State Comptroller DiNapoli and Uster County Executive Metzger report no evidence of any crimes having been committed by former Ulster County Commissioner of Finance Burton Gulnick Jr. in performing his official duties

On November 22, 2024, State Comptroller DiNapoli and Uster County Executive Metzger announced that there is no evidence of any crimes having been committed by former Ulster County Commissioner of Finance Burton Gulnick Jr.

A forensic examination and investigation of former Commissioner of Finance Burton Gulnick Jr. found no evidence of any crimes committed by Gulnick while he served in his government role, but did find weaknesses in county procedures that could leave it vulnerable to fraud, State Comptroller Thomas P. DiNapoli said.

“A thorough investigation by my office found no evidence that the former Commissioner committed fraud in his public position,” DiNapoli said. “Despite this, we have made several recommendations to Ulster County officials to strengthen financial practices and guard against potential fraud in the future. I thank County Executive Jen Metzger for referring this matter to my office and assuring the county’s full cooperation in this examination. I also thank County Comptroller March Gallagher, District Attorney Emmanuel Nneji, and the New York State Police for their work and assistance throughout our inquiry.”

“It was pretty shocking to learn less than three months after coming into office that the County's long-time top finance official was accused of pilfering funds from another organization, and I was very worried that he could have exploited his County position to steal from taxpayers," said Ulster County Executive Jen Metzger. "It comes as a great relief that the State Comptroller's Office found no evidence of fraud after an exhaustive 19-month investigation, and the comprehensiveness of the probe gives us great confidence in the findings. I thank Comptroller Tom DiNapoli and his team for their assistance in helping us to bring closure to this chapter and I will continue to do everything in my power to ensure the highest level of fiscal responsibility in Ulster County government.”

“I truly appreciate New York State Comptroller DiNapoli and his investigative team for reviewing Ulster County finances considering the criminal actions by our former Commissioner of Finance at other organizations,” said Ulster County Comptroller March Gallagher. “From the day I took office, former Commissioner of Finance Gulnick routinely resisted my information and access requests. I look forward to working with the Executive and Legislature to address the State Comptroller’s internal controls recommendations, particularly in the areas of cash collection and recording.”

In February 2024, Gulnick was sentenced to two years in jail after pleading guilty to stealing over  $100,000 total from local not-for-profit, Hurley Recreational Association, and from former County Executive Michael Hein’s campaign account. Gulnick had been removed from his position with the Association in February 2023 after the New York State Police opened an investigation into discrepancies in the Association’s finances. Unrelated to his positions with the Association or the campaign, at the time of his crimes Gulnick served as Ulster County’s Commissioner of Finance.  

After his crimes became known, Gulnick chose to resign rather than be placed on leave. In light of the allegations and Gulnick’s position in the county, County Executive Metzger requested DiNapoli’s office investigate Gulnick’s activities in his role at the county to determine if he had engaged in fraud against the public.

County officials initially raised the following concerns for review: potential time theft by one of Gulnick’s employees and concerns regarding a $120,000 payout from the county to Gulnick for unused accruals upon his separation from employment; potential theft from estate/trust accounts administered by the county; potential conflicts related to vendors hired in relation to estates administered by the county; and possible theft of cash collections from departmental revenues, including potential theft associated with real property tax collections.

These allegations, as well as various others which arose during the course of the examination, were fully investigated and no evidence was provided or uncovered to support the allegations of fraud. 

DiNapoli’s office reviewed and analyzed thousands of records, including an in-depth examination of county financial and bank records, estate files, Surrogate’s Court records, payroll records, and other pertinent documents. Additionally, investigators conducted dozens of interviews with relevant county officials and employees.

While no evidence of fraud was discovered, DiNapoli’s investigators found areas where the county could improve its policies and procedures to strengthen controls and safeguard county assets. 

DiNapoli recommended Ulster County:

• Ensure all supervisory adjustments or entries to employee timesheets and/or hours worked be adequately supported with appropriate documentation indicating the reason for the adjustment, entry, or modification;
• Review and revise the Personnel Policy Manual section related to management accruals and payout calculations to ensure equal application of the policy throughout the county;
• Develop policies and procedures over the administration of estates. This should include recordkeeping and reporting requirements, disclosure of conflicts, and vendor procurement for the estates;
• Ensure an estate file with sufficient supporting documentation is maintained for each estate administered by the county, and disbursements from each estate, as well as commission revenues, if applicable, are properly reflected in the county’s financial accounting system;
• Review the policies and procedures for the collection of parking fees at the county parking lot to maximize revenue and safeguard cash; and
• Ensure segregation of duties for all points of cash collection and reporting, including parking lot and real property installment payments.

In response, County Executive Metzger thanked the Comptroller’s office for its comprehensive investigation and agreed with the Comptroller’s findings and recommendations. Specifically, Metzger advised that in response to the recommendations:

• All supervisory employees were notified that they must enter a justification in the “notes” field for all manual time punches. Ulster County Information Services is working to implement software updates to the county’s timekeeping system so that the “justification” field must be filled out when supervisory adjustments are made to employee timesheets.
• The personnel director, with input from the county comptroller, will issue guidance to clarify payout calculation procedures and ensure a uniform application of those procedures across all county departments.
• The commissioner of finance will develop written, standardized policies and procedures for the administration of estates.
• The county will ensure all estates files contain sufficient supporting documentation, and all commission revenues are properly reflected in the county’s financial system.
• The county will review its policies and procedures for the collection of parking fees at the County Office Building.
• The county will ensure segregation of duties for all points of cash collection and reporting with regard to parking lot fees and real property installment payments.

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 investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Failure to exhaust administrative remedies held critical to a party filing a petition pursuant to Article 78 of New York State's Civil Practice Law and Rules

Supreme Court granted the motion of Board of Education of the City School District of the City of New York [DOE] to dismiss the Plaintiffs' petition to annul votes of the Panel for Education Policy [PEP] changing the utilization of New York City school buildings in Brooklyn and Queens because of Plaintiff's alleged failure to comply with provisions of the Education Law and [DOE] Chancellor's Regulation A-190.

Plaintiff appealed the Supreme Court's ruling.

The Appellate Division, citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, and Mulgrew v Board of Educ. of the City School Dist. of the City of N.Y., 88 AD3d 72, unanimously affirmed DOE's motion, without costs, opining "Supreme Court properly dismissed this proceeding based on [Plaintiffs'] failure to exhaust their administrative remedies, .

The court explained that Plaintiff's CPLR Article 78 petition challenged "the determination to locate or co-locate a charter school within a public school building . . . that has been approved by the board of education" for both buildings, which "may be appealed to the commissioner" of the New York State Department of Education under Education Law §310 (Education Law §2853[3][a-5]).

Thus, as shown by the DOE's exhibits, which included several decisions of the Commissioner of Education reviewing "the adequacy of educational impact statements and building usage plans, as well as compliance with procedural requirements, in challenges to PEP votes approving charter school co-locations in the City of New York", Petitioners' claims cannot be brought under CPLR Article 78, since they "can be adequately reviewed by appeal to a court or to some other body or officer", citing Education Law §§2590-h[2-a][b][i]-[vii], 2853[3][a-3][2][A]-[F].

Plaintiffs' had contended that the educational impact statements failed to adequately address the impact on class sizes. However, said the Appellate Division, "Even if this were such a violation", Plaintiffs would still be required to exhaust their administrative remedies by appealing to the Commissioner of Education.

In the words of the Appellate Division: "Contrary to the Plaintiffs' contention, the petition does not raise a pure question of law, as it challenges the facts underlying the DOE's assumptions of projected class size for the public schools to be housed with the co-located charter schools, and raises other factual allegations related to safety and traffic that they claim the DOE overlooked or insufficiently addressed, among other things".

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

 

Standing to file a petition pursuant to Article 75 of the CPLR seeking to modify an arbitrator's award

Section 7511(a) of Article 75 the New York State Civil Practice Law and Rules [CPLR] provides, in pertinent part, that "[a]n application to vacate or modify an [arbitrator's] award may be made by a party within ninety days after its delivery to him". 

Individual members of Corrections Unit 7800-09 [Corrections Unit], a collective bargaining unit [CBA] consisting of persons employed in certain titles by the Onondaga County Sheriff's Department are the Petitioners in this Article 75 action.

In the words of the Appellate Division: "Here, the CSEA brought the grievance on behalf of County employees covered by the CBA. The CBA provides that an employee may submit their own grievance to the County, however, it permits only the CSEA to submit a class action grievance". 

The CBA further provides that the CSEA may request arbitration with respect to a grievance, but no provision in the relevant CBA permits an employee to request arbitration, nor is there any provision in the controlling CBA that makes the employees a party to the collective bargaining agreement. Further, neither the Petitioners nor the Corrections Unit participated in the relevant arbitration and nothing in the record suggests that the Corrections Union instructed the CSEA to act on its behalf."

Accordingly, the Appellate Division concluded that the Petitioners in the instant appeal were not parties in the arbitration and thus they do not have standing to file a petition seeking to modify the arbitrator's award".

The Appellate Division's decision is set out below:

Matter of Brockway (County of Onondaga)

2024 NY Slip Op 05745

Decided on November 15, 2024

Appellate Division, Fourth 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 November 15, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, NOWAK, AND HANNAH, JJ.

819 CA 23-01882

[*1]ADAM BROCKWAY, ET AL., PETITIONERS-APPELLANTS, AND COUNTY OF ONONDAGA, RESPONDENT-RESPONDENT.

THE TUTTLE LAW FIRM, CLIFTON PARK (JAMES B. TUTTLE OF COUNSEL), FOR PETITIONERS-APPELLANTS.

ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MICHELLE K. DEKAY OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (Danielle M. Fogel, J.), entered October 2, 2023. The order dismissed the petition to modify an arbitration award.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners are individual members of Corrections Unit 7800-09 (Corrections Unit), a collective bargaining unit consisting of persons employed in certain titles by the Onondaga County Sheriff's Department. Prior to January 30, 2019, the Corrections Unit was a part of the much larger bargaining unit, known as the Onondaga Local 834 of Civil Service Employees Association, Inc. (CSEA), which included virtually all employees of respondent County of Onondaga (County). In early 2020 and in response to the COVID-19 pandemic, the County closed its offices and facilities in whole or in part and instituted a series of measurements to address the emergency situation. The County required some County employees, however, to continue to work because they were deemed essential to County operations. Thereafter, the CSEA filed a grievance seeking additional compensation for covered employees who were required to report to work at County operations during emergency conditions, upon allegations that the employees were entitled to such compensation pursuant to a provision in the collective bargaining agreement between the CSEA and the County (CBA). The CSEA and the County, however, had entered into a Memorandum of Agreement (MOA) during the pandemic providing that employees would receive the "salary and/or regular daily wage or base rate of employees in the CSEA Bargaining Unit(s) through March 31, 2020 due to COVID 19, if employees in the CSEA Bargaining Unit(s) [were] scheduled to work or stand by from home by the County." The MOA further provided that it superseded all language in the CBA "as it relates to employee compensation and work assignments through March 31, 2020." After the CSEA and the County were unable to resolve the grievance, a demand for arbitration was filed by the CSEA. After a hearing, the arbitrator denied the grievance, finding, in relevant part, that the MOA superseded the relevant provision in the CBA. Petitioners assert that the CSEA's counsel's office advised the Corrections Unit that the County considered the arbitrator's award to apply to the Corrections Unit as well as the larger CSEA.

Petitioners thereafter brought the instant petition against the County, seeking an order modifying the arbitrator's award so that it provides that the award has no effect on the Corrections Unit or the collective bargaining agreement between the Corrections Unit and the County. Petitioners allege that, although the CSEA and the Corrections Unit have common representation through the CSEA's counsel's office, they are separate bargaining units with separate collective bargaining interests and separate collective bargaining agreements. [*2]Moreover, petitioners allege that the Corrections Unit was never asked to accept, nor did it sign off on, the MOA, and that the Corrections Unit did not authorize the CSEA to act on its behalf in the grievance. Supreme Court determined that petitioners did not have standing and dismissed the petition. We affirm.

CPLR 7511 (a) provides that "[a]n application to vacate or modify an [arbitrator's] award may be made by a party within ninety days after its delivery to him" (emphasis added). Further, when an arbitration results from a procedure outlined in a collective bargaining agreement, only those who are parties to the collective bargaining agreement can seek to vacate the arbitrator's award, unless the collective bargaining agreement grants those rights to a third party (see Matter of Alava v Consolidated Edison Co. of N.Y., 183 AD2d 713, 714 [2d Dept 1992]; see also Matter of City of Syracuse [Lee], 163 AD3d 1394, 1397 [4th Dept 2018]; see generally Matter of Wilson v Board of Educ. of City of N.Y., 261 AD2d 409, 409 [2d Dept 1999]).

Here, the CSEA brought the grievance on behalf of County employees covered by the CBA. The CBA provides that an employee may submit their own grievance to the County, however, it permits only the CSEA to submit a class action grievance. The CBA further provides that the CSEA may request arbitration with respect to a grievance, but no provision in the CBA permits an employee to request arbitration, nor is there a provision that makes the employees a party to the collective bargaining agreement (see generally Matter of Case v Monroe Community Coll., 89 NY2d 438, 442-443 [1997]; Matter of Diaz v Pilgrim State Psychiatric Ctr. of State of N.Y., 62 NY2d 693, 695 [1984]). Additionally, neither petitioners nor the Corrections Unit participated in the arbitration and nothing in the record suggests that the Corrections Union instructed the CSEA to act on its behalf. Thus, we conclude that petitioners were not parties to the arbitration, and therefore they do not have standing to petition to modify the arbitrator's award (see generally CPLR 7511 [a]; Matter of Widrick [Carpinelli], 155 AD3d 1564, 1564 [4th Dept 2017], affd 32 NY3d 975 [2018]; County of Westchester v Mahoney, 56 NY2d 756, 758 [1982]).

Entered: November 15, 2024

Ann Dillon Flynn

Clerk of the Court