New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of General Services (OGS) and the State Education Department (SED): Preferred Source Contracting (Follow-Up) (2017-F-15)
New York state’s Preferred Source Program grants “preferred source” status to Corcraft and not-for-profit organizations that serve and employ the blind, severely disabled, and veterans. OGS is the state’s central procurement agency. The New York State Industries for the Disabled (NYSID) is the agency designated to facilitate orders among agencies for the severely disabled and veterans’ workshops. SED is responsible for the monitoring and oversight of NYSID and for ensuring NYSID is in compliance with all applicable regulations. An audit released in June 2016 found that SED provided only minimal oversight of NYSID offering little assurance NYSID was awarding contracts in a manner that best meets the purpose of the program as well as meeting program requirements. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit.

Department of Health (DOH): Long Island Association for AIDS Care (LIAAC) (2017-BSE6-0)

For the period of February 2014 through May 2015, auditors found the claims for payment LIAAC submitted contained overbillings of $15,777. The claims were returned to DOH. Auditors also identified $95,918 in refunds and reimbursements from other entities for medical and dental expenses paid to LIAAC’s related entity and group medical benefits provider, the Long Island Network of Community Services, which should have been remitted to DOH.

Department of Health: Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services (Follow-Up) (2017-F-11)

An initial audit report issued in March 2016 found the owner of a Medicaid eye care provider inappropriately enrolled as Medicaid recipients and inappropriately billed Medicaid for vision services. In a follow up, auditors found that of the initial report’s eight audit recommendations, two were implemented, five were partially implemented, and one has not yet been implemented. In March of 2016, the Office of the Medicaid Inspector General (OMIG) commenced an investigation of the provider, the Provider’s billing company, and the recipients identified in the original audit. At the time of our follow-up review, the investigation was ongoing and OMIG officials stated that recoveries of Medicaid overpayments and corrective actions would occur, if warranted, when the investigation was complete.

Department of Health: Improper Payments for Recipients No Longer Enrolled in Managed Long Term Care Partial Capitation Plans (Follow-Up) (2017-F-10)

An initial audit released in March 2016 found that Medicaid paid plans $21.4 million in capitation payments for recipients who were subsequently disenrolled. By the end of the audit fieldwork, some capitation payments had been recouped and about $12 million still needed to be recovered from the plans. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit report. However, further actions are still needed as only $3.4 million of the $12 million in improper capitation payments had been recovered.

Higher Education Services Corporation, Tuition Assistance Program: New York College of Health Professions (2016-T-4)

Auditors determined the College of Health was overpaid $298,224 because school officials incorrectly certified some students as eligible for State financial aid awards. Incorrect certifications include eleven students who received awards but did not demonstrate academic preparedness and eight students who did not meet the requirements for full-time status.

Metropolitan Transportation Authority, Triborough Bridge and Tunnel Authority (TBTA): Selected Aspects of Collection of Bridge and Tunnel Tolls and Feels (2016-S-64)

While TBTA makes efforts to collect unpaid tolls, we found $11.3 million in tolls that were either written off ($5.4 million in OTG tolls) or uncollected ($2.3 in OTG tolls and $3.6 in Deferred Tolls).In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. TBTA officials advised that they consider the fees a deterrent, but have waived as much as 90 percent of fees due upon receipt of the payment of the unpaid tolls. TBTA also did not fully utilize the new DMV registration suspension program, as evidenced by submitting only a limited number of registrations for suspension each week after the initial introductory period.

State Education Department: Lifeline Center for Child Development, Inc., Compliance with the Reimbursable Cost Manual (2016-S-95)

Lifeline is a Queens, New York-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5. For the three fiscal years ended June 30, 2015, auditors identified $304,192 in reported costs that did not comply with state guidelines, including $80,506 in bonuses.

State Education Department: HeartShare Human Services, Inc., Compliance with the Reimbursable Cost Manual (2016-S-45)

HeartShare is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5.  For the three fiscal years ended June 30, 2014, auditors identified $1,529,789 in reported costs that did not comply with state requirements, including: $891,018 in non-program expenses for compensation paid to 71 individuals who did not work for HeartShare’s SED preschool cost-based programs; $204,855 in ineligible employee bonuses that did not comply with SED’s reimbursement requirements; and $201,237 in over-allocated expenses, including $60,338 in personal service costs and $140,899 in other than personal service costs.

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website 
Source: The Empire Center* 

Click on text highlighted in color  to access the text of the agreements. 

Local government and school district collective bargaining agreements were added to SeeThroughNY, the Empire Center’s transparency website on November 21, 2017. The newly added collective bargaining agreements include 120 public school teacher contracts, 28 firefighter contracts, and 62 police contracts.

In addition, 164 school superintendent employment contracts have been updated on SeeThroughNY.

Broken down by region, the contracts are distributed as follows:

43 in the Capital Region, including North Colonie’s superintendent contract and Saratoga Springs’ fire contract;

26 in Central New York, including teacher contracts in Onondaga County and fire contracts in Oswego County;

33 in the Finger Lakes, including fire contracts in Monroe County and teacher contracts in Genesee County;

63 on Long Island, including 11 teacher contracts in Nassau County and 12 in Suffolk County;

71 in the Mid-Hudson region, including police contracts in Westchester County;

30 in the Mohawk Valley, including three superintendent contracts in Oneida County and four in Herkimer County;

28 in the North Country, including superintendent and teacher contracts for Clinton County;

34 in the Southern Tier, including police contracts for Tompkins County and fire contracts for Broome County; and

46 in Western New York, including the Buffalo city schools’ first contract with its teachers union in 12 years.

More than 6,700 current and expired public-sector union and school superintendent employment contracts are now searchable on SeeThroughNY’s contract database, the most comprehensive in the state.

Complete copies of hundreds of local government and school district labor union contracts were added today to SeeThroughNY, the Empire Center’s transparency website.

* The Empire Center, based in Albany, New York, self-describes itself as an independent, non-partisan, not-for-profit think tank dedicated to promoting policies to make New York a better place to live, work and do business.

Suing public officials and government entities for allegedly making defamatory statements concerning an individual

Suing public officials and government entities for allegedly making defamatory statements concerning an individual

Brummel v Board of Trustees of the Village of E. Hills, et al., N.Y., 2017 NY Slip Op 07971, Appellate Division, Second Department

Richard A. Brummel, alleging that the village's mayor made defamatory statements about him to another person and that person reported those statements in an article published in a local newspaper, sue the mayor, the village board, the newspaper and the editor of the newspaper.

The newspaper and its publisher moved to dismiss Brummel's complaint for failure to state a cause of action. The mayor and the defendant village board separately moved to [1] dismiss the complaint against the major and [2] for failure to state a cause of action and [3] to require Brummel seek leave of court to commence any future actions against it.

Supreme Court granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants to dismiss the complaint but did not address that branch of the Village's motion that would require Brummel to seek leave of court to commence any future actions against them. Brummel appealed and the mayor and the village cross-appealed.

The Appellate Division ruled that Supreme Court properly granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants seeking to dismiss the complaint insofar as asserted against each of them for failure to state a cause of action. The court, citing Gross v New York Times, 82 NY2d 146, explained that as "falsity is a necessary element of a defamation cause of action and only facts 'are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'"

In this regard, distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean." In so doing, the Appellate Division said that courts must consider:

1. whether the specific language has a precise meaning that is readily understood;

2. whether the statement is capable of being proven true or false;

3. whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact; and

4. [quoting from Gross] "whether a reasonable [reader] could have concluded that the [articles were] conveying facts about the plaintiff."

Accepting the allegations in the complaint as true and affording Brummel the benefit of every favorable inference, the Appellate Division concluded that Brummel "did not state a cause of action to recover damages for defamation as some of the statements alleged to have been made 'do not have a precise meaning' while others are hyperbolic and incapable of being proven true or false."

Considering the context of the alleged statements, the court opined that "a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about [Brummel]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07971.htm

NYS Governor Cuomo announces administration appointments

NYS Governor Cuomo announces administration appointments

Source: Officer of the Governor

On November 20, 2017, New York Governor Andrew M. Cuomo announced the following  appointments to his administration.

Cathy Calhoun has been appointed Director of State Operations. Previously, Ms. Calhoun served as Acting Commissioner of the Department of Transportation, leading the Governor's landmark $100 billion, five-year infrastructure plan to help reduce congestion and air pollution, and improve the safety of motorists on New York roads. Ms. Calhoun previously served as Chief of Staff at the Department of Transportation. Ms. Calhoun previously served as Deputy Comptroller for Intergovernmental Affairs for Comptroller Thomas DiNapoli and as a Central New York representative for former U.S. Senator Hillary Clinton. Ms. Calhoun also previously worked for former Governor David Paterson in intergovernmental affairs.

 

Linda Lacewell, Esq. has been appointed Chief of Staff and Counselor to the Governor. In that senior role, Ms. Lacewell will oversee Executive Chamber operations, as well as ethics and law enforcement matters. Ms. Lacewell most recently served as executive director of the Cancer Breakthroughs 2020 at the Chan Soon-Shiong NantHealth Foundation in Santa Monica, California. Prior to that, Ms. Lacewell served as chief risk officer and counselor to Governor Cuomo where she built and implemented the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly special counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She also served as special counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. Prior to that, Ms. Lacewell spent nine years as an assistant U.S. attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General's Award for Exceptional Service. Ms. Lacewell earned her B.A. from New College of the University of South Florida and her J.D. with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She formerly served as an adjunct professor at New York University School of Law, teaching ethics in government, we as well as an adjunct professor of law at Fordham University School of Law, teaching international criminal law.

 

Letizia Tagliafierro, Esq. has been appointed Deputy Secretary for Intergovernmental Affairs and Special Counsel to the Governor. Ms. Tagliafierro presently serves as Special Counsel for Public Safety. Prior to that, Ms. Tagliafierro served as Deputy Commissioner of the Criminal Investigations Division at the New York State Department of Taxation and Finance and as the Executive Director and Director of Investigations and Enforcement of the New York State Joint Commission on Public Ethics. Ms. Tagliafierro also served as Director of Intergovernmental Affairs in the Executive Chamber, Special Counsel for the New York State Attorney General, and Assistant District Attorney in Erie County. Ms. Tagliafierro holds a J.D. from Albany Law School and B.A. from SUNY University at Albany.

 

Paul Karas has been appointed Commissioner of the Department of Transportation to continue the Governor's $100 billion investment plan to modernize aging infrastructure across the state. Before joining the Cuomo Administration, Mr. Karas served for four years as Vice President and Manager of RS&H, Inc., a transportation and buildings infrastructure consulting firm. Prior to that, he served as President and Founder of Karas Associates Co., an infrastructure development consultancy. Mr. Karas has extensive experience working at the Port Authority of New York/New Jersey, where he served as director of the $3.2 billion John F. Kennedy International Airport Redevelopment Program, and he previously served as the Commissioner of Public Works for the City of Chicago for three years. In 2004, Mr. Karas was appointed by the Illinois legislature to the Northeastern Illinois Regional Transportation Task Force, and in 1997, he was appointed by the U.S. House of Representatives to the Blue-Ribbon Advisory Committee for developing solutions to funding and operating concerns regarding Amtrak. Mr. Karas received his Bachelor of Arts in Civil Engineering from the University of Notre Dame, and a Master's degree from the University of Michigan.

 

Richard White, Esq. has been appointed Deputy Secretary for Public Safety. Previously, Mr. White led the Tenant Protection Unit at New York State Homes and Community Renewal, a unique statewide unit which proactively enforces landlord obligations to tenants and imposes strict penalties for failure to comply with HCR orders and New York's rent laws. Prior to working for Governor Cuomo, Richard R. White served as Of Counsel to the commercial real estate firm of Cyruli Shanks LLP, with a focus in government affairs, compliance, and complex criminal litigation. Before Cyruli Shanks, Mr. White served at the highest levels of governmental agencies and authorities in New York City; serving as Deputy Commissioner for Investigation, Trials & Litigation at the New York City Department of Correction and Deputy Commissioner of Operations at the New York City Department of Probation. Previously, for over a decade, Mr. White served as a Senior Trial Attorney for Robert M. Morgenthau in the Manhattan District Attorney's Office. Mr. White received a Bachelor of Arts degree in Economics from Franklin & Marshall College, his law degree from Delaware Law School, was an Executive Education Graduate at Harvard University's John F. Kennedy School of Government and was a recipient of Harvard Law School's Program on Negotiation for Senior Executives. Commissioner White is admitted to practice law before the courts of New York, New Jersey, the District of Columbia, the United States District Courts of the Southern and Eastern Districts of New York, the United States District Court for the District of New Jersey and before the United States Supreme Court. 

Peter Ajemian has been appointed Deputy Communications Director for Transportation. Prior to joining the Governor's Office, he served as Chief of Staff to State Senator Brad Hoylman. Previously, he was the primary spokesman and Senior Adviser for Communications on Attorney General Eric Schneiderman's successful re-election campaign. He has also served as Senior Vice President at the consulting firm Marathon Strategies, where he coordinated communications and research strategy on four successful state ballot initiatives legalizing same-sex marriage in Washington, Maine, Maryland and Minnesota. He is a graduate of Boston University and The New School.

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Issuing a certificate of good faith authorizing the indemnification of expenses incurred by school personnel in defending a proceeding arising from an act or omission of the individual

Decisions of the Commissioner of Education, Decision No. 17,245

A parent filed an application with the Commissioner of Education seeking the removal of the superintendent [Superintendent] of the school district.

The Commissioner ruled that the parent's application must be denied on procedural grounds, whereupon the Superintendent ask the Commissioner to issue a Certificate of Good Faith.

Such a certificate is issued by the Commissioner for the sole purpose of authorizing a school board to indemnify a school district officer, and certain other individuals, for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the individual's power or performance of his or her official duties.*

The Commissioner said that it is appropriate to issue such certification unless it is established on the record that the requesting school district officer acted in bad faith. Here, however, the application filed with the Commissioner has been denied on procedural grounds. Nevertheless, the Commissioner said that as there has been no finding that the Superintendent acted in bad faith with respect to the allegations in the Parent's application, "to the extent such a certificate is necessary, I hereby certify that [the superintendent] is entitled to receive the requested certificate."

Similarly, §17 of the Public Officers Law provides for the defense and indemnification of officers and employees of the State as the employer in such situations while §18 of the Public Officers authorizes a political subdivision of the State, by the adoption of a of local law, by-law, resolution, rule or regulation to provide for the defense and indemnification of its officers and employees.

* §3811.1 of the Education Law provides that the "costs, expenses and damages" incurred by a trustees or board of education, school district officers, and other individuals designed in the statute in defending any action brought against them "shall be a district charge and shall be levied by tax upon the district." Paragraph (c) of §3811.1, in pertinent part, provides that "it shall be certified by the court or by the commissioner of education, as the case may be, that [the individual] appeared to have acted in good faith with respect to the exercise of his [or her] powers or the performance of his [or her] duties under this chapter.

The full text of the decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17245