Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

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State Education Department: Kennedy Child Study Center: Compliance with the Reimbursable Cost Manual (2017-S-7)Kennedy 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 three and five years. During the 2013-14 school year, Kennedy served about 345 students. The New York City Department of Education (DoE) refers students to Kennedy and pays for its services using rates established by SED. The DoE is reimbursed by SED for a portion of its payments to Kennedy. For the three fiscal years ended June 30, 2014, auditors identified $612,781 in reported costs that did not comply with state guidelines for reimbursement.
       
Public Service Commission: Pipeline Safety Oversight (Follow-Up) (2017-F-20)
An initial report issued in March 2016 found Department of Public Service (DPS) staff working under the Public Service Commission did not verify the accuracy of the information on employee/contractor qualifications maintained by individual operators. DPS staff rely on this data during field audits. In addition, DPS had not set up a process to identify instances where operators failed to notify them of specific gas-related incidents as required. In a follow-up, auditors determined DPS officials made significant progress in addressing the issues identified in the initial audit.

New York City Department for the Aging: Congregate Meal Services for the Elderly (2016-N-5)
Auditors found that DFTA officials could not demonstrate that they contracted with optimally located senior centers to ensure the maximum number of eligible senior citizens can take advantage of the congregate meals being offered. DFTA did not perform any analysis to determine whether the costs submitted by sponsors were reasonable.  Auditors also reviewed the sponsors’ administrative costs for four randomly selected senior centers and found that one overstated its February 2016 invoice by $12,006, and may have received $120,570 in overpayments during the fiscal year ended June 30, 2016.

New York State Health Insurance Program: United HealthCare (UHC): Improper Payments for Medical Services Designated By Modifier Code 59 (Follow-Up) (2017-F-23)
An initial audit report released in January 2015, identified 13 claims out of a sample of 245 that were overpaid by $39,345 because a distinct or independent service was not provided as required even though the services were designated as such with modifier 59. Based on statistical sampling techniques, auditors estimated that UHC overpaid between $1.6 million and $5.2 million for services that included modifier 59 during the one-year period ending Aug. 31, 2013. In a follow-up, auditors found UHC officials made significant progress in addressing the issues identified in the initial audit. UHC also recovered $29,856 of the $39,345 in identified overpayments.

State University of New York: Compliance With Payment Card Industry (PCI) Standards (Follow-Up) (2017-F-24)
An initial audit report issued in June 2016 found that although SUNY schools were generally knowledgeable about PCI compliance and the need to protect credit card data from unauthorized access, a range of weaknesses were found. In a follow-up, auditors found SUNY schools and the SUNY System Administration have made significant progress in implementing the recommendations identified in the initial report.

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department

Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08921.htm

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions

Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00205.htm

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[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).

Informal Opinions of the Attorney General

Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017]   

A change in the use of municipal parking spaces on parkland must be authorized by special legislation.

Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    

The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer terminated following being found guilty of  downloading and possessing child pornography

2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09243.htm