Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at: www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Retirement to avoid disciplinary action

Retirement to avoid disciplinary action

A Los Angeles Unified School District teacher arrested and accused of sexually abusing students retired from his position before administrative disciplinary action had been initiated by the school district. School District Superintendent John Deasy, when asked what action the school district planned to take responded “Can you go back and fire someone who’s already retired?”*

An appointing authority of a New York State or political subdivision of the State is able do just that insofar as certain employees are concerned.

For example, 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, provides that, Resignation, provides: that  “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."** Many local civil service commissions have adopted a similar rule.

Presumably the appointing authority could elect to disregard a “retirement” under similar circumstances.***

In the case of an individual serving in a position in the classified service not otherwise entitled to a pre-termination disciplinary hearing pursuant to law or a collective bargaining agreement, the appointing authority presumably could elect to disregard the resignation, schedule a disciplinary hearing in the exercise of its discretion and in the event the individual is found guilty of the charge[s], record the separation as a “termination for cause” rather than as a resignation.

Undertaking such a disciplinary action could be significant with respect to employment in the public service in the future as application forms for employment or examination with the State or a political subdivision of the State typically  include the following questions.

1. Were you ever discharged from any employment except for lack of work, disability or medical condition?  [ ] yes  [ ] no  

2. Did you ever resign from any employment rather than face discharge? [ ] yes  [ ] no 

Failing to answer these questions correctly could result in the applicant being disqualified for such employment pursuant to §50.4(e), and, or (f) and, or (g) of the Civil Service Law by the responsible Civil Service Commission or Personnel Officer.

Many local civil service commissions and personnel officers have promulgated rules similar to 4 NYCRR 5.3(b).

*  See Los Angeles Times article on the Internet at:

http://latimesblogs.latimes.com/lanow/2013/01/teacher-molestation-principal-ignored-allegation.html

** State Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

*** See Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of January 21 - 25, 2013 [Click on the caption to access the full report]

DiNapoli Approves Terms of $3.14 Billion Tappan Zee Bridge Contract

State Comptroller Thomas P. DiNapoli last Friday announced he has approved a $3.14 billion contract between the state Thruway Authority and Tappan Zee Constructors to design and build the new Tappan Zee bridge.


Officers of Albany Nanotech Complex Safeguarding Public Funds

Fuller Road Management Corp., the not for profit corporation that runs the State University at Albany’s College of Nanoscale Science and Engineering, is fulfilling its duties to support and provide appropriate internal controls over operations and activities, and promoted an ethical business climate at the multi–billion dollar facility, according to a report released Friday by State Comptroller Thomas P. DiNapoli.


DiNapoli: State Tax Revenues Up, But Still Lag Projections

Tax collections through December totaling $46.4 billion were $48.3 million below the state’s latest estimates and $685.3 million below initial estimates in April. Higher than anticipated personal income tax collections in December likely reflect income paid before federal tax increases take effect in 2013 for high income taxpayers, New York State Comptroller Thomas P. DiNapoli said last week in releasing the December cash report.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the City of Beacon;

the Midway Fire District;

the Niagara Falls Housing Authority;

the Orleans County;

the Town of Otto; and,

the Village of Spring Valley.

Department of Health Medicaid Overpayments for Out-of-State Ambulatory Surgery Services (Follow-Up) (2012-F-26)

An initial audit report examining whether DOH was appropriately paying out-of-state providers for ambulatory surgery services provided to New York State Medicaid recipients found $12.2 million in actual and potential Medicaid overpayments for such services during the audit period. Following up, auditors found DOH and the Medicaid Inspector General made progress in addressing the issues identified in the initial audit. This included the recovery of $1,309,960.

Department of Health Monitoring of Medicaid Payments for Nursing Home Bed Reserve Days (Follow-Up) (2012-F-28)

An initial audit examined whether nursing home claims submitted to Medicaid for hospital bed reserve days were appropriate. During the five year audit period ended March 31, 2010, Medicaid paid $28 million for bed reserve claims that exceeded the bed reserve day limit. However, because reimbursement rates were the same for both standard and reserve care during our audit period, auditors determined no significant overpayments occurred. Auditors recommended DOH remind nursing homes of the correct way of coding for standard nursing home days and bed reserve days and implement controls within eMedNY to prevent payment of claims for bed reserve days in excess of prescribed limits. In a follow-up, auditors found DOH and the Office of the Medicaid Inspector General have taken significant actions in correcting the problems identified in the initial report.

Office of General Services Selected Employee Travel Expenses (2012-S-92)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Four of these employees worked at the Office of General Services (OGS) and had travel costs totaling $206,494. Auditors found the travel expenses for the four OGS employees selected for audit were documented and adhered to state travel rules and regulations.

New York State Department of Taxation and Finance Selected Employee Travel Expenses (2012-S-95)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the Department Taxation and Finance with outliers in the areas of train fare, fuel and other miscellaneous travel expenses. The employees travel costs totaled $91,686. Auditors found that the travel expenses for the three employees selected for audit were documented and adhered to state travel rules and regulations.

Department of Agriculture and Markets Quality of Internal Control Certification (2012-S-47)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to each institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. Agriculture and Markets’ Internal Control Certification was submitted more than four months after the April 30 deadline, the department's certification did not provide an adequate level of detail describing specific actions it will take to address its partial compliance assessment of its internal audit function. Auditors recommended the department: re-examine priorities to accommodate the timely submission of the Internal Control Certification; provide appropriately detailed responses to questions as requested in the annual Internal Control Certification; and expand and enhance the internal control training and education program to cover all aspects of internal controls for all staff levels.

Tuition Assistance Program, Pace University (2012-T-1)

Auditors determined that Pace’s certification procedures are appropriately designed and were substantially complied with during the audit period for the transactions we tested. Auditors concluded there is not a high risk that a significant number of students certified for TAP are not eligible for awards.  Nonetheless, tests did disclose ten awards totaling $21,236 that school officials incorrectly certified in error.

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services

Source: Office of the State Comptroller

Local governments could do more to conduct background checks on individuals working in municipal youth program services, according to an audit released today by New York State Comptroller Thomas P. DiNapoli.

“Failing to perform background checks potentially jeopardizes the safety of children,” said DiNapoli. “It is essential that local officials take action to ensure they are consistently screening all persons who provide youth program services in their communities. Parents need to trust that all of the necessary steps have been taken to keep their children out of harm’s way.”

From January 2010 through May 2012, auditors examined youth program activities in the cities of Binghamton, Middletown, New Rochelle and Utica; as well as the towns of Amherst, Clifton Park, Manlius and Seneca Falls. These municipalities offer activities to more than 409,000 residents.

The Comptroller’s audit found seven of the eight municipalities did not conduct background checks on all of the individuals who deliver their youth program services. Only one, the town of Clifton Park [in Saratoga County], annually screened all program personnel against the state’s sex offender registry and other resources.

Two municipalities, the town of Manlius and the city of New Rochelle, did not screen applicants at all, except for those personnel providing programs where state law mandates screening. The remaining five municipalities performed some screening, but did not do it consistently or did not document the date and results of the screening process.

Of the 1,994 individuals working in youth program services in these municipalities, the Comptroller’s audit did not identify any persons with sex offender or significant criminal histories.

The Comptroller’s audit findings also include:

·        Four of the five municipalities that used volunteers did not check volunteers’ criminal history;

·        Five municipalities that hired contracted workers to offer program services did not screen these workers for sexual offenses prior to delivering services; and

·        Six municipalities performed some variety of background checks for new employees.

Municipal youth programs can include pre-school or afterschool activities, arts and crafts, exercise and fitness, summer camps, seasonal or holiday special events, sports, employment and literacy programs, safety programs, swim programs and therapeutic programs. Background checks are currently required by state law or regulation only for individuals who have contact with children in camps, childcare programs and therapeutic programs.

DiNapoli recommended municipalities conduct background checks for all employees, volunteers and contractors involved in youth programs. Minimally, local officials should utilize the sex offender registry maintained by the New York State Division of Criminal Justice Services. They can also perform various types of criminal history background checks and develop their own procedures to limit liability and ensure the safety of participating children.

Local officials generally agreed with the audit findings and the Comptroller’s recommendations. Their responses are included in the final audit report.

For a copy of the report visit: http://www.osc.state.ny.us/localgov/audits/swr/2013/backgroundchecks/global.pdf