations, exceeding the 4 percent statutory limit. In addition, district officials did not develop a comprehensive multiyear financial plan.

New York Mills Union Free School District – Procurement (Oneida County) - District officials did not always seek competition for purchases that are not subject to competitive bidding. Officials also did not comply with the district’s procurement policy. Auditors determined the purchasing agent did not effectively perform her procurement duties. In addition, officials did not always seek competition for professional services. No competition was sought for the services procured from five professional service providers totaling $89,421. No written or verbal quotes were obtained for the purchase of goods and services from 13 vendors who were paid $73,032.

 

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