An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits

An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits

Matter of Birnbaum (Commissioner of Labor), 2014 NY Slip Op 07719, Appellate Division, Third Department

Julian R. Birnbaumserved as the Deputy Commissioner for Division Initiated Investigations and Complaints with the New York State Division of Human Rights (DHR) in a “nontenured position classified as management/confidential and served at the discretion of the Commissioner of Human Rights as well as the Governor.

When Birnbaum’s employment ended, he applied for unemployment insurance benefits.

The Department of Labor issued an initial determination finding that Birnbaum was not entitled to receive benefits because his base period employment was in a major nontenured policymaking or advisory position that was excluded under Labor Law §565(2)(e).

An Administrative Law Judge, however, overruled the initial determination and found that Birnbaumwas entitled to receive benefits. On appeal, the Unemployment Insurance Appeal Board rescinded the ALJ's decision and remanded the matter for another hearing to further develop the record. The resulted in the ALJ‘s sustaining the Department of Labor’s initial determination, which determination was subsequently upheld by the Board Birnbaum appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that for purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Whether this exclusion applies typically presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis.

According to the decision, Birnbaum’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR's issuance of exemptions for certain housing providers and, in addition, participated in other agency functions.

The Appellate Division noted that Birnbaum reported directly to the Commissioner, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. Although Birnbaum did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner.

Under these circumstances, said the court, there is a rational basis for the Board's decision that Birnbaum held a major nontenured policymaking or advisory position excluded under Labor Law §565(2)(e).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07719.htm

New York State Comptroller Thomas P. DiNapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli releases municipal audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipalities listed below. Cick on text highlighted in color  to access the full report

Town of Berkshire – Town Clerk (Tioga County)
The town clerk did not properly safeguard taxpayer funds. As a result, auditors could not determine if the clerk is receiving, recording, depositing, disbursing and reporting all the money owed to the town and/or paid to her. In addition, the clerk and code enforcement officer failed to compare the money received for building permits with the permits actually issued.

Bethlehem Public Library – Selected Cash Receipts (Albany County)
The board has established adequate internal controls for processing over-the-counter cash receipts to ensure that all cash collections are properly accounted for and deposited timely and intact. These controls include policies and procedures that provide guidance to the library staff involved in the cash collection process. The procedures also adequately segregate duties within the cash collection process to ensure that no one individual controls all phases of a transaction.

Town of Cherry Valley – Budget Review (Otsego County)
The significant revenue and expenditure projections in the preliminary budget are reasonable, except for the estimated revenues from Federal Emergency Management Agency reimbursements. Although the budget does slightly raise taxes for all funds, town officials did not include a contingency amount in the budget, which would provide for anticipated events and could help to improve the town’s financial position. The town has adopted a local law to override the tax levy limit in 2015.

City of Cohoes – Purchasing (Albany County)
Because city officials did not consistently seek appropriate competition for purchases, they cannot assure taxpayers that they are obtaining the best price possible, as well as the desired quality and quantity, for goods and services. Auditors found the city made purchases totaling $145,759 from three vendors without using competitive bidding or state contract pricing, as required by law.

Town of Deerpark – Budget Review (Orange County)
The revenue and expenditure projections in the proposed budget are reasonable. The town’s preliminary budget complies with the property tax levy limit.

Town of Deposit – Budget Review (Broome County)
The significant revenue and expenditure projections in the proposed budget are reasonable. Additionally, town officials have increased the real property tax levy for the general fund and implemented cost saving measures in the highway funds to help address the town’s declining financial condition. The town has adopted a local law to override the tax levy limit in 2015.

East Aurora Volunteer Fire Department, Inc. – Controls Over Financial Activities (Erie County)
The treasurer did not prepare adequate monthly reports. Auditors found the treasurer’s monthly financial reports consisted of a listing of department bank account balances. However, the department bylaws require the treasurer to keep a complete record of all funds received and disbursed and furnish a report showing this activity at the department’s regular meetings.

Town of East Hampton – Budget Review (Suffolk County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The town’s 2015 tentative budget complies with the property tax cap levy limit.

Town of Edinburg – Justice Court Operations (Saratoga County)
The town justice did not maintain complete and accurate accounting records. Bank reconciliations, month-end accountabilities and reports submitted to the state Justice Court Fund were not accurate. Also, the justice did not maintain adequate case files and did not take appropriate action to ensure that fines and fees were collected in a timely manner.

Village of Fort Ann – Financial Condition (Washington County)
The village board consistently appropriated excessive amounts of fund balance in the general fund to finance operations which caused this fund to be in fiscal stress at the end of the 2013-14 fiscal year. The board also overestimated expenditures for the water and sewer funds with the intention of increasing the levels of fund balance to guard against unforeseen repairs and finance future capital costs.

Town of Islip Industrial Development Agency – Controls Over Payments in Lieu of Taxes (PILOTs) (Suffolk County)
The agency’s process for billing, collecting and recording of PILOTs was efficient and payments were accurately billed and collected. However, PILOT payments were not always distributed to affected taxing jurisdictions within 30 days, as required by law.

Town of Laurens – Budget Review (Otsego County)
The significant revenue and expenditure projections in the tentative budget are reasonable. To address fiscal concerns, the board has proposed real property tax levy increases in the general and highway town-wide funds. However, these increases alone may not fully address the town’s potential for fiscal stress. The town’s tentative budget complies with the property tax levy limit.

Volunteer Firemen’s Benevolent Association of North Tonawanda – Foreign Fire Insurance Tax Moneys (Niagara County)
The board did not ensure that foreign fire insurance tax moneys were spent in accordance with the special act that created the association. Although the 106 payments made during 2013 totaling $49,545 were supported with itemized claims, it is unclear if they were all proper because the association bylaws were not adequately detailed regarding allowable expenditures.

Town of Ogden – Financial Management and Justice Court (Monroe County)
Town officials have not developed adequate policies, procedures or financial plans to govern budgeting practices and the amount of unexpended surplus funds to maintain. The board has repeatedly adopted budgets with unrealistic estimates of revenues, expenditures and the amount of fund balance that would be used. Therefore, the town has levied more real property taxes than necessary and accumulated a significant amount of unexpended surplus funds.


Town of Otsego – Financial Condition (Otsego County)
The budgets for the town’s four operating funds varied significantly from the actual results each year. Over a four-year period, auditors found each of the funds’ estimates generally varied from actual results. For example, the general town-wide and highway part-town funds overestimated revenues and expenditures; the general part-town fund underestimated revenues and overestimated expenditures; and the highway town-wide fund underestimated both revenues and expenditures.

Town of Sardinia – Tax Relief Rebate Program (Erie County)
Auditors reviewed the local law adopted by the town board establishing a tax relief rebate program and a sample of tax rebates issued during the 2013 fiscal year. Because the State Constitution prohibits towns from loaning or giving money to any private corporation or person, including property owners and residents, the town lacked authority to issue the tax refunds to property owners without a special act from the State Legislature.

Village of Schuylerville – Procurement (Saratoga County)
Village officials did not always use competitive procedures for the procurement of goods and services as required by law. Auditors found a contract for public work for $51,150 and two equipment purchase contracts for $50,000 and $109,970 that were not competitively bid. As a result, the village may have incurred higher costs than necessary.

Town of Sidney – Budget Review (Delaware County)
The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the town’s projections for rental income in the hospital fund were not based on amounts expected to be received according to current lease agreements. The town’s preliminary budget complies with the property tax levy limit.

Sidney Fire Department and Related Fire Companies – Financial Activities (Delaware County)
The board did not ensure that cash disbursements and receipts were properly accounted for because it did not implement proper internal controls over the department and the three companies. Auditors found that 134 of the department’s and companies’ expenditures totaling $47,093 lacked sufficient support and/or board approval to verify that they were appropriate.

Slingerlands Fire District – Professional Services (Albany County)
District officials did not obtain quotes or requests for proposals for most professional services during the audit period. The district made payments to eight professional service vendors totaling $153,238 for six types of services. In 2013, the cost of these services consisted of $84,584 for insurance coverage, $11,086 for legal services, $10,675 for physician services, $7,800 for investment management services, $5,000 for external audit services and $650 for engineering services.

Town of Stony Point – Claims Processing and Purchasing (Rockland County)
The town’s claims processing policies and procedures are adequate. Board members approve the payment of claims against the town each month by reviewing and signing an abstract listing current claims for goods and services provided.

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

Delanoy v City of White Plains, 2014 NY Slip Op 07615, Appellate Division, Second Department

Joseph J. Delanoy, Jr sued the City of White Plains seeking to recover damages for personal injuries.

The jury issued a verdict on the issue of liability finding White Plains 58% at fault in the happening of the accident. The City appealed the jury’s finding that there was a “special relationship” and asked the Appellate Division to set aside the verdict on the issue of liability or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence.

The Appellate Division denied the City’s appeal.

The court held that there a “special relationship” between the City of White Plains and Delanoy was created when the City's plumbing inspector directed Delanoy to perform a clearly unsafe air pressure test.

The Appellate Division explained that the Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship between a public entity and a plaintiff:

"(1) the plaintiff belonged to a class for whose benefit a statute was enacted;

“(2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or

“(3) the municipality took positive control of a known and dangerous safety condition"

In this instance only the third situation was at issue, i.e.: Did the City take positive control of a known and dangerous safety condition?

Notwithstanding the City’s arguments to the contrary, the Appellate Division ruled that the jury's determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to Delanoy’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence.

Neither, said the court, was the jury's determination that the inspector was performing ministerial acts rather than discretionary acts contrary to the weight of the evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07615.htm

New York State Comptroller Thomas P. DiNapoli releases school audits

New York State Comptroller Thomas P. DiNapoli releases school audits

Source: Office of the State Comptroller

On November 18, 2014, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the school districts listed below.

Click on text highlighted in color  to access the audit report for the school district.

Brewster Central School District – Financial Condition (Putnam County)
District officials have taken appropriate action to manage the district’s financial condition. Officials provided for effective financial planning and management by ensuring unrestricted unappropriated fund balance levels are in accordance with statutory requirements, and budget estimates and reserve balance levels are reasonable.

General Brown Central School District – Financial Condition (Jefferson County)
The board has balanced recent budgets with appropriations of fund balance and reserves while limiting tax increases, resulting in a deficit unrestricted fund balance of $435,655 at the end of fiscal year 2012-13. District expenditures, specifically those related to employee benefits, increased by more than $1.2 million since the 2008-09 fiscal year despite the elimination of 46 positions over the last four fiscal years.

Onondaga Central School District – Non-payroll Disbursements (Onondaga County)
District officials need to improve internal controls over non-payroll disbursements. The accounts payable clerk performed all non-payroll disbursement processes for the general fund with little oversight or any other compensating controls. The clerk is responsible for recording all general fund non-payroll disbursement transactions, initiating check printing, receiving printed checks and distributing checks.

Spencer-Van Etten Central School District – Financial Condition (Tioga County)
Over the last three fiscal years, the district developed budgets that were reasonable and based on historical or known expenditures. District officials have also implemented multiple cost-savings measures in an effort to minimize expenses. For example, due to anticipated increases in health insurance premiums, the district switched to lower cost health insurance coverage during the 2011-12 fiscal year and achieved savings of approximately $850,000 in the first year of the change.

Watervliet City School District – Fiscal Stress (Albany County)
The board did not adopt realistic, structurally balanced general fund budgets or adequately monitor the financial activity of capital projects to ensure fiscal stability. The board also did not adopt a policy regarding establishing an adequate level of unrestricted fund balance to maintain. As a result, the general fund’s financial condition has diminished in recent years. In addition, the district spent $741,000 more than the total amounts authorized for two projects causing a fund balance deficit in the capital projects fund in that amount.

White Plains City School District – Procurement of Professional Services (Westchester County)
District officials did not always seek competition for professional services and did not have documentation to support why contract providers were chosen for all professional service contracts. The district did not have adequate documentation to support the payment of certain claims made to professional service providers. 

Establishing seniority rights in the course of collective bargaining

Establishing seniority rights in the course of collective bargaining
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department

The Appellate Division held that Steven Bregman and the other plaintiffs [Bregman] in this action had waived their right to seniority credit through their teacher association's collective bargaining agreement with the Board of Education for the East Ramapo Central School District. To this end the court said that Supreme Court should have entered a judgment declaring that the relevant provision of the collective bargaining agreement governing seniority rights and the determination to deny Bregman seniority credit pursuant thereto was not illegal and invalid.

The court noted that such a waiver was not against public policy, as the Board of Education was allowed to establish a separate tenure area for administrators apart from the teaching tenure areas enumerated in 8 NYCRR 30-1.4.and Bregman did not establish that the positions in question constituted "instructional support services" as defined in 8 NYCRR 30-1.1(j).

However, certain “seniority provisions” in a collective bargaining agreement may not be lawful and thus unenforceable as the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, demonstrates. The decision addressed the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in the event of a layoff.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date to be used to determine an individual's service for seniority purposes for layoff under State law.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But both §§80 and 80-a of the Civil Service Law provide that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and thus, in accordance with law, B would have greater seniority than A.

When the City laid off A rather than B, notwithstanding the fact that A had been employed by the City for a longer period than B because B had received his permanent appointment before A was permanently appointed, the Union grieved.

The Union contended that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh obtained a court prohibiting submitting the grievance to arbitration.

In the appeal that followed the Appellate Division sustained the City's decision and explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07610.htm

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