New York State's Comptroller releases audits

On May 2, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in COLOR below to access the full text of the audit report posted on the Internet.

 

Town of DeWitt – Planning and Zoning, and Recreation Departments’ Collections (Onondaga County)

Town officials did not effectively manage the planning and zoning, and recreation departments’ cash collections. As a result, auditors could not confirm that all collections received were deposited. Of the 40 planning and zoning department fees reviewed totaling $73,732, 18 were not in accordance with the board’s fee structure, and 16 were not deposited in a timely manner. Of the 463 recreation department fees reviewed totaling $56,262, 176 were not in accordance with the fee structure used. Of the 177 payments made with cash or check, 40 were not deposited in a timely manner. Department collection activities were not properly recorded or reviewed, and records were not always maintained. In addition, users could delete records from the financial system, and employee collection activities were not properly segregated. Employees were allowed personal use of town rentals at no charge, resulting in a loss of collectible town revenues.

 

Pembroke Central School District – Investment Program (Genesee County)

District officials did not develop and manage a comprehensive investment program. From Jan. 1, 2022 through April 30, 2023, the district earned investment earnings totaling over $153,000 from money on deposit in its 15 bank accounts at two financial institutions, which had an average of $13.4 million available for investing. Had officials considered other legally permissible investment options, the district may have earned approximately $390,000. District officials did not create, and the board did not adopt, a comprehensive investment program with written procedures for the investment of district funds. The district did not prepare monthly cash flow forecasts to estimate funds available for investment, monitor investments or formally solicit interest rate quotes.

 

Pembroke Central School District – Extra-Classroom Activity Funds (Genesee County)

District officials did not properly account for all extra-classroom activity (ECA) funds and, because some funds were held for substantial amounts of time before they were deposited, collections were not appropriately safeguarded. As a result, collections were not recorded and deposited in a timely manner, and unsupported disbursements were authorized and processed. As such, auditors could not determine whether all ECA funds were properly used.

 

Ticonderoga Joint Town/Village Fire District – Board Oversight (Essex County)

While the board monitored financial activity and ensured appropriate records were maintained, they did not ensure required annual audits were completed and annual update documents (AUD) were filed in a timely manner. The 2018 independent annual audit of the district’s records was completed 1,045 days late and as of Oct. 31, 2023, audits for 2019 through 2022 were not completed and were already between 1,220 and 124 days late. AUDs were filed as many as 1,257 days late. There was no independent verification that funds have been accounted for and transparency was diminished.

 

Village of Unadilla – Procurement (Otsego County)

Village officials did not always use a competitive process when purchasing goods or services, as required by state law or the village’s procurement policy. Of the 20 purchases reviewed totaling $469,283, village officials did not seek competition for 18 purchases totaling $440,056. By not seeking competition, the board has less assurance that the village obtained the most favorable terms and conditions in the best interest of its taxpayers. Competition was not sought for: any of the five purchases subject to competitive bidding requirements during the audit period totaling $314,619; 10 purchases totaling $57,898 which were subject to the procurement policy; and insurance coverage and professional services totaling $67,539.

 

###

 

Reviewing a federal district court’s granting respondent's motion to dismiss a quid pro quo and related sexual harassment complaints

The Circuit Court of Appeals, Second Circuit, said in order to survive a motion to dismiss, a complaint’s “allegations must meet the plausibility standard set out in Ashcroft v. Iqbal, 556 U.S. 662. Citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, the Second Circuit then opined "to state a quid pro quo sexual harassment the plaintiff must show a tangible employment action, i.e., that an explicit alteration in the terms or conditions of employment resulted from her refusal to submit to [a] sexual advance.”

In this action the court concluded that Plaintiff's quid pro quo claim failed because she made only “conclusory allegations of implied sexual advances” in that Plaintiff's description of the Respondent's conduct creates no more than “a sheer possibility that [the Respondent] has acted unlawfully.” In the words of the court, Plaintiff's claim "is based on a single incident in which [Respondent] allegedly invited her to see a corporate apartment on their way to lunch, asked her repeatedly to join him in the apartment’s bedroom, and then inquired over lunch whether she was married or had a boyfriend." The Circuit Court also noted that Plaintiff's amended complaint "contains no allegations of any sexual comments or physical contact, never alleges that [Respondent] engaged in any other sexual conduct towards Reed or anyone else, and makes no other allegations sufficient to support an inference that [Respondent's] conduct was sexual.

Addressing Plaintiff's "Retaliation and Constructive Discharge" allegations, the Circuit Court opined that "[F]or a retaliation claim to survive ... a motion to dismiss, the plaintiff must plausibly allege that: ... defendants discriminated — or took an adverse employment action — against [her], (2) because [she] has opposed any unlawful employment practice.” As the Second Circuit held in Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, “[T]he plaintiff need only have had a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII”.* Further, the Circuit Court noted “The reasonableness of the plaintiff’s belief is to be assessed in light of the totality of the circumstances.” "... mere subjective good faith belief is insufficient; the belief must be reasonable and characterized by objective good faith.”

Finding the Plaintiff "failed to allege adequately that she had a reasonable, good-faith belief that [Respondent's] conduct violated the law or that her conduct constituted opposition to unlawful conduct" and that in her formal complaint "[Plaintiff] failed to allege that [Respondent] took an adverse employment action against her for filing it.

Finally, the Circuit Court opined that Plaintiff's allegations that "new monitoring programs appeared on her computer" do not suffice for a claim of retaliation because Plaintiff does not plausibly allege that the monitoring was so severe that “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”. Accordingly, the Circuit Court affirmed the district court’s dismissal of Plaintiff's constructive discharge claims as well.

* See, also, Kessler v. Westchester County. Dep’t of Social Services, 461 F.3d 199.

Click HERE to access the opinion of the Circuit Court of Appeals posted on the Internet.

Correction officer terminated after being found guilty of "undue familiarity" with an incarcerated person

 

A New York City correction officer [CO] charged with "undue familiarity" after giving an incarcerated person [detainee] gifts and making false and, or, misleading statements to investigators about such alleged misconduct. New York City Office of Administrative Trials and Hearings' Supervising Administrative Law Judge Joan R. Salzman recommended that appointing authority terminate CO after finding CO guilty of such offenses.

CO was captured on surveillance video greeting the detainee in a friendly manner called “dapping”* and detainee giving CO three packages opaquely wrapped in brown paper, including one package CO then concealed inside his uniform shirt.

During the employer's investigation, CO told investigators in an MEO 16 interview that he could not recall what food he gave to this detainee, who that very day had headbutted another correction officer and was known to CO as the assaultive, highest-ranking gang member in an area referred as the North Infirmary Command, "even though one would expect the CO to recall what he gave to this notorious detainee" directly after a memorable assault by this very detainee on a colleague of CO.

Instead, CO told investigators and testified at trial that he gave two servings of extra chicken to the detainee (even though it was “Chicken Sunday,” and chicken had already been served that day), but CO could not recall whether the items in his uniform shirt consisted of a banana or packets of sugar or packets of mustard.

CO told investigators that he gave food items to this detainee in order to “keep the peace,” and that he had done so on a few occasions with this detainee previously. At hearing, however, CO deviated from his prior statements, and testified that he gave extra food because detainee was sick and hungry, and that he had never previously given this detainee any food.

The Supervising ALJ found CO’s testimony problematic, evasive, exceptionally vague, and incredible. Judge Salzman concluded that CO’s misconduct breached the good order and discipline required in a jail facility, and after weighing the mitigating and aggravating factors, recommended termination.

* "Dapping" is a term used to describe "two men tapped their opposite shoulders together in a half-hug and shaking hands".

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

==================================

A Reasonable Disciplinary Penalty Under the Circumstances

An e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html