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May 02, 2018

Audits of State Departments and Agencies published by the State Comptroller


Audits of State Departments and Agencies published by the State Comptroller
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations were issued on May 1, 2018

Click on text highlighted in color to access the full report.


Office of Children and Family Services (OCFS): Oversight of Residential Domestic Violence Programs (2017-S-16)
Based on the amount and quality of information provided by OCFS, auditors determined OCFS central office does not maintain adequate oversight of domestic violence (DV) residences. OCFS officials placed constraints on the audit, including delays in and denial of access to records needed to evaluate the effectiveness of their oversight. As a result, there is considerable risk that material information concerning OCFS’ oversight of DV programs was withheld from auditors.

Office of General Services (OGS): Service-Disabled Veteran-Owned Business Program Implementation (2017-F-28) (Follow-up)
An initial audit released in September 2016 found OGS had made substantial progress carrying out its responsibilities to implement the program. However, the agency had not yet developed a written, comprehensive statewide plan for implementing the program. In a follow up, auditors found the agency had addressed the problems identified in the initial audit.

Department of Health: Medicaid Program: Inappropriate Payments Related to Procedure Modifiers (2016-S-63)
Auditors identified about $2.6 million in inappropriate payments made to providers for evaluation and management services for surgery patients from
Jan. 1, 2012 to March 31, 2017.

Division of Homeland Security and Emergency Services: Continuity of Operations Planning (2017-S-33)
The division is responsible for coordinating emergency management planning efforts in the state. The division encourages and supports state agency efforts to develop agency-specific Continuity of Operations Plans (COOPs), which each state agency is required to have in place for each of its facilities, and has developed a series of guidance documents intended to help agencies prepare COOPs. Auditors tested of a sample of 11 state agencies, finding that they had incorporated certain features of COOP best practices. However, auditors identified some opportunities for improvements.

Division of Housing and Community Renewal: Enforcement of the Mitchell-Lama Surcharge Provisions (2017-S-12)
While some exceptions were noted, surcharges were generally properly calculated and assessed for the tested transactions at the sampled developments. However, there were significant deficiencies in the practices used to confirm the accuracy of tenants’ self-reported income at two (
Co-op City and Rochdale Village) of the three developments reviewed.

Metropolitan Transportation Authority (MTA): Staten Island Railway (SIR): Selected Safety and Security Equipment at Train Stations (2017-S-84)
From Jan. 1, 2014 through Sept. 12, 2017, SIR did not have written preventive maintenance procedures for security equipment installed at stations. For the period
Oct. 1, 2014 to May 31, 2017, a review of the inspection records provided showed that some inspections were not done. In October 2007, the MTA started a project to improve customer security. There were significant delays that prevented some equipment from becoming fully operational.

Metropolitan Transportation Authority: New York City Transit: Selected Safety and Security Equipment at Subway Stations (2016-S-92)
Auditors determined that from
Jan. 1, 2014 to Sept. 30, 2016, not all of the MTA’s New York City Transit unit’s security equipment’s scheduled preventive maintenance activities were performed. For example, auditors reviewed all 223 cameras at ten subway stations and found that 31 percent expected preventive maintenance visits for closed circuit TV cameras and their affiliated monitors were not done. Auditors also found that of the 9,223 trouble calls for cameras and recording devices reported from Jan. 1, 2014 to Sept. 30, 2016, 26 percent took longer than the three-day target to be repaired or addressed.

State Education Department: Alternatives For Children: Compliance with the Reimbursable Cost Manual (2017-S-44)
For the three fiscal years ended June 30, 2015, auditors identified $253,494 in ineligible costs that the school claimed for state reimbursement including $122,966 in salary costs that were improperly charged directly to the programs it runs for the state. Auditors determined those costs were administrative in nature and should have been allocated across all of Alternatives’ programs.

State Education Department: Interdisciplinary Center for Child Development: Compliance with the Reimbursable Cost Manual (2017-S-31)
For the three fiscal years ended June 30, 2015, auditors identified $453,670 in reported costs that did not comply with the requirements for reimbursement, including $274,830 in a less-than-arm’s-length lease transaction where the reimbursed costs exceeded the owner’s actual cost and $176,793 in compensation related to excess staffing of teacher aides/assistants.

State Education Department: School for Language and Communication Development: Compliance with the Reimbursable Cost Manual (2017-S-59)
For the three fiscal years ended June 30, 2015, auditors identified $38,741 in ineligible costs the school reported for state reimbursement. The ineligible costs included $28,271 in pension benefits for administrative employees that exceeded the benefits available to direct care preschool employees.

Department of Taxation and Finance: Property Tax Credits (2018-BSE8-01)
Auditors identified and returned 15,313 questionable or inappropriate property tax credits for $5,779,567 due to calculation errors, deceased taxpayers, or duplicate payments or home owners or properties that were not eligible for the credits.


April 30, 2018

Rules of Practice - New York City Office of Administrative Trials and Hearings


New York City Office of Administrative Trials and Hearings

Rules of Practice 

[as of May 1, 2018]


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


CHAPTER I

  Subchapter A - General Matters


 

                                                                                           Subchapter B - Rules of Conduct

 View Chapter I Subchapter B

                                                                                           Subchapter C - Pre-Trial Matters



                                                                                            Subchapter D - Trials and Hearings



CHAPTER II

 Subchapter A - Additional Rules for Prequalified Vendor Appeals


Subchapter B - Reserved


Subchapter C - Additional Rules for Human Rights Cases

 

View Chapter II Subchapter C


Subchapter D

Additional Rules for Post-Seizure

Review of Impoundment of Vehicles



Employee terminated following the loss of the license required to perform the duties of the position


Employee terminated following the loss of the license required to perform the duties of the position
Williams v City of Yonkers, 2018 NY Slip Op 02827, Appellate Division, Second Department

The appointing authority informed Glennie Williams that as he no longer possessed a valid New York State class B commercial driver license which was a minimum qualification for his position unless he obtained such a license by August 28, 2009, his employment would be terminated.

Although the Williams' complaint was dismissed on procedural ground,* set out below are a number of decisions in which the impact of the employee's loss of a license required to perform the duties of the position was considered.

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

It is well settled that where a statute requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so. Although such a person may continue to be "qualified" to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. 

In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183.

The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. There is nothing, however, that would prevent the appointing authority from placing the individual in another position for which he or she is qualified for which a license is not required.

Typically courts view the loss of the required credential, be it a license to practice law or medicine, teach, drive a motor vehicle or pilot an aircraft, as barring the individual from providing such service, or performing such tasks, by operation of law. Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position.

In contrast, see Matter of Martin ex rel Lekkas, 86 AD2d 712. In Lekkas the court held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

All that appears to be necessary in a “lost license or permit” situation is for the appointing authority to make a reasonable inquiry to determine if the employee possesses the license or permit required to lawfully perform the duties of the position prior to his or her being barred from performing the duties of the position.

The basic rules concerning the possession of a valid license or permit:

1. Where the license or permit is essential to the individual's lawfully performing his or her work, the courts have approved the termination or suspension without pay of the employee from his or her position if the required license or permit is revoked or suspended or has expired.

2. If the possession of the license or permit is not essential to the performance of the duties of the position, the courts have ruled that the failure to have a valid license or permit is not fatal to the employee's continuation in service. This situation is typical where a driver's license may be included as a minimum qualification for appointment to the position but the individual is not required to operate a motor vehicle in order to perform his or her duties.

Additionally, PERB has ruled that where the duties of a position require the incumbent to possess a valid license, the employer's issuing a directive that the appropriate employees obtain, or maintain, such a license is a non-mandatory subject of collective bargaining [see CSEA Local 1000 and State of
New York, 27 PERB 3018].

* The  Williams decision is posted on the Internet at: 


April 27, 2018

Conference to Commemorate 50th Anniversary of Taylor Law



Conference to Commemorate 50th Anniversary of Taylor Law

The conference will be held from May 10-11, 2018 at the Desmond Hotel and Conference Center in Albany, New York.


The conference Agenda is posted on the Internet at:



Additional information on the Taylor Law, the Public Employment Relations Board, and the 50th anniversary of the Taylor Law can be found on the PERB website at www.perb.ny.gov.

April 26, 2018

Audit reports released by State comptroller DiNapoli on April 25, 2018


Audit reports released by State comptroller DiNapoli on April 25, 2018
Click on text highlighted in color to access the full report.

Brentwood Public Library – Leave Accruals (Suffolk County)
Leave accrual records for business office employees were overstated by a total of 272 hours. Vacation, sick and personal leave earned exceeded collective bargaining agreement limits, and vacation and sick leave was accrued and/or used at rates other than specified.

Emergency Service Communication Surcharges (2017MS-4)
Each county in this audit could improve controls over E911 revenues. One county (
Schenectady) made significant improvements in controls over E911 revenues. However, because no resource exists to identify all the communication suppliers operating within the counties audited, county officials were unable to determine whether all E911 surcharges were received from their suppliers. As a result, officials cannot be sure that their county received all the surcharges to which it was entitled.

Village of Milford – Board Oversight (Otsego County)
The clerk-treasurer performs all village financial transactions with little board oversight, including the billing and collection of water usage charges, the collection of real property taxes and the disbursement of village funds. Although the mayor dual-signs checks with the clerk-treasurer, no one reviews bank statements, canceled check images or monthly reports and reconciliations that the clerk-treasurer prepares. Furthermore, the board did not perform the required annual audit of the clerk-treasurer’s records.

Village of Nassau – Budgeting (Rensselaer County)
While the adopted general fund budgets included reasonable revenue estimates, appropriations significantly exceeded expenditures. The variance between appropriations and expenditures has increased from 5.9 percent in 2014-15 to 30.9 percent in 2016-17. The board’s budgeting practices resulted in an unrestricted fund balance increase of $97,547 (25.7 percent) over the three-year period.

Town of Pendleton – Special Districts (Niagara County)     
The town has three sewer districts but the supervisor recorded and reported all sewer operation revenues and expenditures as one special district. In addition, the board does not adopt individual budgets for each sewer district. Capital costs are allocated to three sewer districts, but operating and maintenance costs are combined under one district

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com