Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

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New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of the following governmental organizations. “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority,” said DiNapoli. “By auditing municipal finances and operations, my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Town of Blooming Grove – Board Oversight Over Recreation Cash Receipts (Orange County)
The board has not adopted comprehensive written policies for departmental cash receipts or implemented procedures to provide guidance for employees when recording transactions to help ensure financial reports are accurate and reliable.

Village of Cayuga Heights – Board Oversight (Tompkins County)
The board did not ensure the village’s accounting records were current, complete and accurate, and that purchases were made in accordance with the procurement policy. The village’s procurement policy is outdated and the current process does not comply with the procedures outlined in the policy.

Greenville Fire District #1 – Board Oversight (Greene County)
District budgets did not include detailed estimates of revenues and did not include estimates of fund balance. Claims were paid prior to board review and did not contain itemized vouchers. Also, the treasurer does not provide budget status reports to the board and there is no independent oversight to ensure that completed bank reconciliations are correct.

Hauppauge Fire District – Mandatory Training and Procurement (Suffolk County)
Three of the district’s five fire commissioners have not attended mandatory training, as required by law. In addition, the district did not always use competitive methods when procuring goods and services, and did not have contracts with all vendors.

Village of Holley – Financial Condition of the Water and Sewer Funds (Orleans County)
The board did not adequately monitor the financial condition of the water and sewer funds. Both funds relied on interfund advances from the general fund to help finance operations. As a result, the water and sewer funds had deficits of $153,000 and $37,000, respectively.

Town of Olean Volunteer Fire Company No. 1 – Controls Over Financial Activities (Cattaraugus County) The treasurer did not maintain appropriate records or provide the board with monthly financial reports. Company members did not maintain records for each activity to show an itemized list of the receipts collected from fund-raising events. Further, board minutes were missing from 14 of the 20 meetings held during the audit period.

Plattsburgh Public Library – Circulation Desk Cash Receipts (Clinton County)
Although the board adopted a circulation policy that contains procedures related to collecting cash receipts, the procedures were insufficient. Procedures did not establish which employees were authorized to collect cash receipts or the processes for determining accountability over cash receipts recorded in the library’s computer system.

Amendments to the Education Law included in the Governor's Budget Bill

Amendments to the Education Law included in the Governor's Budget Bill

2015 Article VII "Language Bills"*

The Governor’s Budget incorporates Senate 2010 [Same as Assembly 3010] which provides for certain changes to §3020-a of the Education Law and other provisions of the Education Law including sections addressing probation and tenure. Below are summaries of selected amendments to the Education Law set out in the bill:

1. Any alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after April 1, 2015 shall provide that all hearings shall be conducted before a single hearing officer and that such a pattern of ineffective teaching or performance shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §3012-c of the Education Law was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal.

2. An employee shall be suspended without pay if the employee is charged with misconduct constituting physical or sexual abuse of a student and is suspended pending an expedited hearing, provided that such an employee shall be eligible to receive reimbursement for withheld pay if the hearing officer finds in his or her favor.

3. All hearings commenced by the filing of charges on or after April 1, 2015 shall be heard by a single hearing officer.

4. Full and fair disclosure of the nature of the case and evidence against the employee by the employing board shall be public unless designated to be private at the discretion of the employee.

5. Full and fair disclosure of the witnesses and evidence shall be made by both parties in the manner prescribed in Articles 3 and 4 of the State Administrative Procedure Act.

6. Children shall be permitted to testify through sworn written or video statements.

7. A pattern of ineffective teaching or performance as defined in §30121-c of the Education Law shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §30121-c was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal. Nothing in this shall be construed to otherwise limit the defenses which the employee may place before the hearing officer in challenging the allegation of a pattern of ineffective teaching or performance, except that failure of the employing board to rehabilitate the teacher or principal and correct his or her deficiencies shall not be a defense.

8. Where charges of misconduct constituting physical or sexual abuse of a student are brought, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in the Education Law. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

9. The hearing officer shall adopt the penalty recommended by the employing board except where the hearing officer concludes that the board acted in bad faith or there are extraordinary circumstances in which the recommended penalty would be so disproportionate to the offenses proven as to be shocking to the conscience of the hearing officer.

10. Teachers and all other members of the teaching staff appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of five years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools on an annual salary, the teacher shall be appointed for a probationary period of three years; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to Education Law §3020-a.1 the teacher shall be appointed for a probationary period of four years. The service of a person appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education. Each person who is not to be recommended for appointment on tenure shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his or her probationary period.

11. Administrators, directors, supervisors, principals and all other members of the supervising staff, except associate, assistant and other superintendents, appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools for a probationary period of five years. The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.

12. If no affirmative action is taken by the board of education to terminate a classroom teacher or building principal, or to approve or deny tenure to a classroom teacher or building principal at the expiration of the probationary period, the classroom teacher or building principal shall remain in probationary status until the end of the school year in which such teacher or principal has received such ratings of effective or highly effective for the five preceding school years, during which time a board of education shall either discontinue the services of such person, deny tenure or approve tenure for those classroom teachers or building principals who otherwise have been found competent, efficient and satisfactory.

13. The board of education may grant tenure contingent upon a classroom teacher's or building principal's receipt of a rating of effective or highly effective in the fifth year, and if such contingency is not met, the grant of tenure shall be void and unenforceable and the teacher's or principal's probationary period shall be extended.

14. Failure to maintain certification as required by this chapter and the regulations of the commissioner of education shall constitute cause for removal.

*  Other "Language Bills"

Public Protection and General Government [S2005-B]

Education, Labor and Family Assistance [S2006-B]

Health and Mental Hygiene [S2006-B]

Transportation, Economic Development and Envioronmental Con. [S2008-B]

Revenue [S2009-B]

Criminal Justice Reform [S2011]

Limit Immunity from Prosecution [S2012]

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

2015 NY Slip Op 02775, Appellate Division, Second Department

Shortly before graduation a student [Student] in the nursing program at a Community College (College) was dismissed from the program for alleged academic deficiency. The student was told that she would receive a failing grade in a course and was given the option instead to withdraw from that course and repeat it.

Student declined to withdraw from the course and was dismissed from the program. She sued the College, challenging her dismissal and also sought damages for, among other things, breach of contract and violation of her right to due process.

Supreme Court denied Student’s petition, dismissed the proceeding and Student appealed.

The Appellate Division sustained the Supreme Court ruling explaining that unlike disciplinary action taken against a student, an institution’s assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators. According, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations.

The court further explained that although determinations made by educational institutions concerning the academic performance of their students are not completely beyond the scope of judicial review, "that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute."

In this case, said the court, the Student’s professors at the College “made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course.” Further, there was no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational, nor was there any evidence of a violation of the New York or United States Constitution, or of any statute.

As to Student’s claim that she was deprived of due process, the Appellate Division commented that the requirements of due process are less stringent when a student is dismissed for academic reasons than when a student is dismissed or suspended for disciplinary reasons. The court found that with respect to academic evaluations, Student was not entitled to a formal hearing, and the procedure utilized by the College was adequate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02775.htm

Applying the Doctrine of Primary Jurisdiction

Applying the Doctrine of Primary Jurisdiction

2015 NY Slip Op 02769, Appellate Division, Second Department

A teacher [Educator] sued the school district when it declined to add two years to her “seniority credit.” Supreme Court granted the school district’s motion “pursuant to the doctrine of primary jurisdiction to the extent of staying the proceeding so that the parties could bring the issue before the New York State Commissioner of Education.” Educator appealed.

The Appellate Division affirmed the Supreme Court’s ruling with costs awarded to the school district.

The court explained that "The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions."

This doctrine applies, said the Appellate Division, "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views," citing Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147.

In this instance the question before the court concerned the appropriate calculation of Educator's seniority and thus, said the Appellate Division, fell within the special knowledge and expertise of the Commissioner of Education.

Thus, said the court, Supreme Court properly granted the school district’s motion to the extent of staying the proceeding so that the parties could bring the issue before the Commissioner.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02769.htm

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage enjoyed by the individual at the time of his or her retirement

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage as a retiree enjoyed by the individual at the time of his or her retirement

Guerrucci v School Dist. of City of Niagara Falls,  2015 NY Slip Op 02617, Appellate Division, Fourth Department

Reversing a ruling by Supreme Court, the Appellate Division held that the “individual plaintiffs are entitled to the health insurance coverage provided in the collective bargaining agreement in effect at the time each individual plaintiff retired” and “those individual plaintiffs eligible for conversion of health insurance coverage ‘supplemental to Medicare’ are entitled to such coverage that, when combined with Medicare, equals the health insurance benefits prior to such conversion.”

Retired administrators [Plaintiffs] who were employed by Niagara Falls City School District alleged that the School District was in breach of contract with respect to its providing health insurance to these retirees.

The Appellate Division noted that the parties did not dispute that the language at issue in the various CBAs is unambiguous and, at oral argument, the School District had conceded that this case is controlled by Kolbe v Tibbetts (22 NY3d 344).

In Kolbe the Court of Appeals held that the relevant collective bargaining agreements [CBAs] “establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.”

Here the 1984-1987 and 1987-1990 CBAs provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Cross/Blue Shield coverage in effect at the time of his or her retirement, excluding dental coverage and major medical insurance, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage" while the 1990-1994 CBA provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Shield coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those retirees entitled to conversion of that coverage to coverage that is "supplemental to Medicare." The 1994-1997 and later CBAs provide that "[a]ny administrator who retires . . . shall continue to receive medical coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those entitled to conversion of that coverage to coverage that is "supplemental to Medicare."

The court said that it:

1. It agreed with Plaintiffs that the plain meaning of the CBA provisions at issue is that, upon retirement, a retiree will receive the health insurance coverage that the retiree was receiving prior to retirement, until the retiree becomes eligible for Medicare;* and

2. It agreed  with Plaintiffs that the supplemental coverage provided for in the CBAs required that School District provide health insurance coverage that, when combined with Medicare, equaled the health insurance benefits that the retirees enjoyed prior to qualifying for Medicare, 

The court explained that in interpreting a CBA, "it is logical to assume that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

In the words of the Appellate Division, “In view of our determination that the CBAs prevented [the School District] from reducing the retirees' health insurance benefits during retirement and that the intent of the CBAs was to ‘fix [the retirees'] rights to coverage as of the time they retired’ ... we conclude that the provision for ‘coverage . . . which is supplemental to Medicare’ means coverage that when combined with Medicare is equivalent to the health insurance coverage that the retirees enjoyed prior to becoming eligible for Medicare.”

* The Appellate Division noted that the CBAs provided that when certain retirees "reache[d] his or her sixty-fifth (65th) birthday and qualifie[d] for medical insurance under Social Security, the coverage shall be changed to that which is supplemental to Medicare."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02617.htm