Selected reports issued by the New York State Comptroller September 13, 2016

Selected reports issued by the New York State Comptroller September 13, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

City Universityof New York – Control over integrated resources and services tool 

CUNYfirst replaced CUNY’s legacy computer systems as an integrated and flexible state-of-the-art program. Auditors, however, concluded that CUNY’s processes and controls did not adequately restrict CUNYfirst users’ access to ensure that individuals only had appropriate roles assigned. For example, a student had access to a business application that students normally cannot access. Multiple individuals also appeared to have roles for which they had no business purpose. For example, 22 employees outside of financial aid could apply for student loans for individuals other than themselves. Also, a student employee had unauthorized grade change capability. For the period January through May 2015, this student employee changed grades 127 times for other students. http://osc.state.ny.us/audits/allaudits/093016/15s34.pdf

State Education Department – ARC of Ulster-Green compliance with the reimbursable cost manual 

For the year ended Dec. 31, 2014, The ARC of Ulster Greene generally complied with state guidelines for reimbursement. Auditors identified $995 in other-than-personal-service costs charged to the programs that did not comply with SED’s requirements for reimbursement. http://osc.state.ny.us/audits/allaudits/093016/15s60.pdf

Energy Research and Development Authority – NY-Sun Incentive Program 

NYSERDA’s oversight of NY-Sun is adequate; however, auditors identified two areas where additional controls are necessary. NYSERDA established 210 days as the expected time required for installers to complete most projects, and an extension request is required if the project exceeds this timeframe. However, 1,568 projects not only have exceeded 210 days, but have been open for more than 300 days, and do not have an extension request. Auditors found NYSERDA had not completed the required inspections of the initial three jobs for some new installers, nor has it documented the reasons for the deviation. http://osc.state.ny.us/audits/allaudits/093016/15s91.pdf

 
State Universityof New York – Compliance with the Jeanne Clery Act [20 USC §1092(f)] 

An initial audit report issued in August 2014 found that certain SUNY colleges published inaccurate crime statistics on their Annual Security Reports or to the Department of Education which could affect the public's ability to accurately assess college safety and security and make valid comparisons among colleges. In a follow-up report, auditors found SUNY officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed. http://osc.state.ny.us/audits/allaudits/093016/16f4.pdf

Office of General Services – Hourly based information technology services 

Auditors found OGS does not have an effective process to ensure a candidate consultant’s qualifications meet the mandatory qualifications specified by the agencies using the Hourly Based Information Technology Services (HBITS) contract, so OGS could not ensure it paid the correct hourly bill rates.  In particular, OGS does not ensure the HBITS vendors fulfill their contractual obligation to verify that a candidate has the mandatory qualifications specified by the agencies, nor do OGS staff verify the mandatory qualifications. http://osc.state.ny.us/audits/allaudits/bseaudits/bse20160902.pdf

Westchester County Health Care Corp. – Supplemental payments to executive employees 

From 2013 through 2015, WCHCC paid 18 executives (with base salaries totaling about $21.6 million) almost $4.6 million in supplemental payments. The largest supplemental payments (totaling about $2.7 million) were made to the chief executive and the chief financial officer and accounted for almost 59 percent of the total paid. WCHCC officials stated that senior management had goals and were evaluated on achieving those goals before receiving their payments. During the audit period, senior managers often did not submit goals and achievements statements. Further, WCHCC officials could not provide written performance evaluations for any senior managers. Auditors identified other payments that may require further examination by WCHCC officials which, among other things, included sign-on and retention bonuses. Auditors also found that not all of the supplemental payments were reported to the Authorities Budget Office. http://osc.state.ny.us/audits/allaudits/093016/15s77.pdf

New York State Department of Civil Service expands opportunities for advances placement in generalist job titles

New York State Department of Civil Service expands opportunities for advances placement in generalist job titles

Source: State Personnel Management Manual Advisory Memorandum #16-04

Scott DeFruscio, Director of Staffing Services, New York State Department of Civil Service has advised State department and agency personnel, human resource, and affirmative action offices of a further expansion of the pre-approved minimum qualifications that can be used for advanced placement of eligibles on the Professional Career Opportunities [PCO] list or the State Education Department's Public Administration Trainee Transition [PATT] list to PCO Generalist Job Titles.

Such advanced placement appointments are made at the discretion of the appointing authority.

Eligibles who have a Juris Doctor, master's or higher-level degree in a field related to the duties of the position may be advanced placed to the Trainee 2 level of two-year traineeships. Eligibles possessing a duties-related Juris Doctor, master's or higher-level degree and one year of experience performing the duties of the journey level title may be advanced placed to the journey level of two-year traineeships.

An appointing authority has discretion in determining whether an eligible’s degree is related to the duties of the position and the Division of Classification and Compensation can provide assistance in making these determinations.

A PDF format version of Advisory Memorandum 16-04 is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-04.pdf

Processing an application for accidental disability retirement

Processing an application for accidental disability retirement

Magistro v DiNapoli, 2016 NY Slip Op 05893, Appellate Division, Third Department

Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, Appellate Division, Third Department

Members of the New York State Policemen's and Firemen's Retirement System injured on the job and and as a result are "physically or mentally incapacitated for performance of duty” may apply for an accidental disability retirement allowance pursuant to §363 of the Retirement and Social Security Law or, where his or her disability did not result from an accident, for a performance of duty disability retirement allowance pursuant to §363-c of the Retirement and Social Security Law.* 

For the purposes of  determining an individual's eligibility for an accidental disability retirement allowance pursuant to §363, in Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals defined the term accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact." Whether a "mischance" is an accident for the purposes of §363 is determined on a case-by-case basis.

The Magistro decision by the Appellate Division illustrates the application of the “accident standard” in determining the nature of the event that resulted in the injury while the Bodenmiller decisions explains the quasi-judicial procedures that are to be followed when considering an application an accidental disability retirement allowance.

The Magistro decision

City of Poughkeepsie police officer David M. Magistro was dispatched to a residence where a burglary had occurred. In the course of his checking the residence for possible entry points and crime scene evidence, he went to inspect a small porch that was connected to the house by wooden stairs. The stairs were partially covered by an overhanging roof. It had rained that morning and when Magistro stepped on the top step he slipped and slid down the handrail before eventually catching himself. As a result of injuries that he sustained, Magistro filed an application for accidental disability retirement benefits.**  

Magistro’s application was initially administratively denied on the ground that the incident did not constitute an accident for the purposes of the Retirement and Social Security Law. He  requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. The Comptroller subsequently adopted the Hearing Officer's findings and Magistro filed a petition pursuant to Article 78 of the CPLR challenging the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision noting that “[i]t is well settled that, for purposes of the Retirement and Social Security Law, an accident is a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," the Lichtenstein test. 

The court then explained that the burden is on the party seeking benefits to establish that the injury-producing event was accidental in nature and in order to be deemed accidental, an injury must result from a risk that is not an inherent part of the applicant's regular job duties or from a hazard that cannot be reasonably anticipated by the individual.

The Appellate Division explained that Magistro’s search of the residence following the burglary was a part of his routine duties as a police officer and he acknowledged that it was lightly raining when he conducted the search. Although he did not see water pooling on the stairs, he believed that they were wet and stated that he did not realize that the stairs were slippery until his foot slipped on the top stair.

The Appellate Division held that Magistro “could have reasonably anticipated the slippery condition of the stairs under the circumstances presented.”

Although Magistrotheorized that the stairs were slippery because they had been painted with interior paint and were not constructed in accordance with the relevant building code, the court said that this explanation of the cause of Magisto's injury presented a credibility issue for Comptroller to ultimately resolve. Here, said the Appellate Division, substantial evidences supported the Comptroller’s determination rejecting Magistro’s application for accidental disability retirement benefits and “we decline to disturb it.”

The Bodenmiller decision

Robert Bodenmiller, a police officer with the Suffolk County Police Department, received a call concerning a female patient who had left the grounds of a psychiatric facility. Bodenmiller found the woman at a nearby restaurant and, while he was questioning her, a man, who appeared to be carrying a weapon and was yelling loudly, rushed toward them. Bodenmiller turned toward the man, extended his left arm and fired his weapon twice, striking the man and injured his left shoulder during the incident.

Bodenmiller applied foraccidental disability retirement benefits but his application was administratively denied on on the ground that the incident as described by Bodenmiller did not constitute an accident within the meaning of the Retirement and Social Security Law. Bodenmiller requested a hearing and redetermination and, following the hearing, the Hearing Officer denied his application for the same reason. Ultimately the Comptroller accepted the Hearing Officer’s findings and denied Bodenmiller application.

In the course of the Article 78 proceeding that followed, the Comptroller conceded, and the Appellate Division agreed, that the Hearing Officer had applied the incorrect legal standard in rendering her decision.

Specifically, said the court, the Hearing Officer confined her analysis to whether the initial administrative determination was supported by substantial evidence and did not undertake making a re-determination, exercising “the same powers upon such hearing as upon the original application.”

Citing DeMaio v DiNapoli, 137 AD3d 1545, the Appellate Division ruled that such a deficiency constituted an error of law and required annulment of the Comptroller’s determination. The court then remitted the matter to the Comptroller for a new hearing. 

* While §363-c benefits are less generous than §363 benefits, the standard for allowing the benefit is less rigorous as the incident does not have be "accidental in nature." 

N.B. §363-c(h) provides that §363-c benefits are not available to individuals eligible to receive accidental disability retirement benefits pursuant to §363-b, which section applies to sworn officers of the Division of State Police who became disabled prior to July 1, 1974.

**  Magistro had also filed an application for performance of duty disability retirement benefits, which application was approved.

The Magistro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05893.htm

The Bodenmiller is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05894.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Selected reports issued by the New York State Comptroller during the week ending September 10, 2016

Selected reports issued by the New York StateComptroller during the week ending September 10, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

New York’s Service-Disabled Veteran-Owned Business program

The State's Office of General Services has made substantial progress establishing New York’s Service-Disabled Veteran-Owned Business program in a short time and the program would benefit from the adoption of a comprehensive statewide plan for implementation, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept16/090716a.htm?utm_source=weekly+news&utm_medium=email&utm_term=sdvob&utm_content=20160911&utm_campaign=fiscal+oversight

Audits of School Districts

Amherst Central School District – Financial Condition -
http://www.osc.state.ny.us/localgov/audits/schools/2016/amherst.pdf

Friendship Central School District – Procurement -
http://www.osc.state.ny.us/localgov/audits/schools/2016/friendship.pdf 

Harrisville Central School District – Claims Audit - 
http://www.osc.state.ny.us/localgov/audits/schools/2016/harrisville.pdf

 

Oswego County Board of Cooperative Educational Services (BOCES) – Separation Payments -
http://www.osc.state.ny.us/localgov/audits/schools/2016/oswegocoboces.pdf

Roslyn Union Free School District – Cash Receipts -

http://www.osc.state.ny.us/localgov/audits/schools/2016/roslyn.pdf

Sag Harbor Union Free School District – Child Care Program
http://www.osc.state.ny.us/localgov/audits/schools/2016/sagharbor.pdf

There is a presumption that an accident that occurred in the course of employment arose out of that employment

There is a presumption that an accident that occurred in the course of employment arose out of that employment

Oathout v Averill Park Cent. Sch., 2016 NY Slip Op 05892, Appellate Division, Third Department

The Workers' Compensation Board ruled that a claimant for workers’ compensation benefits employed as a custodial worker by the Averill Park Central School District sustained a compensable injury. The Board subsequently denied a request by the School District for reconsideration and/or full Board review.

The Averill Park Central School District, a self-insured employer and its third-party administrator [School District] had controverted the employee's claim for workers' compensation benefits. Following a hearing, the Workers' Compensation Administrative Law Judge found that the employee had sustained a work-related injury and awarded the claimant workers' compensation benefits.

The Appellate Division affirmed the Board’s decision, explaining that "Whether a compensable accident has occurred presents a question of fact for resolution of the Board and its decision will be upheld when supported by substantial evidence." Further, said the court, "absent substantial evidence to the contrary, a presumption exists that an accident that occurs in the course of employment arises out of that employment."

The claimant had testified that she had just finished cleaning the school gymnasium and was walking down a hallway with a coworker when she felt the sharp pain in her foot. This said the Appellate Division, gave rise to the statutory presumption.

Claimant’s treating physician had opined that the injury "maybe partially [due] to her metatarsus adductus"* while the School District’s medical expert who performed an independent examination on claimant, “was unable to draw a direct connection between the claimant's [medical] condition and the [claimant’s] injury.”

The School District argued that the statutory presumption was rebutted by proof that the claimant’s injury had not stemmed from an accident associated with her job duties but was an idiopathic condition, her congenital metatarsus adductus.

However, giving deference to the Board's resolution of any credibility issues involved in making its determination, the Appellate Division held that substantial evidence supported the Board’s determination that the injuries arose out of and in the course of claimant's employment and sustained its decision that the claimant had sustained a work-related injury.  

* Metatarsus adductus, also known as metatarsus varus, is a common foot deformity noted at birth that causes the front half of the foot, or forefoot, to turn inward.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05892.htm