Municipal and School audits released by New York State Comptroller Thomas P. DiNapoli

On December 13, 2023, New York State Comptroller Thomas P. DiNapoli announced the following Municipal and School audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Fillmore Central School District – Credit Cards and Purchase Cards (Allegany County) Although the 230 charges reviewed by auditors totaling approximately $40,000 were for appropriate district purposes, charges were not properly approved or adequately supported. All 230 charges had one or more exceptions that could have led to potentially inappropriate card use, including approximately $38,000 in charges were not properly approved prior to the card being used; and approximately $12,000 in charges did not have adequate support to show what was purchased.

 

Hastings-on-Hudson Union Free School District - Information Technology (IT) (Westchester County) District officials did not ensure that unneeded network user accounts were disabled in a timely manner. As a result, 21% of the district’s network user accounts were unneeded and provided additional entry points that could have been used to inappropriately access the network and view personal, private and sensitive information, make unauthorized changes to records, deny legitimate access to electronic information, or gain access to or control over other IT functions. Auditors found that officials did not convey management’s expectations for managing network user accounts through written policies and procedure or disable 551 unneeded network user accounts.

 

Stafford Fire Department Inc. - Financial Management (Genesee County) The board and treasurer did not properly manage the department’s finances. The board did not adopt realistic budgets or take an active role in monitoring department finances. As a result, the operating budget was underestimated by $29,667 in 2021 and by $33,298 in 2022. Auditors found the board did not:  include revenue estimates in the budgets for 2021, 2022 and 2023. It did not develop a written multiyear financial or capital plan to help guide budget development and save for capital asset and equipment purchases.

 

Town of Baldwin – Claims Auditing (Chemung County) The board did not always properly audit claims before approving them for payment. Due to insufficient documentation, auditors were unable to determine, and the board was unable to support, it approved claims before payment. A review of 71 claims totaling approximately $55,100 determined that town officials did not comply with the town’s procurement policy. In addition, 23 claims totaling approximately $35,000 did not contain evidence that the required competition was sought and nine claims totaling approximately $7,400 were not supported with sufficient documentation such as detailed receipts, weigh tickets or itemized invoices.

 

Town of Berkshire – Procurement and Conflict of Interest (Tioga County) The board did not consistently seek competition for purchases or avoid conflicts of interest. As a result, goods and services may not have been procured in a cost-effective manner. Of the 113 purchases totaling $771,727 auditors reviewed, officials did not seek or could not support that they sought competition for 36 purchases totaling $211,171, or 27.  The town may have saved $3,891 on diesel fuel purchases if town officials had used the New York State Office of General Services contract to purchase diesel fuel. Additionally, the highway superintendent had a prohibited interest in a contract between the town and his construction company, providing construction services totaling $3,000.

 

Town of Hamburg - Finance Office (Erie County) The board and town officials did not ensure that credit card purchases were supported and for proper purposes. As a result, the former director of finance made improper credit card purchases totaling approximately $2,000 and approved her own credit card purchases. The former director was arrested in September 2022 for charges relating to her use of the town’s credit card. She pleaded guilty to disorderly conduct in December 2022. Additionally, the board and town officials did not ensure the finance office payroll was accurate and supported. The town also made improper, questionable and unsupported payroll payments totaling more than $19,000 to the former director while an employee who reported to her received unsupported out-of-title payroll payments totaling approximately $1,400. Additionally, personnel directors approved their own overtime pay totaling more than $5,000. 

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Challenging the denial of Petitioner's request to use school facilities and seeking the removal of certain school personnel

The Petitioner in this appeal to the Commissioner of Education:

[1] challenged the Board of Education's denial of his request to use district facilities in order to "operate an afterschool program" for a second year: and 

[2] sought the removal of the superintendent.

With respect to Petitioner's application seeking the removal of the superintendent, the Commissioner said Petitioner's application to remove the Superintendent must be denied because Petitioner's application lacked "the notice required by section 277.1(b) of the Commissioner’s regulations".

Citing Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055, and other Decisions of the Commissioner of Education, the Commissioner explained "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."*

Turning to the merits of the Petitioner's appeal, the Commissioner indicated  Education Law §414 provides that "boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes. Further, the Commissioner noted that the New York State Court of Appeals has held that local school boards "exercise ultimate authority for access to students, school buildings and school property generally"** and that a school board’s determination in this regard may only be reversed if it is determined to be arbitrary or capricious.

Referring to information in the record, the Commissioner found that the school board "possessed ample justification to decline [Petitioner’s] request to utilize its facilities", opining that permitting Petitioner to continue using school facilities "could foreseeably lead to safety or liability issues."

Accordingly, the Commissioner dismissed Petitioner's appeal and denied Petitioner's application.

* §277.1(b) sets out the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310.

** See Matter of Lloyd v. Grella, 83 NY2d 537.

Click HERE to access the full text of the Commissioner's decision posted on the Internet.

 

State and other entity audits released by New York State Comptroller Thomas P. DiNapoli

On December 13, 2023, New York State Comptroller Thomas P. DiNapoli announced audits of the following State and other entities were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Department of Motor Vehicles – Language Access Services (2022-S-38)
A statewide language access policy to assist Limited English Proficiency individuals and provide equal access to government programs and services requires State agencies that provide direct public services, including the Department of Motor Vehicles (DMV), to provide interpretation services and to translate vital documents into the most common non-English languages in the State based on census data. Auditors determined that due to gaps in the Executive Law, DMV does not have sufficient authority to enforce its language access policies at office locations operated by County Clerks, despite these offices accounting for over 75% of the total customer-facing DMV offices. In addition, auditors determined that DMV’s contracted interpretation vendor was not providing on-demand interpretation services for all languages and dialects needed, and calls for 20 different languages had an average hold time of over 30 minutes. Further, office locations operated by DMV cited issues with dialects and disconnected calls as well as a lack of interpreters.

 

Department of Health – Medicaid Claims Processing Activity October 1, 2022 Through March 31, 2023 (2022-S-36) During the six-month period ended March 31, 2023, eMedNY processed over 233 million claims, resulting in payments to providers of nearly $45 billion. OSC’s audit of Medicaid claims processing activity identified over $20.6 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified three providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. The Department of Health removed two of the providers from the Medicaid program; the remaining provider was under the Office of the Medicaid Inspector General’s review.

 

City University of New York – Course Offerings (Follow-Up) (2023-F-7)
Based on City University of New York (CUNY) data, many full-time students studying toward a bachelor’s degree do not graduate within four to six years of first-time enrollment. A prior audit, issued in September 2020, found that CUNY was not effectively matching course offerings to student demands, comprehensively tracking students’ use of financial aid, monitoring their graduation rates, or formally surveying students to consider their feedback when preparing course schedules. The follow-up found that, while CUNY deployed new applications to facilitate course scheduling and registration; offered more online, hybrid, weekend, and off-hour courses; and implemented a new communication system between students and department advisors; it did not formally survey students for their feedback. Of the initial report’s seven recommendations, two were implemented, three were partially implemented, and two were not implemented.

 

Office of Addiction Services and Supports – Oversight of Chemical Dependence Residential Services (Follow-Up) (2023-F-17)  The Office of Addiction Services and Supports (OASAS) oversees prevention, treatment, and recovery programs, including community residential programs, which provide supervised services to individuals transitioning into abstinent living, and supportive living programs intended for those who have completed treatment and are transitioning to independent living but do not require on-site staff on a 24-hour basis. A prior report, issued in December 2021, found OASAS did not adequately monitor the programs, did not meet the recertification review requirements, and did not always conduct appropriate follow-up of programs to verify that all deficiencies had been addressed. The follow-up found that OASAS made progress addressing the issues identified during the initial audit: of the three recommendations, two were implemented and one was no longer applicable.

 

Department of Environmental Conservation – Oversight of New York State Forest Tax Programs (Follow-Up) (2023-F-18) To encourage the long-term management of privately owned woodlands to sustainably produce forest crops and increase the likelihood of both healthy forests and a stable forest economy, New York enacted Real Property Tax Law 480a – a tax incentive program for qualifying private forest landowners. The Department of Environmental Conservation (DEC) has general oversight responsibility for the program. A prior report, issued in April 2022, found monitoring and enforcement weaknesses in DEC’s oversight of the program that undermined its ability to ensure program forest lands continue to be protected and that only eligible properties receive local tax exemptions. Additionally, for the 795 properties spanning 260,669 acres under the program, landowners had been benefiting from local tax reductions for over 45 years, but the properties were largely unmonitored by DEC or localities. The follow-up found that DEC made progress in addressing the issues identified during the initial audit, partially implementing both of the initial report’s recommendations.

 

Metropolitan Transportation Authority—Long Island Rail Road – Rolling Stock Programs Department – Selected Aspects of the M9 Rail Car Project Management (Follow-Up) (2023-F-10) In 2013, the Long Island Rail Road (LIRR) awarded a contract to procure new M9 rail cars to replace its M3 cars and expand its fleet in preparation for service into Grand Central Terminal, budgeting $355.9 million for an initial base order of 92 cars. A prior report, issued in March 2022, found that LIRR was over budget by $8.9 million and the contractor was behind schedule for the delivery of all 92 base cars by nearly three years—the first cars weren’t delivered until September 2019 and, as of July 2020, only 64 cars had been delivered. Furthermore, LIRR did not assess the contractor for the allowed liquidated damages, which totaled $5.5 million as of September 2020, and all 64 cars were delivered with defects and deficiencies, but LIRR conditionally accepted them (allowed as long as the deficiencies do not affect safety or function) and put them into service. The follow-up found that LIRR assessed $4.9 million of the liquidated damages by withholding payment but, to date, no repairs have been completed, and no date has been set to start the repairs. Of the initial 12 recommendations, three were implemented, three were partially implemented, and six were not implemented.

 

State Education Department (Preschool Special Education Audit Initiative) – Handicapped Children’s Association of Southern New York, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-49) Handicapped Children’s Association of Southern New York, Inc. (HCA), a Johnson City-based not-for-profit organization, is approved by the State Education Department (SED) to provide preschool special education itinerant teacher services to children with disabilities who are between the ages of three and four years. For the fiscal year ended June 30, 2018, HCA reported approximately $1.9 million in reimbursable costs for the SED preschool cost-based program. Auditors identified $66,009 in reported costs that did not comply with requirements.

 

Department of Health – Improper Managed Care Payments for Misclassified Patient Discharges (2023-F-26) Many of the State’s Medicaid recipients receive their services through managed care, whereby the Department of Health (DOH) pays managed care organizations (MCOs) a monthly premium for each enrolled recipient and, in turn, MCOs pay for services their members require. When billing an MCO for an inpatient stay, the codes the hospital uses are important because payments may vary significantly depending on whether a patient is transferred or discharged. An initial report, issued in August 2022, identified from a judgmental sample of 166 claims totaling $2,474,162, that 47 claims were overpaid $323,531 because they were incorrectly coded as discharges when the patients were actually transferred to another facility. Further, 13 claims, totaling $101,447, were incorrectly billed as inpatient claims when outpatient services were actually provided. The follow-up found DOH made minimal progress in addressing the issues identified in the initial audit report, implementing none of the five recommendations.

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Appealing an administrative determination

In Matter of Saratoga Economic Development Corporation [Corporation] v State of New York Authorities Budget Office [NYABO], Corporation challenged NYABO's administrative determination requiring Corporation to comply with the Public Authorities Accountability Act of 2005.

In Matter of Smith v City of Norwich, 205 AD3d 140 the Appellate Division held that in the event an administrative determination is made where an evidentiary hearing is not required by law, court review is limited to whether the administrative determination had a rational basis and was not arbitrary and capricious.* 

Further, in Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 179 AD3d 1408, the court said "So long as [the administrative determination] has a rational basis, [courts] will sustain the [administrative] determination, even if it would have also been rational for the administrative agency to have reached a different result."

In contrast, observed the Appellate Division, in the event an agency is engaged in pure statutory interpretation, a court "need not pay deference to the agency's interpretation and may instead undertake that analysis anew." Where, however, "the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom", the Appellate Division, citing Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, noted courts "regularly defer to the governmental agency charged with the responsibility for administration of the statute".

The Appellate Division then opined the courts defer to an agency's statutory interpretation "where the general statutory language and legislative history indicate that the Legislature intended to adopt a broad policy approach to the subject matter of the statute, delegating to the administrative agency comprehensive, interpretive and subordinate policy-making authority, interstitially to 'fill in the blanks' consistently with the over-all policy of the statute, either by administrative rule making or case-by-case decisions."

Finding that NYABO rationally concluded that Corporation is a local authority in that there is a "close relationship between Corporation and local governments" and Corporation "is the type of entity that the Legislature intended to subject to the provisions of the [Public Authorities Reform Act, Laws of 2009, Chapter 506]", the Appellate Division ruled that NYABO's determination was rational and therefore entitled to deference, rejecting Corporation's reliance on Matter of Farms First v Saratoga Economic Dev. Corp., 222 AD2d 861.**

Reversing the judgment of Supreme Court "on the law" and without costs, the Appellate Division dismissed Corporation's petition, and "... declared that [Corporation] is a local authority subject to the Public Authorities Law".

* In a footnote the Appellate Division explained that where no administrative hearing is held, "the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process," citing Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334.

** The Appellate Division noted that in support of the proposition that it is not a local authority, Corporation cited Matter of Farms First, contending it was an independent entity formed by private businessmen to further their own interests, has never been furnished offices at County expense, has never had a County employee serve on its board and receives some of its funding from private individuals and corporations.

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