New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

On January 10, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Department of Corrections and Community Supervision (DOCCS): Oversight of Sex Offenders Subject to Strict and Intensive Supervision and Treatment (Follow-Up) (2018-F-21)
The Sex Offender Management and Treatment Act requires that Strict and Intensive Supervision and Treatment (SIST) parole officers to have a minimum number of monthly contacts with paroled offenders. An initial audit identified weaknesses in officers meeting these requirements and significant differences in compliance among the locations tested. Auditors also found that officers didn’t adequately document their responses to electronic monitoring alerts. In a follow-up, auditors found DOCCS has made significant progress and implemented all of the recommendations.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (Follow-Up) (2018-F-30)
An initial audit found DASNY generally monitored contractors and sub-contractors on its projects to ensure they paid employees at the prevailing wage rate, but auditors found some shortcomings. In a follow-up, auditors found DASNY has made some progress. Of the two prior audit recommendations, one was implemented and one was partially implemented.

Office of General Services (OGS): Food Metrics Implementation (Follow-Up) (2018-F-23)
State law requires OGS and the Department of Agriculture and Markets to develop regulations, establish guidelines, and provide training on New York state food purchasing to agency personnel involved in the acquisition process. OGS is also responsible for tracking data on state agencies’ food purchases and for providing a Food Metrics Annual Report each year detailing these purchases. An initial audit report found that the two Food Metrics Annual Reports completed by the time of the initial audit fell short of providing complete and reliable information regarding the state’s efforts to support its farm and agricultural businesses. In a follow-up, auditors found OGS has made significant progress in correcting the problems.

Department of Health (DOH): Administrative Costs Used in Premium Rate Setting (Follow-Up) (2018-F-10)
An initial audit found DOH overpaid managed care organizations more than $18.9 million in mainstream Medicaid managed care premiums for the state fiscal year 2014-15 due to a flaw in the DOH’s rate-setting methodology. In a follow-up, auditors found DOH made some progress addressing the problems identified in the initial audit report but additional actions are needed.

Department of Health (DOH): Improper Medicaid Payments to Eye Care Providers (Follow-Up) (2018-F-28)
The initial audit report identified vulnerabilities in the DOH’s provider enrollment and revalidating processes that undermine DOH’s ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services rendered by providers who do not meet federal and state requirements. In a follow-up, auditors found DOH has made progress addressing the problems identified in the initial audit.

Department of Health (DOH): Medicaid Payments for Pharmacy Claims – Joia Pharmacy and a Related Prescriber (Follow-Up) (2018-F-26)
From Jan. 1, 2008 through Dec. 31, 2012, DOH paid Joia more than $7.7 million for 50,060 claims on behalf of 706 Medicaid recipients. One particular doctor was listed as the prescriber on 31,351 (63 percent) of the 50,060 claims. Auditors found that, based on a statistical projection of the audit sample results, DOH made improper payments totaling approximately $1.5 million to Joia for pharmacy claims. In a follow-up, auditors determined DOH made progress in addressing the issues. Of the report’s four audit recommendations, three were implemented and one was partially implemented.

State Education Department: Headstart of Rockland Inc. (HSOR): Compliance with the Reimbursable Cost Manual (2018-S-25)
HSOR is a not- for-profit special education provider located in Rockland County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $7,958 in ineligible costs that HSOR reported for reimbursement. .

State Education Department: Developmental Disabilities Institute Inc. (DDI): Compliance with the Reimbursable Cost Manual (2018-S-3)
DDI is a Suffolk County-based not-for-profit organization approved by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. For the three years ended Dec. 31, 2015, auditors identified $138,718 in reported costs that did not comply with state requirements

State Education Department (SED): Leake and Watts Services Inc.: Compliance with the Reimbursable Cost Manual (2017-S-73)
Leake and Watts (now known as Rising Ground) is a not-for-profit special education provider located in Westchester County. Leake and Watts provides preschool special education services to children with learning disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $228,071 in ineligible costs that Leake and Watts reported for state reimbursement.

State Education Department: Pinnacle Organization: Compliance with the Reimbursable Cost Manual (2018-S-6)
Pinnacle is a not-for-profit special education provider located in Oswego County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $103,220 in ineligible costs that Pinnacle reported for state reimbursement.

Department of State: Monitoring of Not-for-Profit Cemeteries for Fiscal Stability and Adequate Facility Maintenance (Follow Up) (2018-F-22)
An initial audit report found numerous issues with the agency’s monitoring. For example: as of Sept. 30, 2016, records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years. In a follow-up, auditors found some progress has been made to the problems identified in the initial audit. Of the four prior report recommendations, two were implemented and two were partially implemented.

Internet online anonymity didn't shield lawyer from ethical obligations

Internet online anonymity didn't shield lawyer from ethical obligations

Rochester, New York attorney Nicole Black has posted an item on her LawBlog Sui Generus summarizing a decision by the Supreme Court of Louisiana, In re: Salvadore R. Perricone, No. 2018-B-1233, in which the court considered whether Perricone violated his ethical obligations as an attorney as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting. The court concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Internet link to Ms. Black's article is:

https://nylawblog.typepad.com/suigeneris/2019/01/louisiana-court-online-anonymity-doesnt-shield-lawyers-from-ethical-obligations.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Former Savona Mayor arraigned on charges related to defrauding the Village

Former Savona Mayor arraigned on charges related to defrauding the Village

Source: Office of the State Comptroller Thomas P. DiNapoli

Former Savona Mayor Gregge Harrian was arraigned in Steuben County Court on felony charges of five counts of offering a false instrument for filing and five counts of misdemeanor falsifying business records. As Mayor, Harrian allegedly submitted fraudulent vouchers and falsified records to trick the village into paying his personal expenses.*

“Mr. Harrian allegedly abused his authority to deceive the residents he was supposed to serve,” State Comptroller Thomas P. DiNapoli said, “I thank District Attorney Brooks Baker and Sheriff James Allard for bringing Mr. Harrian to justice and for our continued partnership to fight public corruption.”

Harrian, 52, resigned his position and left the state after allegedly submitting dozens of unsupported, false, inaccurate or unfounded mileage and purchase claims, according to the audit and investigation. A second unnamed defendant was indicted for facilitating the alleged crimes. 

The indictment was the result of a joint investigation by Comptroller DiNapoli, Steuben County District Attorney Baker and Steuben County Sheriff Allard.

An earlier State Comptroller’s auditfound that Harrian also appointed his wife as clerk-treasurer under his supervision, in violation of the village employee handbook, and approved her unsubstantiated claims of off-hours work for $21,000 in extra pay.

* N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Matter of the Arbitration between the Town of Greece Guardians' Club, Local 1170 and the Town of Greece, 2018 NY Slip Op 08775, Appellate Division, Fourth Department

Supreme Court rejected the Guardians' Club, Local 1170's [Local 1170] petition to confirm an arbitration award and granted the Town of Greece's [Town] cross petition to vacate the arbitration award. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law" and confirmed the arbitration award in favor of Local 1170.

The genesis of the demand for arbitration was the Town's chief of police terminating an employee for alleged misconduct without "notice and hearing." Local 1170 filed a grievance on behalf of the employee and ultimately demanded that the matter be submitted to arbitration as provided the Collective Bargaining Agreement [CBA] between the Town and Local 1170.

The arbitrator, noting that the Collective Bargaining Agreement [CBA] between the Town and Local 1170  allowed the Town to terminate the grievant "for cause," opined that the term "for cause" was synonymous with the term "just cause," and that "just cause encompasses some degree of due process." Finding that the grievant's termination fell short of the requirements of due process,* the arbitrator concluded that the grievant "was not provided even rudimentary due process" prior to being terminated and thus the employee's termination "must be found to be without just cause."

Among the defects in failing to provide the grievant with "due process" identified by the arbitrator were the following:

1. The termination letter that the chief of police delivered to the grievant at their meeting was broadly worded and failed to provide her with notice of the charges against her.

2. The grievant was not given an opportunity to respond to the charges of alleged misconduct before the chief of police made the decision to terminate the grievant.

3. The chief of police did not conduct a full and fair investigation inasmuch as he failed to interview a key witness to the alleged misconduct, the grievant herself.

Accordingly, the arbitrator concluded that there was a failure to provide the grievant with "even rudimentary due process" and thus the grievant's "termination must be found to be without just cause" and Local 1170's grievance sustained.

In affirming the arbitrator's decision the Appellate Division noted that "It is well settled that judicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, cert dismissed 548 US 940, explaining that a ruling by an arbitrator is reviewable only pursuant to CPLR §7511(b), which states in relevant part: "The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by . . . an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

When does an arbitrator exceed his or her power under the statute? When, said the Appellate Division, "his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Kowaleski, 16 NY3d at 90 [also see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477,  leave to appeal denied 32 NY3d 908].

Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact. Indeed, notes the decision, "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be", citing Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747. Further, said the Appellate Division, courts lack the power to review the legal merits of the arbitration award, or to substitute the court's judgment for that of the arbitrator, "simply because it believes its interpretation would be the better one."

Supreme Court had vacated the arbitrator's award after it determined that "the arbitrator exceeded a limitation on his power when he determined that the grievance was arbitrable." In the words of the Appellate Division, "Even if the court is correct that the issue of arbitrability was not before the arbitrator, [the Town] conceded on appeal that the grievance was arbitrable. Thus, even assuming, arguendo, that the arbitrator exceeded a limitation on his power, we conclude that [the Town] was not prejudiced by his determination. Absent a showing of prejudice, the court lacks the authority to vacate an arbitration award where, as here, the matter is before the court on the application of a party who participated in the arbitration."**

The Appellate Division said that Supreme Court also erred insofar as it vacated the award on the ground that the arbitrator exceeded a limitation on his power by adding a substantive provision that was not included in the CBA by reason of "the absence of a stand-alone article [in the CBA] pertaining to employee discipline."  However, the "for cause" language set out in the management rights provision relied upon by Supreme Court expressly circumscribed the Town's right to discipline or discharge the grievant and the arbitrator had interpreted that language, consistent with arbitral precedent, as incorporating "a just cause standard that encompasses a right to due process."

Finally the Appellate Division indicated that it had concluded that "the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do."

* At the arbitration hearing the chief of police testified that he had made the decision to terminate the employee before meeting with the grievant. In addition, the Town conceded  that the grievant was entitled to notice and a hearing pursuant to Civil Service Law §75, and that the Town had  failed to comply with that statute. 

** The Appellate Division also explained that Supreme Court further erred in determining that the arbitration award was irrational, indicating that "An award is irrational if there is no proof whatever to justify the award". Noting that a court must confirm the award where "the arbitrator offer[ed] even a barely colorable justification for the outcome reached," in this instance the Appellate Division described the arbitration award as a thoughtful, well-reasoned opinion and award based on the hearing testimony of the chief of police and the undisputed evidence in the record, concluding that the arbitrator's award was not irrational.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08775.htm

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/