Selected reports and information published by New York State's Comptroller

Selected reports and information published by New York State's Comptroller

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On Friday, September 12, 2014, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued by his office:

Office of Children and Family Services (OCFS): Day Care Licensing (2013-S-66)

OCFS’s licensing and inspection activities assure licensed and registered child care facilities are in compliance with applicable laws and are safe for children. Although the office investigates complaints about unlicensed or unregistered child care providers, it does not have proactive measures in place to identify illegal child care providers and otherwise mitigate illegal operations.

New York City Department of Education (DoE): Accuracy of Reported Discharge Data (2014-F4)

An initial audit issued in March 2011 found DoE classified some students as discharged without sufficient documentation under state guidelines to support a discharge classification. By classifying them as discharged, DoE’s reported graduation rate was higher than the actual rate and the reported dropout rate was lower than actual. In a follow-up, auditors found DoE has made significant progress in addressing the issues identified in the initial report and has implemented the report’s three recommendations.

Office of General Services (OGS): ReStacking Occupancy Initiative (2013-S-68)

OGS’ implementation of the ReStacking initiative, aimed at decreasing the amount of leased property occupied by State agencies, was successful in achieving - and in fact exceeding – the cost savings expectations established by the SAGE commission and the Division of the Budget. OGS has achieved about $51 million in lease costs savings which, after adjusting for move costs that total about $18 million, resulted in about $33 million in net savings. However, OGS calculated cost savings separately from expenses and only accumulated costs on an agency by agency basis, not at a statewide level.

Department of Health (DOH): Multiple Same-Day Procedures on Ambulatory Patient Groups Claims (2012-S-163)

The Medicaid program, run by DOH, reimburses outpatient services through the use of the Ambulatory Patient Groups (APG) payment methodology, which is based on patient condition and complexity of service. Auditors found Medicaid made $1,083,836 in actual and potential APG claim overpayments. Of this amount, payments of $614,260 were made for the same medical procedure billed multiple times on the same date of service, and $469,576 was paid for rehabilitation services beyond the allowed limits. Medicaid also made questionable APG claim payments totaling $10,195,755 for dental clinic claims that were processed without sufficient scrutiny of the propriety or frequency of the services billed.

State Education Department (SED): Controls over Cash Advance Accounts (2014-S-11)

Cash advances are issued to state agencies for purposes such as petty cash, travel and other funding needs. Advances are issued from agency appropriations and the cash is transferred from the State Treasury to a local bank account for use by the agency. SED was authorized to have three advance accounts with a total value of $300,000 as of March 31, 2012. Auditors found SED no longer issues checks for travel advances and infrequently issues checks for petty cash expenses. However, SED does not routinely resolve old outstanding items or review any paid checks and consequently has no assurance that potentially improper or fraudulent transactions are detected.

New York State Thruway Authority: Travel Plaza Revenues and Capital Improvements (Follow-Up) (2014-F-8)

In an initial audit report from January 2010, auditors found that the authority’s efforts were adequate to ensure fuel and food concessionaires pay full rent on time and make required capital improvements. Auditors also found some improvement opportunities and discovered that a fuel concessionaire under reported its fuel deliveries in one month tested, and as a result underpaid its rent for that month. In a follow-up, auditors found six of seven recommendations had been implemented while another was no longer applicable.
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Circumstantial evidence used to establish employee’s misconduct

Circumstantial evidence used to establish employee’s misconduct

OATH Index Nos. 587/14 & 1545/14

A laboratory assistant was charged with committing errors in processing specimens. OATH Administrative Law Judge Astrid B. Gloade found that the hospital met its burden of proving that the laboratory assistant had [1] sent a patient's specimen for testing which was accompanied by the documentation for a different patient and that the laboratory assistant and [2] had entered the wrong code on a requisition form for the testing of a patient’s specimen, which resulted in the wrong test being performed on the specimen, based solely on circumstantial evidence.*

The ALJ noted that although there was no direct evidence that the laboratory assistant was responsible for the errors underlying the charges, “circumstantial evidence supports finding that [the laboratory assistant] made the error." Judge Gloade then explained that “In a disciplinary proceeding, where the burden of proof is by a preponderance of the credible evidence, misconduct may be established solely by circumstantial evidence" [citations omitted]. 

Further, said the ALJ, “[i]n order to establish a fact in issue by circumstantial evidence, the inference sought to be drawn must be based on proven facts. The inference must be reasonably taken from the proven collateral facts.” Although the charging party “need not disprove all other possible explanations or inferences in order to sustain its case, it must show that the inference drawn is the only one that is fair and reasonable.”

Judge Gloade recommended that the laboratory assistant be terminated in view of her prior disciplinary history and because her misconduct endangered the safety of others.

* The ALJ's decision notes that "Circumstantial evidence is defined as ‘evidence of a collateral fact, that is, of a fact other than a fact in issue, from which, either alone or with other collateral facts, the fact in issue may be inferred,’" citing Richardson on Evidence §4-301.

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Petition dismissed after former employee failed to rebut employer’s prima facie evidence that it did not unlawfully discriminate against him

Petition dismissed after former employee failed to rebut employer’s prima facie evidence that it did not unlawfully discriminate against him 
2014 NY Slip Op 05959, Appellate Division, Second Department

Plaintiff appealed Supreme Court's dismissal of his “second cause of action” that alleged he had suffered unlawful discrimination in employment because of his disability. Plaintiff contended that his former employer’s failed to provide a reasonable accommodation of his disability and its refusal to renew plaintiff’s term appointment as a clinical associate professor was the result of unlawful discrimination.

The Appellate Division sustained Supreme Court’s ruling, explaining that although New York State’s Human Rights Law provides  that it is an unlawful discriminatory practice for an employer to refuse to provide reasonable accommodations to the known disabilities of an employee, “[t]he modified work schedule accommodation the plaintiff sought involved his schedule at the nonparty Kings County Hospital Center, which, although 'affiliated' with the plaintiff's now former employer, the defendant State University of New York, Downstate College of Medicine (hereafter SUNY), is not a facility owned and operated by SUNY.”

Further, said the court, SUNY established, prima facie, its entitlement to judgment as a matter of law with evidence showing that, while the plaintiff suffered from a disability related to surgery, he never proposed a reasonable accommodation that [SUNY] refused to make.

As to plaintiff’s allegation concerning SUNY’s refusal to renew his term appointment, the Appellate Division said that SUNY had demonstrated, prima facie, that its action “not to renew the plaintiff's term appointment as a clinical associate professor at SUNY was motivated by legitimate nondiscriminatory reasons.”

SUNY’s prima facie rebuttal of plaintiff’s allegations shifted the burden of going forward to plaintiff to show that SUNY’s explanations were merely subterfuge for unlawful discrimination. However, said the Appellate Division, plaintiff [1] “failed to raise a triable issue of fact with evidence that he proposed a reasonable accommodation that [SUNY] refused to make” nor did plaintiff [2] “raise a triable issue of fact with evidence from which one could infer that the reasons not to renew his term appointment as a clinical associate professor at [SUNY] were pretextual.”

Thus, said the court, “Supreme Court correctly granted that branch of [SUNY’s] motion which was for summary judgment dismissing the second cause of action, which alleged employment discrimination based on disability.”

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In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence

In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence

OATH Index No. 789/14

A New York City correction officer was charged with leaving her residence while on sick leave without permission and without having logged out with the employer's Health Management Division.

The City’s Department of Corrections alleged that an Absence Control Investigator had visited the employee's home during her sick leave, telephoned her five times, knocked on the door of Apartment 2I, the apartment number listed in the Department’s records, twenty times and “slipped a notice” under the door of that apartment.

In rebuttal, the employee provided evidence and testimony that she had never left her apartment and that the Absence Control Investigator had never entered her apartment building that day.

Further, the employee testified that she lived Apartment 2L and also testified that she had provided her employer with the correct information as to her residence, i.e., Apartment 2L. In addition, the ALJ, noted that the record shows the only other apartment on the floor was Apartment 2R.

OATH Administrative Law Judge Kara J. Miller found the employee’s testimony to be more credible than the testimony of the employer’s witness.

Noting that in a disciplinary proceeding, the employer bears the burden of proof by a preponderance of the credible evidence and that a preponderance has been defined as the burden of persuading “the trier of fact to believe that the existence of a fact is more probable than its nonexistence,” Judge Miller recommended that the charge brought against the employee be dismissed.
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The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff

The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff

Decisions of the Commissioner of Education, Decision #16,657

In this appeal challenging the board of education’s decision concerning determining seniority of educators for the purposes of layoff the Commissioner of Education indicated that “the general principles regarding seniority calculation are well settled.”

When a board of education [board] abolishes a position, it is required by Education Law §§2510(2) and 3013(2) to discontinue the services of the teacher having the least seniority in the system within the tenure of the position abolished.

1. The first criterion for determining seniority is actual full-time service rendered.

2. If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority

Teacher A, a certified mathematics teacher, was appointed by the board to a full-time leave replacement position on July 6, 2005, effective September 1, 2005. Teacher B, a certified mathematics teacher was appointed by the board on September 14, 2005, effective September 1, 2005.

Both A and B served as full-time substitutes in the mathematics tenure area from September 1, 2005 through June 30, 2006.  At its May 9, 2006 board meeting, both teachers were terminated from their full-time leave replacement positions.  At the board’s May 9, 2006 meeting the board granted B a probationary appointment in the mathematics tenure area, effective September 1, 2006.  On June 14, 2006, the board granted A a probationary appointment in the mathematics tenure area, effective September 1, 2006.  Following a successful three-year probationary period, which included the year of service as full-time substitutes, on March 12, 2008, both A and B were granted tenure effective September 1, 2008.

Subsequently the board found it necessary to abolish two positions in the mathematics tenure area effective June 30, 2013.  In calculated the seniority credit for teachers A and B, the board determined B to be the more senior of the two and Teacher A was laid off.

Teacher A objected, contending that he was improperly excessed because he had greater seniority in the mathematics tenure area than did Teacher B and that the board violated the law but incorrectly and arbitrarily used the probationary appointment date to determine which of the two teachers should be excessed, Teacher A or Teacher B.

The board, conceding that both A and B had eight years of service within the district when it abolished the position in the mathematics tenure area, argued that A was properly excessed as having less seniority than B in the mathematics tenure area because using the probationary appointment date was a reasonable and rational means to break the tie in actual full-time service rendered.  Thus, said the board, it properly exercised its discretion when it determined B was the more senior teacher based on B’s probationary appointment date, May 9, 2006, as A’s date of appointment as a probationary teacher was June 14, 2006.

Addressing the merits of A’s appeal, the Commissioner said that in determining the order of seniority of teachers within a district "it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution ….However, if teachers have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”

The District contended that a teacher’s right to seniority credit includes service as a full-time substitute when such service immediately precedes a probationary appointment but that service as a full-time substitute does not accrue unless it is followed by a probationary appointment and “it is the probationary appointment which must be considered when determining seniority for excessing purposes.” The Commissioner rejected this argument.

The board also argued that its use of the probationary appointment date to determine seniority in a case of equal seniority was proper for the board to use as a  reasonable means to break the tie.  Again the Commissioner disagreed, noting that “[i]f teachers have equal service, a board of education must evaluate whether the teachers’ appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”*

Citing Matter of Ducey, et al., 65 St Dept Rep 65, an appeal decided in 1943, the Commissioner explained “[t]he date when a teacher commenced her [or his] service in the system is the date she [or he] started her probationary period, if that was the first date that she [or he] became connected with the system.  If she [or he] had been employed by the board as a regular substitute prior to the service as a probationary teacher, the date of the commencement of regular substitute service is the date of commencement of her [or his] seniority.  Teachers employed on a regular substitute basis are ordinarily, and should be, employed pursuant to board action.”

Here, said the Commissioner, both A and B commenced service as regular full-time substitutes on September 1, 2005 and the record shows that A was appointed to the full-time regular substitute position on July 6, 2005, more than two months before B was appointed by board action on September 14, 2005. Accordingly, the Commissioner applied “the long-settled principles of Ducey,” holding that A’s July 6, 2005 appointment to the regular full-time leave replacement position, which occurred pursuant to board action, indicates his commencement of service within the system, it is that initial appointment date from which both the seniority calculation and appointment date determination should have been made.” 

While the board properly calculated the service time of A and B to include their full-time leave replacement positions, the district “erred in selecting the 2006 probationary appointment dates as the dates which established seniority.”

The Commissioner then ordered the board to reinstate A “to the position to which he is entitled in accordance with this decision, and provide him with back pay and benefits and seniority credit from June 30, 2013, less any compensation he may have earned in the interim.”

*See Matter of Kulick, 34 Ed Dept Rep 613, Decisions of the Commissioner of Education, Decision No. 13,428.

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