Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 13, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 13, 2015

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Employee paid for the same "work time" claimed in two different school districts

A Buffalo City School District technician was sentenced June 11, 2015 for claiming simultaneous work hours at two public school districts, according to an audit [see http://www.osc.state.ny.us/localgov/audits/schools/2015/buffalo.pdf] and investigation released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061115.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061115release

Comptroller released municipal audits for the following political subdivisions of the State:

Dunham Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/dunham.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Berlin

http://www.osc.state.ny.us/localgov/audits/towns/2015/berlin.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Galen

http://www.osc.state.ny.us/localgov/audits/towns/2015/galen.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Huron

http://www.osc.state.ny.us/localgov/audits/towns/2015/huron.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Inlet

http://www.osc.state.ny.us/localgov/audits/towns/2015/inlet.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Village of Johnson City

http://www.osc.state.ny.us/localgov/audits/villages/2015/johnsoncityjc.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Lake Ronkonkoma Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/lakeronkonkoma.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Louisville

http://www.osc.state.ny.us/localgov/audits/towns/2015/louisville.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Princetown

http://www.osc.state.ny.us/localgov/audits/towns/2015/princetown.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

and the

Town of Virgil

http://www.osc.state.ny.us/localgov/audits/towns/2015/virgil.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Finger Lakes Group Home overpaid for food and supplies

The State’s Office for People with Developmental Disabilities’ Finger Lakes Developmental Disabilities Service Office (DDSO) skirted state procurement laws for more than 1,400 purchases worth more than $1 million, gave one vendor an unfair advantage in obtaining the state’s business and overpaid for hundreds of household items, according to an [see http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20150612.pdf] released June 12, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061215.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061215release

NYC projects $3 billion surplus for 2015

New York City is projecting a surplus of $3 billion for fiscal year (FY) 2015 and a balanced budget for FY 2016 with relatively small gaps in the following three years, according to a review [see http://www.osc.state.ny.us/osdc/rpt1-2016.pdf] of the city’s updated financial plan released June 8, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/060815b.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=060815brelease

OATH pre-hearing discovery procedures

OATH pre-hearing discovery procedures

OATH Index No. 853/15.

In proceedings at OATH, some parties engage in informal discovery, although OATH rules of practice provide broad guidelines for discovery practices.

When a party fails to respond to discovery demands, the opposing party should make a pre-trial motion to compel production to the trial judge as soon as possible. Conversely, an objection to discovery should also be made as soon as possible.

Here, petitioner sought to exclude evidence offered by respondent as a sanction for respondent's failure to timely produce documents in response to reciprocal discovery. Administrative Law Judge Tynia D. Richard found respondent’s production inadequate but declined to impose a sanction because she did not find evidence that the non-compliance was willful. However, counsel was warned that similar conduct could result in sanctions in the future.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-853.pdf

Filing disciplinary charges against an individual is a condition precedent for a demand to an administrative disciplinary hearing

Filing disciplinary charges against an individual is a condition precedent to a demand for an administrative disciplinary hearing

2015 NY Slip Op 00587, Appellate Division, Third Department

Following an investigation, New York State’s Division of Human Rights [SDHR] issued a determination of no probable cause to believe that the employer, a school district [District] had engaged in unlawful discriminatory practices with respect to the compliant filed with it by a former District employee [Complainant]. Complainant challenged SDHR’s determination.

Supreme Court dismissed Complainant’s Article 78 petition; the Appellate Division sustained the Supreme Court’s ruling.

One of the issues considered by the Appellate Division was Complainant’s argument concerning her request for a disciplinary hearing pursuant to Education Law §3020-a.

While the Appellate Division said that this issue was “unpreserved because she did not raise it before SDHR or Supreme Court,” it observed that Complainant’s argument “lacks merit because the [District] never filed formal disciplinary charges against her.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00587.htm

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

USCA, Second Circuit, Docket #14-877

The Federal District Court dismissed an ERISA action brought by a pension plan participant seeking a pension on the basis of permanent disability. The applicant had challenged the Pension Plan Fund’s [Fund] reliance on a determination made by the Social Security Administration [SSA] as to his eligibility for disability pension benefits available to enrollees in the Plan.

The U.S. Circuit Court of Appeals affirmed the District Court’s ruling, explaining that the terms of the pension plan at issue gave the Fund discretion to determine an applicant's eligibility for benefits under the plan and the Fund reliance on the Social Security Administration’s determinations with respect to applicant’s disability and eligibility for disability retirement benefits in accordance with the Plan’s policies and procedures was neither arbitrary nor capricious.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/doc/14-877_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/hilite/

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination
Costco Wholesale Corp. v New York State Div. of Human Rights, 2015 NY Slip Op 04587, Appellate Division, First Department

The New York State Division of Human Rights [Division], after a hearing, found that Costco Wholesale Corporation [Costco] had violated the State Human Rights Law (Executive Law §296) when it included certain questions on its electronic application form for employment and ordered Costco to pay $40,000 in civil fines and penalties.

Costco appealed and the Appellate Division unanimously annulled the Division’s determination and the fine and penalties that it had imposed on Costco.

The Appellate Division said that the Division’s determination that Costco had violated Executive Law §296(15) and Article 23-A of the Corrections Law is not supported by substantial evidence as the evidence in the record did not show that Costco’s online employment application system automatically disqualified applicants with a prior criminal conviction.

The court said that the evidence showed that questions that could lead to an applicant’s “automatic” disqualification concerned the applicant’s “legal documentation to work in the United States,” his or her willingness to undergo a criminal background check and employment reference check, his or her willingness to submit to a drug test, whether the applicant states the he or she is able to perform the essential functions of the job, and whether the applicant is 18 years of age or older.

As to an applicant’s response to a question concerning his or her “prior conviction,” the Appellate Division commented that the question was specifically “not an automatic bar to employment, as stated in the application itself.“ The Appellate Division said that the fact that the complainant's application was designated as "pre-screened" indicating that it had passed through the online portion of the hiring process and “was not marked ineligible.”

Nor, said the court, was there any evidence that Costco’s grading criteria for applicants with convictions was used in connection with the online application. Instead, noted the Appellate Division, the evidence showed that this non-mandatory guideline was used only when an applicant had reached the background check stage of the hiring process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04587.htm