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

Click on text highlighted in bold to access the full report. 

Audits of school districts release by the State Comptroller during the week ending September 7, 2013:

the Hendrick Hudson Central School District,

the Oneonta City School District, and

the Ticonderoga Central School District.

The Comptroller also released completed audits of the following State departments and agencies:

the Department of Health, Medicaid Program;

the New York Energy Research and Development Authority;

the Office of Children and Family Services, Adoption Subsidy Program;

the State Education Department and the Office of Children and Family Services, Educators for Children, Youth and Families, Inc.; and,

the Metropolitan Transportation Authority

Comptroller Dinapoli releases municipal audits

Comptroller Dinapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli office's periodically audits of local governments. The Comptroller said that the audits are designed to assist local officials make certain that “proper policies and procedures are in place to protect taxpayer dollars and provide the best possible service these taxpayer dollars can deliver."

The following audits were released on September 5, 2013 [click on heading to read the text of the audit]:

Claryville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The fire district board has adopted a code of ethics, but it has not adopted an investment policy or a procurement policy. The board also has not ensured that procedures are in place for financial recording and reporting. As a result, although the district treasurer submitted monthly financial reports to the board, they were not complete because the treasurer had not reconciled cash and bank balances.

County of Cortland – Departmental Operations (2013M-157)
County officials are not ensuring that various departmental operations and functions are operating at the lowest possible cost to taxpayers. The sheriff’s office is understaffed and incurring an average of more than $500,000 in overtime annually. The county could save upwards of $177,000 a year depending on the number of additional officers hired in the jail and road patrol.

Town of Dover – Financial Activities (Dutchess County)
The town board did not have written procedures or guidelines to ensure proper review of claims and did not perform a deliberate audit of claims or require that claims include relevant documents. In addition, the board did not properly audit claims and failed to use competition when procuring professional services.

Town of Grafton – Internal Controls Over Claims Auditing (Rensselaer County)
The town board did not ensure that detailed claims audit procedures were in place to enable it to perform a proper and thorough audit in a timely manner. Although the town established informal procedures over the claims auditing process, officials should adopt a policy to ensure timely audits are conducted and that each claim approved is a legitimate town expenditure.
 
South Byron Volunteer Fire Company, Inc. – Internal Controls Over Financial Operations (Genesee County)
The fire company has established a system of internal controls with appropriate procedures to ensure that financial activity is properly recorded and that company moneys are safeguarded. The company, however, does not have a formal policy governing the use of credit cards.

Village of Spencer – Financial Condition (Tioga County)
The village board did not ensure that the clerk-treasurer properly reported the village’s financial condition. Auditors found the clerk-treasurer submitted an annual financial report with less cash reported than the actual balance available; several expenditure lines were reported inaccurately; and the interim reports provided to the board were incomplete and did not include sufficient information to adequately monitor the village’s financial activities against the adopted budgets.

Sullivan County Industrial Development Agency – PILOT Program (2013M-161)
The Sullivan County IDA has established a Uniform Tax Exempt Policy for both general and specific-purpose projects. The policies are specific and clearly articulate project goals and abatement schedules.  The project approval process includes in-depth cost-benefit analyses based on reasonable assumptions.

Village of Unadilla – Budgeting (Otsego County)
The village board consistently adopted budgets that included overestimated expenditures, underestimated revenues, and the appropriation of fund balance that was not available to finance operations. As of May 31, 2012, the village’s general fund balance was at a deficit of $56,633, after the planned use of $94,653 to finance operations. These budgeting practices caused major fluctuations in the unexpended surplus fund balance and demonstrate a lack of financial oversight by the board.

Village of Upper Brookville – Justice Court (Nassau County)
The court clerk maintained complete, accurate and timely monthly bank reconciliations and cash accountability reports. The village justices, however, did not establish adequate procedures to monitor the court clerk’s duties or review her work. The court clerk performed several key aspects of the court’s cash accounting functions with limited oversight.

Village of Westhampton Beach – Internal Controls Over Information Technology (Suffolk County)
Village officials have not developed formal information technology policies for user access. Auditors found generic user accounts on the village’s computer system and some users unnecessarily had administrative rights. As a result of these weaknesses, the village’s IT system and its data are subject to an increased risk of corruption, loss, or misuse.

White Lake Fire District – Budgeting Practices (Sullivan County)
The fire district board has not properly developed annual operating budgets. In three of the last five fiscal years, the district spent more money than it received. In addition, the board did not monitor budget performance or adjust the budgets to reflect actual expenditures as they occurred during the fiscal year.
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Accused employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

Employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

2013 NY Slip Op 05765, Appellate Division, First Department

In the course of a disciplinary hearing, the accused employee [Petitioner] had made death threats against the arbitrator during a telephone conversation with the attorney who was then representing him in the proceeding.

When the arbitrator learned of the death threats, he recused himself and was replaced by a second arbitrator, who found Petitioner guilty of failing to properly supervise students and excessive absences. As a result, Petitioner was suspended without pay for one year.

After investigating the alleged death threats made against the first arbitrator, the appointing authority filed disciplinary charges based on that event. In the second disciplinary action the arbitrator found that the evidence supported the alleged death threats and recommended that Petitioner be terminated from his position.

The Appellate Division sustained the arbitration award, finding that it was made in accord with due process, was supported by adequate creditable evidence, was rational and was not arbitrary and capricious. Further, said the court, “hearsay evidence can be the basis of an administrative determination … and each of the specifications upheld by the arbitrator was supported by testimony of witnesses having personal knowledge of the material facts or hearsay evidence that substantiated the basis for the charges.”

As to Petitioner’s claim that the second disciplinary proceeding and the ultimate disciplinary penalty imposed against him – termination -- violated his right to free speech under the First Amendment to the United States Constitution, the Appellate Division said that “Supreme Court properly deferred to the arbitrator's finding that [Petitioner’s statements are exempt from First Amendment protection because they constitute ‘true threats.’"

The Appellate Division said that Petitioner’s former attorney “only disclosed the [death] threats because he believed that Petitioner's increasingly erratic behavior rendered him genuinely dangerous.” Under the circumstances, said the court, "it cannot be argued that Petitioner’s speech implicates matters of public concern … [n]or can it be disputed that Petitioner’s death threats disrupted the initial arbitration proceeding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05765.htm

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Provisional appointment to a vacancy

Provisional appointment to a vacancy

CSEA v Bobenhausen, 69 AD2d 983

An individual not eligible for the promotion examination or open-competitive examination for a vacant position is selected to be provisionally appointed to the vacancy. Is such an appointment lawful?

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position.

The Appellate Division in CSEA v Bobenhause, 69 AD2d 983, extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it."

The court noted that the respondent, Frederick A Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Civil Service Law §65, Provisional Appointments, provides: “1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.

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Same-sex couples covered by FMLA

Same-sex couples covered by FMLA

Source: NYMUNIBLOG

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.

The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 

The full text of the posting is at http://www.harrisbeach.com/media-news/9742

The Supreme Court decision in United States v Windsor is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/

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