Testing positive for marijuana

Testing positive for marijuana

OATH Index No. 1686/15

OATH Index No. 1685/15

In OATH 1686/15 the employee attributed his violation of his employer’s substance abuse policy to the employee’s difficulties with his former spouse.  

Following an accident involving a sanitation worker's truck and a civilian car, which resulted in injuries to passengers in both vehicles, the employee submitted to drug and alcohol testing in accordance with the department's substance abuse policy. At the OATH hearing the employee admitted to testing positive for marijuana and testified on own his behalf in mitigation of the employer's proposed penalty.

Although the employee attributed his violation of the policy to difficulties with his former wife, OATH Administrative Law Judge Ingrid M. Addison was not persuaded that he was not a risk to relapse. Judge Addison recommended that the employee be dismissed from his position, noting that the employee had violated the substance abuse policy three times, and had previously received a 44-day suspension for similar conduct.

In contrast, in OATH 1685/15 the employee’s claim that he had innocently ingested marijuana” as his defense after testing positive for marijuana was credited by the Administrative Law Judge.

In this case, the employee charged with testing positive for marijuana raised the defense of "innocent ingestion" of the drug. OATH Administrative Law Judge Kevin A. Casey recommended dismissal of the charge.

The worker testified that he attended a party, where he got into an argument with an acquaintance. As a “joke,” the acquaintance later gave the employee a marijuana-laced brownie, without telling him that it contained marijuana. The employee testified that he then ate the brownie not knowing that it contained marijuana. Judge Casey found that the acquaintance’s credible testimony corroborated the employee's version of events, particularly because the acquaintance had no motive to lie and she testified to participating in illegal activities against her own interests.

Finding that the employee did not knowingly ingest marijuana, ALJ Casey recommended that the charges be dismissed. 

The 1686/15 decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1686.pdf

The OATH Index No. 1685/15 decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1685.pdf

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Using personal cell phones in the course of conducting “official business”

Using personal cell phones in the course of conducting “official business”

Glenda Nissen v Pierce County, Supreme Court of the State of Washington, Docket #90875~3

In 2010 the Supreme Court of the State of Washington ruled that the State’s Public Records Act (PRA) applied to a record stored on a personal computer. The court explained that "[i]f government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined."*

In the Nissen case the Washington Supreme Court considered a similar issue: Does the PRA apply when a public employee uses a private cell phone to conduct government business?

The court held that "text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.”

Presumably any record regardless of its format concerning or related to “official business” found or stored on the private cell phone of a public officer or employee would be viewed by the court as a public record subject to the State of Washington’s PRA.

* O'Neill v. City of Shoreline, 170 Wn.2d 138

The decision is posted on the Internet at:

http://hr.cch.com/ELD/NissenPierceCounty.pdf

Audit reports for certain governmental entities posted on September 1, 2015

Audit reports for certain governmental entities posted on September 1, 2015

Source: Office of the State Comptroller

On September 1, 2015 New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the governmental entities listed and summarized below. Click on the material highlighted in color below to access the full report.

Ballston Spa Public Library

The board has not established procedures for the library’s collection and disbursement of donated funds, or for cash receipts collected at the circulation desk. The treasurer has not maintained adequate records for the money received from donations and fundraising activities. http://www.osc.state.ny.us/localgov/audits/libraries/2015/ballstonspa.pdf

Bovina Fire District
The district’s available fund balance has accumulated to more than 400 percent of the 2015 budgeted appropriations as of the end of 2014. In addition, the board has not formally established capital reserves. http://www.osc.state.ny.us/localgov/audits/firedists/2015/bovina.pdf

Brighton Memorial Library
The library has accumulated more than $750,000 in private funds as of the end of 2014 and it has no formal plan to use the money. The library maintains approximately $627,000 in mutual funds, fixed income securities and cash equivalents with two investment brokerage firms; these are improper investments at unauthorized financial institutions. http://www.osc.state.ny.us/localgov/audits/libraries/2015/brighton.pdf

Village of Cape Vincent
Payroll duties are not adequately segregated and there is no periodic management review of transactions, certification of payrolls or review of leave records. The board also did not clearly document its authorization of compensation for all village employees. http://www.osc.state.ny.us/localgov/audits/villages/2015/capevincent.pdf

Town of Cayuta
The board did not adopt, review, update or enforce adequate financial policies to ensure town resources were protected. The former clerk did not routinely issue duplicate receipts, record daily cash receipts properly, or make deposits intact. As a result, auditors identified a cash shortage of $465. http://www.osc.state.ny.us/localgov/audits/towns/2015/cayuta.pdf

Commack Public Library District
District officials did not adopt a procurement policy as required by state law. The board did not ensure disbursements from the discretionary fund were made in accordance with district bylaws. In addition, the board appointed an independent contractor as treasurer.
http://www.osc.state.ny.us/localgov/audits/libraries/2015/commack.pdf

Galen-Clyde Joint Fire District
The board could not appropriately monitor the district budget because it did not receive budget status reports. Auditors found the district routinely overspent its budget for the three-year period from 2011 through 2013. In addition, the board did not implement appropriate policies to protect information technology assets. http://www.osc.state.ny.us/localgov/audits/firedists/2015/galenclyde.pdf

City of Geneva
The city adopted unrealistic budgets from 2012-2014 because the manager did not use historical trends or prior year amounts when producing budgets. During this same time, fund balance was appropriated to finance operations and overall fund balance levels decreased significantly. http://www.osc.state.ny.us/localgov/audits/cities/2015/geneva.pdf

Town of Malone
The justices did not properly segregate cash receipt duties and did not provide oversight for receiving, depositing, recording and reporting cash receipts. In addition, accurate and complete bail records were not maintained and bank reconciliations and accountability analyses were not performed for all court bank accounts. The town also lacked comprehensive policies and procedures for preparing and processing payroll and maintaining leave time accruals for highway department employees. http://www.osc.state.ny.us/localgov/audits/towns/2015/malonejc.pdf

Village of Nelliston
The board did not establish policies and procedures to provide guidance to village employees or implement sufficient controls over leave accruals and payroll timekeeping to ensure that leave time was accurately accounted for. http://www.osc.state.ny.us/localgov/audits/villages/2015/nelliston.pdf

Town of Tuscarora
The town supervisor signed checks and reviewed monthly reports, but did not review bank reconciliations to ensure information recorded and reported was accurate. The board has not received any monthly financial reports since February 2015. http://www.osc.state.ny.us/localgov/audits/towns/2015/tuscarora.pdf

Central Valley School District
The treasurer does not oversee the application of her signature on checks or compare checks to the warrant prior to issuance. Consequently, there is an increased risk that improper disbursements or payment errors could occur. http://www.osc.state.ny.us/localgov/audits/schools/2015/centralvalley.pdf

Cornwall Central School District
District officials enacted budgets with planned operating deficits and used approximately $1.9 million of fund balance to finance district operations in fiscal years 2011-12 through 2013-14. http://www.osc.state.ny.us/localgov/audits/schools/2015/cornwall.pdf 

Cuba-Rushford Central School District
District officials overestimated expenditures by a total of $8.5 million over a four-year period ranging from 7 to 14 percent more than actual expenditures. In addition, unrestricted fund balance annually exceeded statutory limits and reserves are overfunded by approximately $3.2 million. 
http://www.osc.state.ny.us/localgov/audits/schools/2015/cubarushford.pdf

DeRuyter Central School District
In the past three fiscal years the board appropriated $675,000, $525,000 and $376,626 in fund balance to finance operations. In addition, the district has used general fund money to help subsidize the school lunch fund operations over the past several years. http://www.osc.state.ny.us/localgov/audits/schools/2015/deruyter.pdf

Margaretville Central School District
The board did not effectively manage the fund balance of the general fund. As a result, the district had unrestricted fund balance in the general fund totaling $670,000 (6.2 percent) of the following year’s appropriations as of June 30, 2014 and reserve fund balances that increased by almost $2 million (131 percent) over a five-year period. http://www.osc.state.ny.us/localgov/audits/schools/2015/margaretville.pdf

Newburgh Preparatory Charter High School
The board did not receive adequate monthly financial records, did not establish a sound budget process and did not obtain a required independent audit of the school’s financial records. Without accurate financial reports, the board had no assurance that expenditures did not exceed budgeted amounts and could not take proper timely actions when more than $26,000 in cash shortages occurred. http://www.osc.state.ny.us/localgov/audits/schools/2015/newburghprep.pdf

Trumansburg Central School District
The district’s menus were certified as being compliant with the new federal meal pattern requirements. However, district meals cost more to prepare than the revenue generated by sales. http://www.osc.state.ny.us/localgov/audits/schools/2015/trumansburg.pdf

and

Wappingers Central School District
Despite the use of a fuel management system, district officials do not review system activity reports to identify anomalies regarding quantities dispensed, fueling times and the odometer readings entered by employees. As a result, the district cannot properly account for how much fuel is pumped into specific vehicles and by whom. http://www.osc.state.ny.us/localgov/audits/schools/2015/wappingers.pdf

Proper and timely service of an action critical to going forward with the lawsuit

Proper and timely service of an action critical to going forward with the lawsuit

Angletti v Morreale, 2015 NY Slip Op 06647, Court of Appeals

Marcus Morreale initially declined to be designated as a candidate for the County Legislature, Niagara County, thereby creating a vacancy. Subsequently Morreale consented to be designated as the substitute candidate to fill the vacancy created by his own declination of the earlier designation and the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the candidate for the office.

Frances J. Angletti filed a formal objection to Morreale’s nomination with the County Boardof Elections but his objection was rejected by the Board.

The Court of Appeal’s decision notes that Angletti next commenced a proceeding in Supreme Court seeking to invalidate the Morreale “designating petition” and to enjoin the Board from placing Morreale's name on the ballot. Supreme Court signed an order to show cause dated the same day, July 22, 2015, authorizing service on Morreale by one of ten methods permitted.

Angletti utilized "nail and mail" service under the order to show cause, was required to affix the papers to the door of Morreale's residence "AND [enclose] the same in a securely sealed and duly prepaid wrapper addressed to [Morreale] at the address set forth in his . . . designating petition, and depositing the same with a depository of the United States Postal Service via Express Mail on or before the 23rd day of July, 2015."

Morreale answer to Angletti’s action raising several affirmative defenses, including the representation that Angletti’s action was not timely commenced.**

Supreme Court granted Angletti’s petition and ordered the Board to strike Morreale's name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced. However, the Court of Appeals, for reasons explained in its decision, elected to address with specificity only the issue upon which the dissent in the Appellate Division was grounded,*** inasmuch as it held that Morreale's other arguments were “without merit.”

The court explained that under Election Law §16-116, a petitioner is required to provide notice "as the court or justice shall direct," and "this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced."

Agreeing with the courts below that this proceeding was properly commenced in a timely manner, the Court of Appeals said that here “there is no dispute that [Angletti] complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23.”

Although Morreale argued that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period, the court disagreed, noting that “where the instrument of notice has been delivered by another prescribed method within the statutory period,” it has rejected such contentions concerning mailing, citing Serri v Heffernan , 298 NY 629.

As to “nailing” the papers, the Court of Appeals said that a decision that Morreale cited involving “nail and mail,” the papers [1] “were nailed to the outside wall of the residence instead of the door” and [2] the attempted service by mail on the final day "was inadequate and ineffectual to institute the proceeding."

In contrast, the Court of Appeals found that in Angletti’s situation, the instrument of notice had been properly nailed to Morreale’s door and delivered prior to the deadline.

Thus, said the court, the order of the Appellate Division should be affirmed.

* Nail and mail service requires the posting of the action on the door of the person's home and mailing a copy of the papers to the appropriate mailing address.

** July 23, 2015 was the last day to commence the proceeding under the 14-day period authorized by Election Law (see Election Law §16-102 [2]).

*** Two Appellate Division Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06647.htm

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