Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 2, 2014

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Fire Department treasurer arrested for stealing public funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Dennis Snow, the treasurer of the LeRoy Fire Department in Genesee County. Snow was charged with two counts of grand larceny in the third degree (class D felony), 42 counts of forgery in the first degree (class C felony) and two counts of falsifying business records in the first degree (class E felony) for allegedly stealing nearly $50,000 in public funds.

DiNapoli’s office found that Snow allegedly made unauthorized transfers, withdrawals and deposits from the department’s account, as well as from the firemen's benevolent association. Snow used the money to pay his personal bills and admitted that he forged the required co-signers signatures in order to complete his theft. The audit is expected to be finalized in the next month. Snow is due back in court on August 13.

DiNapoli encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th floor, 110 State St., Albany, NY 12236.

Schuyler Heights Fire District – Controls Over Claims Processing (Albany County)
Except for some minor exceptions, the claims reviewed were adequately supported and were for proper district purposes. However, the board’s failure to adequately audit claims and approve the abstract prior to the treasurer making payment on the claims creates a deficiency in the district’s internal controls over claims processing.

Village of Voorheesville – Claims Processing (Albany County)
Generally, the village’s internal controls over claims processing were adequate to ensure claims were for appropriate purposes, adequately supported and properly audited and approved.

Willsboro Fire District – Controls Over Financial Activities (Essex County)
The treasurer does not maintain running cash balances in the check book registers, maintain accounting records with cash accounts and subsidiary revenue and expenditure accounts or reconcile bank balances to book balances. The last annual financial report that was filed with the Office of the State Comptroller was for the 2010 fiscal year, which was filed in October 2013, more than two years late.

Town of Wilson – Purchasing (Niagara County)
The board did not ensure that the highway superintendent complied with competitive bidding requirements or the town’s procurement policy when making purchases. The superintendent did not consistently solicit written quotes or competitive bids as required, or attach appropriate supporting documentation to claims.

Argyle Central School District – Internal Controls Over Payroll (Washington County)
The board’s lack of comprehensive written policies and procedures resulted in the bookkeeper performing incompatible duties related to payroll processing and maintaining all leave accrual balances. The business manager’s and treasurer’s limited roles related to processing payroll did not provide sufficient oversight or monitoring of the bookkeeper’s work.

Forestville Central School District – Transportation Operations and Cafeteria Financial Condition (Chautauqua County)
District officials have not identified opportunities to reduce student transportation cost by performing appropriate analyses, such as an annual review of bus routes. By improving transportation efficiency, auditors estimate that the district could save approximately $36,500 annually and more than $460,000 by maximizing bus capacity for in-district runs, thereby reducing routes and eliminating the need to replace three buses over the next two years. In addition, the cafeteria fund’s financial condition has declined over the past five years as it experienced operating deficits, resulting in a $215,678 deficit fund balance as of June 30, 2013.

Northern Adirondack Central School District – Internal Controls Over Extra-Classroom Activity Funds (Clinton County)
The district’s controls over extra-classroom activity funds were not operating effectively. The board did not ensure that district officials implemented and enforced its policy governing the operations of the activity funds. Auditors found that 30 cash receipts totaling $19,322 had no supporting documentation and four student treasurers did not maintain ledgers during the 2012-13 fiscal year.

Schenevus Central School District – Budgeting (Otsego County)
District officials have accumulated excessive fund balances and not adequately reported the district’s financial condition to the taxpayers. As a result, they have withheld significant funds from productive use and prevented taxpayers from making informed decisions during the budget voting process. 

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County awarded attorney fees and costs as the prevailing party in a civil rights action

County awarded attorney fees and costs as the prevailing party in a civil rights action

Carter v Village of Ocean Beach, USCA, 2^nd Circuit, #13,815

Plaintiffs, former seasonal and part-time police officers of the Village of Ocean Beach, sued the Village and County and various officers and employees of those entities alleging multiple wrongful termination and defamation. They subsequently withdrew all claims except for their allegation contending that their First Amendment rights had been violated by the Village and the other named defendants.

As to Plaintiffs’ First Amendment claims, the District Court granted summary judgment in favor of all of the defendants, explaining that Plaintiffs’ First Amendment claims were barred as they were made only pursuant to the defendants’ performing official duties and thus Plaintiffs’ allegations were “constitutionally unprotected,” citing Weintraub v Board of Education, 593 F3d at 196.

As to the dismissal of Plaintiffs’ procedural due process claims, the Court of Appeals explained that their [1] breaks in employment defeated any claim to property rights under New York Civil Service Law and [2] the availability of a meaningful post deprivation state law remedy defeated any liberty based “stigma plus” claims with respect to their allegations of defamation.

Rejecting Plaintiffs’ argument that (1) their claims were not frivolous; (2) they should not be liable for fees and costs associated with their voluntarily withdrawal of their State law claims and claims not set out in 42 USC §1988, the Second Circuit Court of Appeals sustained the District Court’s order granting attorney's fee and costs to the only County defendants* in the amount of $63,990.00 as the prevailing party.  

In the words of the court, “Plaintiffs’ claims were frivolous from the outset and required the County Defendants to litigate continuously (at taxpayer expense) since March 2007,” explaining that the County Defendants did not employ, or supervise, the Plaintiffs and had no meaningful role in any alleged wrongs advanced by the Plaintiffs.

* Plaintiffs brought their state law claims in state court, which dismissed all claims against the county at the pleading stage of the action.
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Law enforcement officers may be held to higher standards of conduct than other civil service employees

Law enforcement officers may be held to higher standards of conduct than other civil service employees

2014 NY Slip Op 04297, Appellate Division, Fourth Department

A County Correction Officer [Petitioner] was alleged to have violated departmental rules and regulations and, after an advisory arbitration hearing, was suspended from his position without pay for 45 days.

Petitioner initiated an Article 78 proceeding seeking a court order annulling the appointing authority’s determination. Supreme Court confirmed the determination with respect to two of the three charges. The third charge, which alleged misconduct with respect to Petitioner's voluntary, off-duty attendance at a social event hosted and, or, sponsored by the Hells Angels Motorcycle Club was annulled and the matter remitted to the appointing authority "to determine whether the penalty should be adjusted as a result" of the annulling of the finding of guilt with respect to the third charge.

The Appellate Division thought differently, concluding that the determination should be confirmed in its entirety; that the petition should be dismissed and the judgment of the Supreme Court modified accordingly.

The court said that the proper standard of review is whether there is a rational basis for the determination or whether it is arbitrary and capricious, and not whether the determination is supported by substantial evidence.

The Appellate Division explained that the hearing was mandated by a collective bargaining agreement and not required by statute or law. Thus [1] the “substantial evidence” test was not applicable in this instance and [2] both the determination of guilt and the penalty imposed are subject to judicial review.

Turning to the merits of the appeal, the court said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." Further, an agency’s determination "is entitled to great deference" if the reviewing court finds that the determination is supported by a rational basis and it “must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency."

The Appellate Division also commented that “it is well settled that law enforcement officers may be ‘held to higher standards than ordinary civil service employees’ and that an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency . . . is concerned."

Finally, the court said that the penalty is not "so disproportionate to the offense as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d at 222. In view of the fact Petitioner was a law enforcement officer with over 20 years of experience, the Appellate Division said that he should have known that his participation in a Hells Angels-sponsored event would raise, at the very least, an appearance of impropriety, and that such participation could potentially jeopardize his authority and effectiveness as a correction officer.

Noting that Petitioner was "unrepentant, insisting that his personal opinion of [Hells Angels] and its members was the only criterion upon which his conduct should be judged," the court said it found no basis to disturb the penalty imposed by the appointing authority.

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Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee

Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee
2014 NY Slip Op 04203, Appellate Division, Second Department

In this action a former employee [Plaintiff] of a municipal entity [Municipality] filed a petition in the nature of mandamus to compel her former employer to provide her with post-employment health insurance benefits.

Supreme Court granted the Municipality’s motion summary judgment dismissing [1] Plaintiff’s petition for a writ of mandamus and [2] her action alleging breach of contract.

The court then granted the Municipality’s counterclaim for the reimbursement of the cost of health insurance coverage that it provided to Plaintiff since December 31, 2009, a sum in the amount of $19,866.57. The Appellate Division affirmed the Supreme Court rulings, with costs.

The Appellate Division said that the Municipality had established its entitlement to judgment as a matter of law with respect to dismissing Plaintiff’s cause of action alleging breach of contract. The Court explaining that the municipality’s resolution providing employees of the employer with post-employment health insurance benefits was limited to “employees who are retired, eligible to retire, or have reached retirement age.”

The court said that the Municipality had established a prima facie case that Plaintiff was not a "retiree," as defined in the applicable regulations, 4 NYCRR 73.1[d], [e], [f]; 73.2[a][3][iv].  Plaintiff, on the other hand, said the court, failed to raise a triable issue of fact as to whether she was a retiree or the existence of any contractual right to the Municipality’s providing her with post-employment health insurance benefits.

Further, said the Appellate Division, citing Parkview Assoc. v City of New York, 71 NY2d 274, although the Municipality may have performed an act contrary to law or made an administrative error in commencing to pay post-employment health insurance benefits on behalf of Plaintiff, as a municipal entity:

1. The Municipality cannot be estopped from denying the existence of a contractual obligation to continue making those payments and

2. The Municipality cannot be held to have ratified any such contractual obligation.

As the Municipality had also made a prima facieshowing of its entitlement to judgment as a matter of law on its counterclaim for reimbursement of the amount it erroneously paid for Petitioner’s post-employment health insurance coverage and Plaintiff failed to raise a triable issue of fact, the Appellate Division ruled that the granting of summary judgment in favor of the Municipality on its counterclaim was also proper.

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

2014 NY Slip Op 04451, Appellate Division, First Department

The arbitrator had found the employee [Petitioner] guilty of certain disciplinary charges and had imposed the penalty of a thirty-day suspension without pay. A few months later Petitioner was again served with a notice of discipline and the arbitrator, finding Petitioner guilty of misconduct,  terminated his employmentt.

Petitioner appealed. Supreme Court dismissed his Article 75 petitions seeking to vacate the arbitration awards, which decisions the Appellate Division affirmed.

The Appellate Division explained that Petitioner failed to argue, “let alone set forth, any of the grounds for setting aside an arbitration award.” Further, said the court, Petitioner did not allege an statutory basis for vacating the award such as corruption, fraud or misconduct in procuring the award or partiality of the arbitrators, nor did he allege that the arbitrators exceeded their power, failed to follow the procedure set forth in CPLR Article 75, or that the award is irrational or violates public policy."

In the view of the Appellate Division, “Petitioners' allegations amount to nothing more than a claim that the arbitrators made errors of fact or law which, even if true, does not warrant vacatur of the awards.”