Falsification of time records results in suspension without pay

Falsification of time records results in suspension without pay

Decisions of the Commissioner of Education, Decision 11682

Decisions of the Commissioner of Education, Decision 11111

Decision 11682

A teacher charged 11 days of absence over a 3 1/2 month period to her sick leave accruals. The District subsequently learned that the teacher had reported for work at her second job or had attended scheduled classes in an evening course in which she was enrolled on the same days that she had been absent on sick leave.

The District filed disciplinary charges against the teacher pursuant to Education Law §3020-a. The disciplinary hearing panel found the teacher guilty of all but one of the specifications, ruling that her actions constituted conduct unbecoming a teacher and neglect of duty. It imposed a penalty of suspension without pay for three months .

The District appealed, seeking approval to dismiss the teacher. The teacher, on the other hand, asked the Commissioner to vacate the panel's decision and dismiss the charges filed against her.

The Commissioner, sustaining the panel's decision, ruled that the penalty imposed by the panel for the teacher’s abuse of sick leave was, in this case, appropriate and affirmed the penalty imposed by the §3020-a disciplinary panel. 

Decision 11111

 In another Education Law §3020-a disciplinary action involving an alleged falsification of time records, the Commissioner upheld the disciplinary hearing panel's finding the teacher guilty of the charges filed against her alleging that she had misuse of family sick leave benefits. The Commissioner also upheld the disciplinary penalty imposed by the panel: -- a suspension without pay for 9 1/2 months for "abuse of sick leave benefits."

The disciplinary hearing panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the School District’s spring recess. The teacher, however, chanced to meet her principal at a vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 
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Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75

Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75

OATH Index No 1889/13

§75 of the Civil Service Law provides that disciplinary charges must be served on the accused individual no later than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential within the meaning of Article 14 [The Taylor Law] of the Civil Service Law, more than one year after the occurrence of the alleged incompetency or misconduct. However, such limitations do not apply where the alleged acts of incompetency or misconduct would, if proved in a court of appropriate jurisdiction, constitute a crime.*

An employee charged with a number of alleged acts or omissions claimed to constitute misconduct pursuant to Civil Service Law §75 asked Administrative Law Judge Tynia D. Richards to “dismiss these ‘5-year-old charges’ as untimely”

The appointing authority thereupon amended the charges to include an allegation of the crime of “official misconduct” and contended that the alleged underlying charges were entitled to the “crimes” exception to the limitations period. 

Penal Law §195.00 defines the crime of official misconduct as follows: A public servant is guilty of official misconduct when, with intent to obtain a benefit or to deprive another person of a benefit:

1. He or she commits an act relating to [his or her] office but constituting an unauthorized exercise of [his or her] official functions, knowing that such act is unauthorized; or

2. He or she knowingly refrains from performing a duty that is imposed upon [him or her] by law or is clearly inherent in the nature of [his or her] office.

Citing People v. Esposito, 160 A.D.2d 378, Judge Richard said that to prove official misconduct, it must be demonstrated that the public servant so charged has acted with the intent to obtain a benefit for himself or another.”

The ALJ granted the employee’s motion to dismiss the disciplinary charges in their entirety, ruling that the charges alleged were inadequate to establish all elements of the crime, in particular, the employee’s intent to gain a benefit.

* N. B. An alternative “disciplinary procedure” negotiated in accordance with §76 of the Civil Service Law may set a different statute of limitations for initiating disciplinary action against an employee.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-1889.pdf
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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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