Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Click on text highlighted in color  to access the full report

Town of Croghan – Financial Management (Lewis County)
The board adopted budgets that relied too heavily on fund balance as a financing source and appropriated more fund balance than it had available. The board has not developed a multiyear financial plan to address long-term priorities or a policy to determine the amount of fund balance to maintain.
Town of Dickinson – Fiscal Oversight (Franklin County)
The board did not effectively oversee the town’s financial operations. The supervisor did not provide the board with adequate monthly financial reports. In addition, the town’s procedures for auditing claims were not in compliance with town law.
Johnstown Public Library – Cash Receipts (Fulton County)
Auditors were unable to determine if all collections were recorded and deposited in a timely manner and intact. This was because library officials have not established formal policies or procedures for handling and recording cash receipts.
Town of Kiantone – Town Clerk (Chautauqua County)
The town clerk did not deposit all money collected. As of June 23, 2014, the clerk had a shortage totaling $3,147. In addition, the clerk did not record, deposit or remit money collected in an accurate and timely manner. Auditors also found the board did not provide adequate oversight of the clerk’s operations.
Town of Lewisboro – Financial Condition (Westchester County)
The town’s general, sewer and water funds all had a deficit fund balance at some point from 2009 through 2013. While officials were able to eliminate accumulated deficits in these funds by the end of 2013, they have not developed a multiyear financial plan to help monitor operations and guard against future operating deficits.
Village of Mill Neck – Financial Management (Nassau County)  The board has not established adequate policies and procedures or provided guidance on maintaining a reasonable level of fund balance. As a result, the village has accumulated excessive fund balance in its general fund that resulted, at least in part, from unrealistic budget estimates.
Saratoga Springs Public Library – Claims Processing (Saratoga County)
Internal controls over the claims audit process were not designed appropriately. For example, not all claims included signatures from the director or department heads to indicate that goods and services were actually received. In addition, the board assigned the responsibility to audit and approve all claims for payment to the president.
Town of Sweden – Justice Court (Monroe County)
The justices do not provide adequate oversight of court operations to ensure the accurate and complete collection, deposit, recording and reporting of court moneys in a timely manner. The justices have not adequately segregated the duties of the clerks and do not regularly review accounting records, bank statements, or monthly reconciliations and accountability analyses.
Town of Tyrone – Financial Management (Schuyler County)
Town officials have not developed multiyear financial plans, policies, or procedures to govern budgeting practices or the level of unexpended surplus funds to maintain. The board adopted budgets that were not based on sound and realistic estimates of revenues and expenditures. Poor budgeting, along with overspending in the highway fund, has caused cash flow problems, which required inter-fund transfers and advances from the general fund to pay bills over the last several years.
Town of West Union – Board Oversight and Cash Receipts and Disbursements (Steuben County)
The board has not provided adequate oversight to safeguard town assets. Specifically, the board did not adopt structurally balanced budgets. For fiscal years 2011 through 2013, the town had excessive fund balances in both the general fund and highway fund. In addition, the board did not audit the books and records of any of the town officers and employees that handled cash.

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Refusing to answer work-related questions in the course of an investigation

Refusing to answer work-related questions in the course of an investigation
2015 NY Slip Op 01573, Appellate Division, First Department

The question of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d 154, cert denied 486 US 1007. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with use immunity," noting that "when a public employee is compelled to answer questions or face removal upon refusing to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may thereafter be used against the employee in a subsequent criminal prosecution."

An attorney serving with the Department of Housing Preservation and Development (HPD) was terminated from his position. The administrative law judge, after a disciplinary hearing, had found the attorney guilty of misconduct and recommended the individual be terminated from employment. The appointing authority adopted the findings and recommendation of the administrative law judge and dismissed the attorney.

The attorney appealed but the Appellate Division unanimously affirmed the appointing authority’s determination. The penalty imposed, said the court, “does not shock our sense of fairness” given, among other things, the attorney’s refusal to appear for duly scheduled investigatory interviews even after receiving use immunity.

The court explained that substantial evidence supported the determination that attorney had engaged in misconduct by representing a tenant in litigation against the New York City Housing Authority while employed as an attorney for HPD, by “using [HPD’s] resources in the course of that representation, and by refusing to comply with directives to appear for investigatory interviews.

The Appellate Division said that although the attorney “is correct that a violation of New York City Charter §2604(b)(7) was not established given the absence of any evidence that he received any compensation for representing the tenant ... there was substantial evidence that [the attorney] violated other laws and orders in connection with that representation, including New York City Charter 2604(b)(2) and HPD Commissioner Order 2009-1(4)(a).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01573.htm

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New Deputy Chief Investment Officer named to the New York State Common Retirement Fund

New Deputy Chief Investment Officer named to the New York State Common Retirement Fund

Source: Office of the State Comptroller

On February 24, 2015 New York State Comptroller Thomas P. DiNapoli announced the appointment of Anastasia Titarchuk to the position of Deputy Chief Investment Officer for the $181.7 billion New York State Common Retirement Fund. Ms. Titarchuk previously served the Fund as Director of Absolute Return Strategies.

Ms. Titarchuk has 17 years of experience across diverse sectors of the financial services industry, including traditional equity and fixed income markets, as well as derivatives and alternatives. Prior to joining the Fund in 2011, she served as Director of International Derivatives Sales at Bank of America and has held important roles with Lehman Brothers/Barclays Capital and JPMorgan. Titarchuk graduated Summa Cum Laude from Yale University with a B.S. in Applied Mathematics.

Letter sent to Acting State Commissioner of Education Berlin concerning teacher evaluation

Letter sent to Acting State Commissioner of Education Berlin concerning teacher evaluation

Source: Office of the Governor

On February 23, 2015 Director of State Operations Jim Malatras sent a letter to State Education Department Acting Commissioner Elizabeth R. Berlin regarding the teacher evaluation process.

The letter can be viewed on the Internet at:

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Maltras_Letter_To_Berlin.pdf

Determining seniority of probationary employees in the event of a layoff

Determining seniority of probationary employees in the event of a layoff

Kenny v Rockland County Supt. of Highways, 2015 NY Slip Op 01453, Appellate Division, Second Department

Kevin J. Kenny was appointed to the position of Engineer II [Field] by the Rockland County Highway Department in April 2001. In August 2005, after serving a 26-week probationary period, he obtained tenure in that title as Engineer II [Field].

In December 2011 Kenny’s position was reclassified to an Engineer III position and in January 2012, Kenny filed an application for the Engineer III position and was nominated for a noncompetitive promotion* to the title of Engineer III. Kenny received a salary increase commensurate with his promotion to Engineer III and his appointment was described as "permanent, but serving probationary period."

In late June 2012, Kenny was told that a number of positions had been abolished by the County Legislature and that, although his position was not among those abolished, another employee with permanent status had greater rights to the Engineer III position than he had. On July 27, 2012, Kenny was terminated from his employment.

Contending that his appointment to the Engineer III position was a reclassification of his job title, not a promotion, thereby not requiring any new probationary period, Kenny challenged the Department’s determination. The Department, on the other hand, argued that Kenny’s appointment to the Engineer III position “constituted both a reclassification and a promotion” and that Kenny’s termination complied with applicable law.** After conducting a hearing, the Supreme Court granted Kenny’s petition, annulled the Department's determination, and reinstated the him to the position of Engineer II (Field) with back pay and benefits.

On appeal the Appellate Division reversed the Supreme Court’s ruling, on the law, and dismissed Kenny’s petition on the merits.

The Appellate Division explained that “Where, as here, an existing civil service position is reclassified, such reclassification is governed by Civil Service Law §22”***and, contrary to the Supreme Court's determination, the evidence at the hearing established that the procedural requirements for reclassifying the [Kenny’s] position from Engineer II (Field) to Engineer III were properly met.

Further, said the court, “contrary to [Kenny’s] contention, the reclassification also constituted a promotion, as it encompassed certain out-of-title duties which he had begun to perform after having received his engineering license in 2009 ... and resulted in a salary increase from a field position (Engineer II) to a management position (Engineer III), and a change in union representation to the Rockland Association of Management.”

The Appellate Division’s conclusion: the determination terminating Kenny’s employment had a rational basis, complied with due process requirements, and was not arbitrary and capricious or an abuse of discretion.

* See Civil Service Law §52.7.

** N.B. §80.1 of the Civil Service Law that provides “Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary service shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents [emphasis supplied]..

*** §22 of the Civil Service Law, in pertinent part, provides: “Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01453.htm

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