Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Click on text highlighted in color  to access the full report

Audits of State Agencies:

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2012, 2013, and 2014 (2014-S-58)
The department has adequate procedures in place to ensure that it accurately reports its assessable expenses in all material aspects. However, the department needs to improve its oversight of its Market Order Program, particularly its Apple Market Order, which is administered pursuant to a contract with the New York Apple Association.


Department of Health: Medicaid Claims Processing Activity October 1, 2013 Through March 31, 2014 (2013-S-50)
For the period October 1, 2013 through March 31, 2014. Auditors identified about $3.3 million in inappropriate Medicaid payments, including $1,335,151 in overpayments for hospital claims for which eMedNY did not properly factor Medicare coverage or a lower level of care into the payment; $682,022 in overpayments for pharmacy claims that were not in compliance with various regulations and policies; and $416,314 in improper payments for claims that were not subjected to the appropriate claims processing logic in eMedNY. By the end of the audit fieldwork, auditors recovered about $2 million of the overpayments identified.

Department of Labor (DOL): Wage Theft Investigations (Follow-Up) (2015-F-9)
In an initial report, issued in June 2014, auditors determined DOL was not completing wage theft investigations in a timely manner. As of August 2013, DOL had a caseload of 17,191 cases, including 9,331 active investigations and 7,860 cases pending payment. Of these, 12,938 cases (75 percent) had been open more than one year since the initial claim was received. In a follow-up report, auditors found DOL has made substantial progress in addressing the issues identified in the initial report. For example, DOL is now completing 80 percent of its wage investigations within six months. At the time of this follow up, DOL only had 305 cases that were open for more than one year.

Office of Mental Health (OMH): Assertive Community Treatment (ACT) Program (2014-S-25)
OMH is not effectively overseeing the ACT program to ensure that provider teams are complying with certain important program requirements. Provider teams are not recertified in a timely manner; program data in the CAIRS system is not complete or accurate; some program staff do not receive required training; and program recipients’ treatment plans are not completed on time, with required team leaders’ approvals. As a result, program recipients’ service needs may not be adequately addressed. The office has also not established methods to assess the extent to which it is achieving overall program goals.

Metropolitan Transportation Authority: Selected Aspects of Travel Expenses (2013-S-79)
Auditors found the Metropolitan Transportation Authority’s New York City Transit, MTA Bus Company, and MTA Bridges and Tunnels units should strengthen certain controls over travel to help reduce costs. For trips booked by MTA’s travel agent, auditors projected that 753 hotel stays exceeded the government lodging rates established by the General Services Administration (GSA) and the U.S. Department of State by at least $127,963. Transit paid more than the GSA maximum lodging rate for 12 of 15 rooms booked by a total of $3,962.

Office of the Nassau County Public Administrator (NCPA): Selected Financial Management and Administrative Practices (2013-S-37)
Among several issues noted by auditors, the NCPA did not have documentation to support the hiring and compensation of employees who are paid through the suspense account. The average monthly balance in the NCPA’s suspense account dropped from $241,214 in 2010, to $74,442. Although the NCPA publicly advertised for vendors annually, it did not prepare the required list of preferred vendors until 2013. Additionally, several vendors did not complete the required “Application to Provide Services.” The NCPA also did not maintain written documentation justifying the selection of particular vendors as required and certain estate assets were put up for sale without the documented formal prior approval of the Surrogate’s Court pursuant to statute. Additionally, the NCPA’s annual reports to the State Comptroller did not list non-cash estate assets as required by law. 

Municipal Audits 

Town of Hume,  

Town of Marilla,  

Village of Round Lake,  

Village of Shortsville; and the 

Village of Suffern. 
 

DiNapoli: Canal Corp. Must Address Gaps in Inspection Performance

The New York State Canal Corporation has not performed inspections as required on a significant number of critical structures along the system’s 524 miles of waterways, according to an audit released by State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Governments Should Improve Enforcement of State Fire Code Regulations

A sampling of municipalities from across New York reveals gaps in the review of fire safety plans or evacuation procedures for public buildings such as adult care facilities, hospitals, hotels, preschools, libraries and shopping malls, according to an audit released by State Comptroller Thomas P. DiNapoli. The audit reviewed enforcement of the state’s Uniform Fire Code in seven cities and three villages.

DiNapoli: Former Treasurer Pleads Guilty to Felony in Theft of More than $5,000 in Fire District Funds

The former treasurer for Pulteney Fire District No. 2 pleaded guilty to stealing more than $5,000 in public funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she falsified vouchers and paid herself an additional, illegal salary.

DiNapoli: State Needs to Ensure Timely Execution of Contracts with Not-for-Profits

State agencies were late more than 77 percent of the time in approving contracts with not-for-profit providers in 2014, according to a report released by State Comptroller Thomas P. DiNapoli. The late approvals prompted interest payments, mandated under the Prompt Contracting Law, that cost the state $195,663 last year, the report found.

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

2015 NY Slip Op 04239, Appellate Division, First Department

The Appellate Division held that the New York City Human Resources Administration, the City’s department in charge of the majority of the City’s social services programs, as a “provider of public accommodation,” violated New York City’s Human Rights Law’s* prohibition against discrimination on the basis of national origin by withholding from or denying “accommodations, advantages, facilities, or privileges” from individuals having  limited English proficiency as such action constitutes discrimination based on national origin.

* See Administrative Code § 8-107[4][a]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04239.htm

Disciplinary hearing held in absentia

Disciplinary hearing held in absentia

OATH Index No. 1114/15.

Following a default hearing, Administrative Law Judge Astrid B. Gloade found that petitioner proved charges that respondent, a job opportunity specialist, was AWOL and defrauded his employer.

The undisputed proof showed that respondent issued rental assistance checks to persons who were not landlords and who were not entitled to the funds. The proof further showed that the fake landlords gave respondent the amount of the issued checks and he, in return, gave them cash. Respondent pled guilty in criminal court to welfare fraud where he admitted that he had engaged in a kickback scheme that defrauded his employer of over $ 690,000 in agency funds. Termination of employment recommended.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1114.pdf

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Grounds for vacating an arbitration award

Grounds for vacating an arbitration award

2015 NY Slip Op 04486, Appellate Division, Second Department

In this action to confirm an arbitration award Supreme Court granted the petition and denied the disappointed party’s [Lieberman] application to vacate the arbitration award. 

In the appeal that followed challenging the Supreme Court’s ruling the Appellate Division sustained, in relevant part, the confirmation of the arbitration award, explaining "Even where the arbitrator makes a mistake of fact or law, [an arbitration] award is not subject to vacatur unless the court concludes that it is totally irrational or violative of a strong public policy and thus in excess of the arbitrator's powers."

Here, said the court, Lieberman failed to demonstrate that the arbitration panel exceeded its power in making the award.

Citing Town of Haverstraw v Rockland County Patrolmen's Benevolent Assn., 65 NY2d 677, the Appellate Division said "An arbitrator may do justice as he [or she] sees it, applying his [or her] own sense of law and equity to the facts as he [or she] finds them to be."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04486.htm

Seeking information pursuant to a Freedom of Information [FOIL] request

Seeking information pursuant to a Freedom of Information [FOIL] request

2015 NY Slip Op 04237, Appellate Division, First Department

The basic concept underlying the Freedom of Information Law  [FOIL], Article  6 of the Public Officers Law, is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. However, the custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL.

Accordingly, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In this action Supreme Court denied a petition seeking to compel the disclosure of certain documents pursuant to FOIL. The materials sought related to the investigation of two complaints filed with the Office of the Special Commissioner of Investigation for the New York City School District (SCI) concerning whether a speech that was given by an employee of the New York State Department of Education (DOE) at a public high school and later reproduced on DOE's website violated Chancellor's Regulations D-130(I)(B)(2), (I)(B)(8), and (I)(C)(1).**

The Appellate Division reversed the Supreme Court’s decision commenting that Supreme Court had “improperly suggested” that the individual filing the FOIL request [Petitioner] had the burden to establish that SCI’s denial of the FOIL request was "arbitrary and capricious," "an abuse of discretion," "irrational," or "unlawful."

The appropriate standard of review, said the Appellate Division, is whether SCI's determination "was affected by an error of law," citing Mulgrew v Board of Education of the City School District of New York, 87 AD3d 506. Rather than requiring the petitioner to show the denial the request was arbitrary or an abuse of discretion, the Appellate Division said that the burden is on the custodian of the records that are the target of the FOIL request to establish "that the material requested falls squarely within the ambit of one of the 'statutory exemptions' from disclosure" [and the custodian elected to apply the exemption in this instance].

The Appellate Division concluded that under the circumstances in this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to Petitioner.

As the burdens placed on the custodian of the records demanded, the court said the custodian failed to establish that disclosure of the materials at issue would "constitute an unwarranted invasion of personal privacy” within the meaning of Public Officers Law §87[2][b]) nor did the custodian claim that any personal privacy category enumerated in § 89(2) is applicable in this instance [see, also, Public Officers Law Article 6-A, the so-called  Personal Privacy Protection Law].

As to the merits of the request, the Appellate Division explained that a court must first determine whether any invasion of personal privacy would be unwarranted "by balancing the privacy interests at stake against the public interest in disclosure of the information."

The Appellate Division said that the speech at issue “excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy.” Although the speech did not name any individual candidate or political party, the complaints to SCI raised serious questions about the propriety of the speech and its publication on DOE's website.

Finding that there is a "significant public interest" in the requested materials, which may shed light on whether this matter was adequately investigated, the court indicated that SCI:

1. Failed to establish that the claimed privacy interests outweigh this public interest;*** and

2. Failed to demonstrate the applicability of the inter- or intra-agency exemption, since some or all of the materials may constitute "factual tabulations or data" or "final agency ... determinations," which do not fall within this exemption.

The Appellate Division directed SCI to “produce the requested information to the extent it constitutes factual data or final agency determinations” redacting “personal identifying information such as names, home addresses, dates of birth and social security numbers.” All other requested materials were to be given to the court for an in camera inspection [i.e., a review by the court “in chambers” in the course of an otherwise open trial].

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** These regulations govern the use of school buildings by political candidates, officials and organizations and the conduct of school employees and officers with respect to political campaigns and elections.

*** Although SCI had asserted that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers, the Appellate Division said such information could be redacted and thus did not provide a basis for withholding entire documents.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04237.htm