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 ending July 19, 2013 [Click on text highlighted in bold to access the full report] 

A.G. Schneiderman & State Comptroller DiNapoli Announce Arrest of Not–For–Profit Executive in Five–Year Public Corruption Scheme

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Tuesday announced the arrest of a nonprofit executive accused of pocketing tens of thousands of dollars in taxpayer funds intended for public services in New York City. The joint investigation conducted by the Office of the Attorney General and the State Comptroller–s office revealed that Van R. Holmes —— the president of the Young Leaders Institute, Inc. —— stole more than $85,000 by creating dozens of false records and forged documents which he filed with State and City agencies in order to obtain public money.

DiNapoli: Binghamton Facing Fiscal Challenges, But Outlook Improving

The city of Binghamton is grappling with high rates of unemployment and poverty, but its outlook is improving as it builds up reserve funds, according to a fiscal report issued Thursday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on cities across the state.

DiNapoli: Lax Board Oversight Allowed Former Village of Old Field Treasurer to Steal Nearly $60,000

Poor oversight by the Board of Trustees of the Village of Old Field allowed its former Treasurer Andrea Brosnan to steal nearly $60,000 in village funds without detection, according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. The findings of the audit were shared with Suffolk County District Attorney Thomas J. Spota whose office charged Brosnan with second–degree grand larceny, first–degree falsifying business records, defrauding the government and official misconduct on May 22. Criminal proceedings are pending.

DiNapoli: State Tax Receipts Down in June, but Overall State Fiscal Picture Positive

Personal Income Tax and business tax collections were down in June compared to last year, but the state’s General Fund balance ended the month higher than anticipated, in part because of a $250 million regulatory settlement, according to the June cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Questionable Charges for Rochester Special Education Provider

The Norman Howard School, a Rochester–based special education provider, submitted more than $200,000 in improper charges over a three–year period, mostly for salaries that went to uncertified teachers, according to an auditreleased Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Budgeting Problems at East Ramapo Central School District

Poor financial practices by the East Ramapo Central School District, including inaccurate budget estimates, have left the district with operating deficits for the past two years and could jeopardize future district operations, according to an auditreleased Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Improperly Overpaid Oneonta Dentist $66,000

The state Department of Health improperly paid an Oneonta dentist $66,402 for 2,361 inflated or questionable Medicaid claims he submitted for unwarranted services, including “behavior management,” and dentures that were not delivered to the recipients, according to an auditreleased Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Urges President Obama To Direct Federal Agencies To Adopt “Place Of Celebration” Standard For Recognition Of Same–Sex Marriages

New York State Comptroller Thomas P. DiNapoli Friday released a letterto President Barack Obama calling on him, in light of the recent Supreme Court decision overturning the Defense of Marriage Act, to direct all federal agencies under his control to adopt a marriage “Place of Celebration” standard. This would require federal agencies and programs to recognize all valid same–sex marriages, regardless of the current residence of the same–sex spouses.

Comptroller DiNapoli Releases Municipal Audits

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

the Jefferson Fire District and

the Town of Lagrange.

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] nominated by Governor Cuomo

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] to be nominated by Governor Cuomo

On July 19, 2013 Governor Andrew M. Cuomo announced the appointments of Courtney Burke as the administration’s new Deputy Secretary for Health, Laurie Kelley to serve as the Acting Commissioner of the Office for People with Developmental Disabilities (OPWDD) and Dr. Ann Sullivan to serve as the Acting Commissioner of the Office of Mental Health.

The Governor intends to nominate both Ms. Kelley and Dr. Sullivan to serve as Commissioners of OPWDD and OMH, respectively, during the next legislative session. Their nominations are subject to confirmation by the New York State Senate.

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Galindo (Board of Higher Educ., City Univ. of N.Y.--Commissioner of Labor), 108 AD3d 906

"Services rendered for an educational institution by a person who is enrolled and is in regular attendance as a student in such an institution" does not constitute employment within the meaning of the Labor Law §511(15) for the purposes of an individual’s eligibility for unemployment insurance benefits. Whether a claim for unemployment insurance benefits is within the ambit of this exclusion depends on the facts and circumstances of the employment to determine whether the primary purpose of the work was to earn a living or to further the claimant's education.

A claimant for unemployment insurance benefits challenged the Workers’ Compensation Appeal Board’s determination that she was ineligible to receive unemployment insurance benefits.

The claimant began working as an office assistant for the City University of New York [CCNY] and about a year later began taking classes at a community college affiliated with CUNY. The claimant continued working full time for CUNY, thereby obtaining a tuition fee waiver.

When the claimant earned her degree, her employment with CUNY “was discontinued by agreement” and she filed for unemployment insurance benefits. The claimant’s application was denied as excluded under Labor Law §511(15) and she appealed the Board’s determination.

The Appellate Division sustained the Board’s ruling, explaining that “the record contains substantial evidence supporting the factual finding of the Board that claimant was ‘in regular attendance as a student’ and, therefore, ineligible for benefits pursuant to the statute.”

Accordingly, the Appellate Division declined to “disturb” the Board’s determination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05269.htm

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances

2013 NY Slip Op 51145(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

In this Article 78 Proceeding, the Petitioner asked Supreme Court to annul and rescind the New York City Department of Education’s [DOE] determination that she had administered corporeal punishment to a student and her being suspended without pay for two days as a result of that determination. In addition, Petitioner asked the court [1] to compel DOE “to expunge their files” concerning the event leading to Petitioner’s suspension and [2] her award of back pay and other benefits lost.

The genesis of this action was Petitioner’s receiving a letter from the school principal [Principal] scheduling an appointment to investigate an allegation of corporal punishment made by a parent of one of the students in Petitioner’s class. Petitioner denied the allegations that she had administered corporal punishment to the child.

Principal then notified Petitioner that she was going to refer the allegations to the DOE's Office of Special Investigations [OSI] and Petitioner submitted a written response to Principal in which Petitioner again denied the allegations.

At the conclusion of the school year, Principal told Petitioner that DOE's OSI had not rendered a decision regarding the allegations of corporal punishment nor did the record submitted to Supreme Court contain any information about any investigation or determination by OSI. Subsequently, however, Principal informed Petitioner that she had investigated the complaint, which included interviews with the child’s mother, interviews with students in Petitioner's class who wrote “witness statements,” and the classroom teacher.

The Principal sent Petitioner a “Suspension Letter” stating that:

I have evaluated all of the investigatory results, including your response … and conclude that after completing the investigation, a specific date of occurrence could not be determined. I also could not determine whether or not you have pulled [[the child] by the his neck or shoulders, or pushed him on his back [as his mother alleged]. However based on statements made by some of the students in the class, I conclude that you have grabbed [the student] by the arm and pulled on his sleeves in the past.  

Principal then suspended Petitioner for two days without pay.

After addressing a number of procedural issued, Supreme Court Judge Manuel J. Mendez address the merits of Petitioner’s appeal, finding:

1. The Suspension Letter, the only documentation supplied to the Court recording “DOE's decision,” states that the Principal “was not able to determine the truth regarding any of the allegations made by [the pupil] and his mother.”

2. The Principal’s decision concerning the allegations of corporal punishment were based on the written statements of eight students and the record is silent as to how her discussion with the teacher “factored into her decision.”

3. Seven of the eight written statements submitted by DOE in these proceedings written by “2nd grade special education students ‘include translations' at the bottom whereby someone took it upon themselves to interpret what the unnamed individual concludes the children meant to say.”

4. Four of the seven letters “clearly and unequivocally” state Petitioner never touched the student while three statements mention physical contact between Petitioner and the student, two which state that Petitioner grabbed the student’s arm and the third stated that Petitioner grabbed the student’s clothes. The court noted that there was no description, context, or explanation accompanied these statements.

The court’s conclusion:  “those three written statements were enough for [the principal] to substantiate allegations of corporal punishment against Petitioner and reflect such in Petitioner's permanent record with the DOE.”

Judge Mendez opined that for the Principal to substantiate allegations of corporal punishment against Petitioner based solely on what “those three children wrote at someone else's prompting,” after she was unable to determine any truth to the original allegations, “is beyond arbitrary.”

Judge Mendez annulled the letter substantiating allegations of corporal punishment against Petitioner and ordered DOE to expunge all reference to the “Suspension Letter” determination, and anything else referring to it, from its files, “including, but not limited to, any reference to a substantiated allegation of corporal punishment and the two day suspension.” The court then directed DOE pay Petitioner two-days back pay and other benefits lost as a result of Petitioner's two-day suspension. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51145.htm

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job

Casale v City of Rye, 2013 NY Slip Op 05268, Appellate Division, Third Department

A police officer submitted a claim for workers' compensation benefits after sustaining a fractured wrist on the job. The employer did not controvert the claim and paid the officer full wages during the period of his disability. The employer than sought reimbursement from its workers' compensation carrier for the wages it had paid the police officer.

The Workers' Compensation Board, without holding hearings, issued a proposed decision that established the claim and directed the workers' compensation carrier to reimburse the employer for the period of during which it had paid the police officer.

The carrier made full reimbursement to the employer as directed but on the same date that such payment was made the police officer’s attorney faxed a request for fees with the Board. As a result, the Board rescinded its decision and issued a new proposed decision awarding the police officer’s counsel a $750 fee and directed that it be paid by the carrier as a lien on the current award.

The carrier objected, contending that the award had already been paid.

The Board rescinded, again, “all prior decisions and scheduled a hearing.” Ultimately the Board granted police officer's counsel a $750 fee as a lien on any future awards made and the carrier appealed, contending that “the counsel fee award should have been made immediately payable by the carrier as an overpayment.”

The Appellate Division affirmed the Board’s decision, explaining that “counsel fees in conjunction with a workers' compensation claim may be attached as a lien to ‘'any compensation awarded,’ and the fact that a balance is not currently owing to a claimant does not preclude an award of fees made payable as a lien against future awards.”

Noting that there was nothing in the record establishing that the carrier received notice of the counsel fee request before it made full reimbursement to the employer, the Appellate Division declined to disturb the Board’s decision to award such fees as a lien against future awards.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05268.htm