Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

the New Suffolk Common School District,

the Quogue Union Free School District and

the Schoharie Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

County Reimbursement for Social Services Costs,

the Town of Dannemora, Village of Deposit and

the Kiantone Fire Department.

DiNapoli Announces Public Can Search State Payments on www.openbooknewyork.com

State Comptroller Thomas P. DiNapoli Tuesday announced that state payments to vendors, municipalities, school districts and others are now available at Open Book New York (www.openbooknewyork.com), a transparency website launched by DiNapoli in 2008. Data is updated daily to include approximately 10,000 new payments the Comptroller’s office processes each business day.

DiNapoli: State Public Authority Pay & Employee Perks Overs $7 Billion

New York’s state public authorities pay more than $7 billion in compensation and perks to more than 104,000 employees annually, with nearly $1.8 billion going to employees who earn $100,000 or more, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.
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Video tape exonerates employee accused of vandalism of employer’s property

Video tape exonerates employee accused of vandalism of employer’s property

OATH Index No.1572/13

Tapes created by surveillance video cameras have been used as evidence against employees in disciplinary procedures.

In this disciplinary action, a videotape introduced by the employee in his defense persuaded the hearing officer that the department had not proven the disciplinary charges filed against him.

A New York City a sanitation worker was served with disciplinary charges alleging that he had vandalized a garbage truck parked in a Department garage. The New York City Department of Sanitation attempted to prove these charges by introducing evidence that alleged that the employee vandalized a Department truck at about 3:15 a.m.

The evidence relied upon by the Department consisted of the testimony of two investigators who were watching a Department parking lot at night from the rooftop of an adjacent building and who had made a video recording of the lot from their observation point.

OATH Administrative Law Judge Kevin F. Casey found that the sound of broken glass could be heard on the video made by the investigators but no one was visible on the tape because it was too dark.

The employee denied that he had vandalized the Department’s equipment and introduced into evidence a video surveillance camera tape taken at a nearby 7-Eleven store and “[a]ccording to the time stamp on the recording, the [employee] entered the 7-Eleven at 3:12 a.m. and he left at 3:22 a.m., after using the restroom and purchasing food and coffee.”

Finding that the Department failed to rebut employee’s alibi evidence, including the video tape showing that he was at a 7-Eleven at the alleged time of the incident, OATH Administrative Law Judge recommended that the disciplinary charges filed against the employee be dismissed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-1572.pdf
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Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Source: Office of the State Comptroller

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The State Comptroller reports that a review of six state agencies and authorities found a pattern of abuse and poor oversight of employees that hold two or more public jobs, including fraudulently claiming to be working at two places at the same time, New York State Comptroller Thomas P. DiNapoli announced on Friday, December 20, 2013.

Earnings by all workers with two or more state jobs exceed $500 million annually. If even only a small percentage of these payments are not earned, the cumulative cost to taxpayers could easily be several million dollars annually.

Of 345 employees examined, auditors found 75 employees that regularly violated time and attendance policies, costing taxpayers $413,277 for 4,803 hours not worked. This amount represented almost 4.5 percent of the employees’ salaries. Auditors also found employees falsified timesheets, abused sick leave and misrepresented travel time from one job to another.

The Comptroller said: “Dozens of public employees working for more than one public employer have managed to take advantage of lax oversight and take credit for hours they didn’t work,” DiNapoli said. “Our audits found supervisors were lax and often complicit in allowing employees to game the system. This is costing taxpayers too much and could jeopardize public safety. It has got to stop. While the Executive should address this issue with all state agencies, I commend the agencies we audited for taking swift action, and recognizing that changes are needed.”

DiNapoli’s auditors examined the issue of dual employment after identifying red flags in previous audits.  The Metropolitan Transportation Authority (MTA), the Office for People with Developmental Disabilities (OPWDD), the Department of Corrections and Community Supervision (DOCCS), the Office of Mental Health (OMH), the Unified Court System (UCS) and the Office of Children and Family Services (OCFS) were selected for audit.  

Dual employment is most prevalent at colleges, prisons, health facilities and the courts. The most common secondary positions are as adjuncts, correction officers, and school hourly staff.

In additional findings, DiNapoli’s auditors found 69 employees who claimed to have worked 3,536 hours at two jobs at the same time (overlapping hours). Another 22 employees did not accurately reflect travel time from one job to another, and 16 improperly charged 511 hours of sick leave at one job, even though they were working at a second job.

Specific examples include:

·        An MTA track equipment maintainer who also worked for the New York City Department of Environmental Protection (NYCDEP) had work schedules that overlapped four hours each week. He told auditors that a supervisor had approved an alternate schedule seven years ago, which allowed him to report earlier to work at 6 a.m. instead of 8 a.m. in order to get to the NYCDEP on-time, even though his timesheets did not reflect this alternate schedule. During a site visit, auditors found that he arrived shortly before 8 a.m. instead of his earlier start time. This employee reported 193.5 overlapping hours at a cost of $8,232 over the course of a year;

·        A UCS employee who also taught at two CUNY schools was teaching classes during the hours that he was supposed to be at UCS. He was paid by UCS for 344 hours that he spent either traveling to or teaching CUNY classes;

·        A psychiatric nurse employed by OMH, who also worked as a public health nurse at P.S. 205 in the Bronx, submitted time records reporting the same end and start time for both jobs. She was paid for 205 hours not worked over twenty-two months at a cost of at least $1,607;

·        An OPWDD developmental aide charged 64 hours of unscheduled sick leave even though he was actually attending out-of-state basketball games associated with his SUNY employment. He was paid for 64 hours of sick leave at $1,187.20 and was paid as much as $689.43 for time not worked; and

·        There were 16 MTA employees who, because of their dual employment, were violating time limits for consecutive hours worked within a 24-hour period and were potentially putting public transportation users at risk.

Each of the six entities is performing its own internal investigation of employees identified in the audits.  At OCFS, two employees were fired, while a third resigned. The Comptroller’s office has also instructed the agencies to adjust calculations for any unearned pension credits given to the cited employees.

DiNapoli’s auditors recommended that agencies develop more comprehensive regulations to protect public health and safety, when permitted by labor contracts. Agencies should also consult with the Department of Civil Service and public employee unions to articulate more realistic time and attendance policies that reflect legally permissible practices, maximize productivity, and ensure adequate staff coverage.

The agencies and authorities generally agreed with the audit findings and to provide training on time and attendance policies, and recover overpayments for time not worked. The Comptroller’s office will also start providing agencies with data to allow payroll offices to better monitor employees with two or more jobs.

For a copy of the dual employment roll-up report visit: http://osc.state.ny.us/reports/dual_employment_roll_up.pdf

The individual audit for MTA can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s46.pdf

The individual audit for OPWDD can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s22.pdf

The individual audit for DOCCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s129.pdf

The individual audit for OMH can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s47.pdf

The individual audit for OCFS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s48.pdf

The individual audit for UCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s79.pdf

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

OATH Index No.1571/13

A sanitation worker was charged and found guilty of accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste.

While OATH Administrative Law Judge Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, she held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the agency's trade waste directive by disposing of more than six bags of construction debris without supervisory approval.

Although “Termination has often been the penalty for trade waste violations, particularly when there is proof that a worker has accepted a gratuity” in so doing, Judge Lewis noted that in recent cases involving similar facts the appointing authority imposed a lesser penalty on employees found guilty of “trade waste violations.” Citing OATH Index No. 469/11, Judge Lewis said that although the OATH ALJ considering the matter recommended the termination of the employment of a long-term sanitation worker found to have accepted a gratuity in return for picking up yard debris in violation of the trade waste order, the appointing authority rejected the penalty recommended and instead decided that a 30-day suspension without pay, the loss of 80 vacation hours and a reassignment* to another word location as the penalty should be imposed.

Finding that in this instance the employee’s partner played the dominant role in the transaction and the employee played only a secondary role, Judge Lewis recommended imposing a penalty of a 30-day suspension without pay.

The Commissioner adopted Judge Lewis’ recommendation of a 30-day suspension without pay but modified it imposing an additional penalty -- reassigning the employee from his current  work location to another location for 5 years.

* Although judicial and quasi-judicial decisions occasionally uses the term "transfers" to describe the type of personnel change involved here, a "change of work station," the employee’s “change of location” was, in fact, a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority -- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise. See, for example, 4 NYCRR 1.2(b), which applies to positions and employments 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. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/10_Cases/13-1571.pdf

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Payments for accumulated leave credits to retiring employees

Payments for accumulated leave credits to retiring employees

Source: January 2014 edition of the FSLG Newsletter [Issue Number: 01-2014]

In its January 2014 edition of the FSLG Newsletter, the Internal Revenue Service states:

“Employees of local governments often have substantial accumulations of sick and vacation pay at the time they retire. In many cases, contractual agreements between the employer and employee call for a lump - sum payment of all accumulated sick and vacation pay, as of the date of retirement. Th e payments often leave local governments and employees with large, unexpected tax liabilities.

“Many times, local governments and employees negotiate a payment plan to lessen the tax burden for both parties.

“Generally, the agreements are executed to defer the tax liability into other years. However, under the constructive receipt rules, the full amount is generally taxable when the employee has the option to receive the full amount. An employee cannot decide when the tax will be paid.

“As we discussed in an article in our previous newsletter , the constructive receipt rules under Internal Revenue Code section 451 require that individuals recognize income as soon as they have effective  control over it; that is, when the funds are made available without substantial limitations. When an employee has an option to receive the income without restriction, it is recognized as income, regardless of whether the employee actually receives it at t hat time.

“Example:

“City Government A owes Employee Z $150,000 in accumulated sick and vacation pay as of the day of retirement. A month before Employee Z’s retirement date, City A reaches an agreement to pay Employee Z $50,000 a year. For  3 years. City A intends to treat each of the 3 payments as wages and subject the payment to Federal Income tax withholding, social security, and Medicare taxes in each year. This arrangement does not defer the tax due. City A may choose to make the payments over the 3 years, but because the entire $150,000 is available at retirement, it will be included in income, subject to income tax withholding and social security and Medicare taxes ,  as of the date the employee is entitled to the funds.

 

“There are two key considerations to remember when consider ing payments of accumulated sick and vacation pay. First, does the worker have a right to receive the money? The worker does not have to exercise that right; the simple existence of the right to receive the money is sufficient t o establish that a taxable event has occurred.

“Second, has the employee been given an option as to when to receive the funds? If the employee has an option, the n the  employee has constructively received the money. The right to receive the money or the opt ion to receive the money determines whether  the money has been constructively received. Once the money is deemed to have been constructively received, it is taxable at that point.”

For additional information and assistance, please discuss the liquidation of accrued leave credits with your attorney or tax advisor.

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