New York State Comptroller Thomas P. DiNapoli issues audits and examinations

New York State Comptroller Thomas Dinapoli issued the following audits and reports during the week ending September 6, 2019. Click on the text in color to access the complete audits and reports.

Department of Agriculture and Markets: Oversight of Weights and Measures Programs (Follow-Up) (2019-F-11)

An initial report, issued in December 2017, identified systemic issues with the quality of the data the department relies on to administer the state’s weights and measures program. In a follow-up, auditors found the department made significant progress addressing the problems identified in the initial audit. Of the four prior audit recommendations, two were implemented and two were partially implemented.

Department of Environmental Conservation (DEC): Oversight of Waste Tire Site Cleanup and Use of Waste Tire Fees (2018-S-43)

Auditors found DEC has made significant progress abating identified waste tire sites. Nearly 44 million tires (99 percent) were abated at 160 sites (86 percent) as of October 2018. Auditors also found about $5.1 million in expenses charged to the program that did not appear to be related to waste tire abatement or other waste management activities allowable under the law. 

Department of Environmental Conservation: Report of Title V Operating Permit Program Revenues, Expenditures, and Changes in Fund Balance for the Eight Fiscal Years Ended March 31, 2017 (2017-S-81)

Program revenues were insufficient to cover program expenses, as required by the federal Clean Air Act and New York’s Clean Air Compliance Act. Program revenues decreased 38.8 percent during the period, while program expenses decreased 10.8 percent, resulting in a trend of increasing annual deficits. 

Department of Health (DOH): Inappropriate Payments Related to Procedure Modifiers (Follow-Up) (2019-F-10)

An initial audit issued in April 2018 found that DOH incorrectly implemented claims processing system controls to prevent inappropriate payments for evaluation and management services, which resulted in Medicaid overpayments totaling about $2.6 million. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial report, but no action has been taken to review and recover the inappropriate payments identified.

Department of Health (DOH): Medicaid Claims Processing Activity April 1, 2018 through Sept. 30, 2018 (2018-S-13)

Auditors identified over $134 million in Medicaid payments that require DOH’s prompt attention, including $123.9 million in Medicaid managed care premiums paid on behalf of 86,475 Medicaid recipients who had concurrent comprehensive third-party health insurance.

Metropolitan Transportation Authority (MTA): New York City Transit: Maintenance and Inspection of Event Recorder Units (2018-S-19) Auditors found train car inspections were not always done on time. They determined that, of the 822 timed inspections during the audit period, 70 were late, exceeding the permitted time or mileage interval. For 129 inspections, maintenance personnel did not provide evidence that they downloaded information from event recorder units to ensure that they were functioning correctly, as required by the MTA’s transit unit’s work manuals.

Office for People With Developmental Disabilities (OPWDD): Accountability and Surplussing of Vehicles (2018-S-42)

OPWDD lacks sufficient controls over fleet vehicle management at the four local Developmental Disabilties Services Offices (DDSOs) to ensure that all vehicles are properly accounted for, that vehicles are used for official state business only, and that DDSOs are properly surplussing vehicles following a process that is fair and complies with OGS requirements. Such deficiencies, which might largely be attributable to OPWDD’s lack of procedures and guidance, create an environment at risk of mismanagement and impropriety.

Rochester-Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (2019-S-6)

The authority must adhere to the State Information Security Policy which defines the minimum information security requirements that all state entities must follow to secure and protect the confidentiality, integrity, and availability of information. Auditors found that, generally, RGRTA maintained its systems at vendor-supported levels. However, they did identify unsupported systems used by RGRTA on 14 devices.

State Education Department (SED): Children’s Unit for Treatment and Evaluation: Compliance with the Reimbursable Cost Manual (2018-S-47)

For the three fiscal years ended June 30, 2016, auditors identified $232,606 in reported costs that did not comply with SED’s requirements for reimbursement. These costs included $232,464 in parent agency administrative costs and $142 in consultant travel expenses.

State Education Department (SED): Early Childhood Learning Center of Greene County: Compliance With the Reimbursable Cost Manual (2018-S-67)

For the fiscal year ended June 30, 2015, auditors identified $12,843 in reported non-personal service costs that did not comply with SED’s requirements for reimbursement.

The State Comptroller also provides the following information concerning how taxpayer money is spent at Open Book New York. Track municipal spending, the state's 160,000 contracts, billions in state payments and public authority data.

Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

Recent appointments to Governor Andrew M. Cuomo's administration

On September 4, 2019 the Governor announced these appointments to his administration:

Matthew Saal has been appointed Senior Advisor for Communications. Mr. Saal is a two-time Emmy Award-winning producer who has extensive experience producing television and digital programming. Previously, Mr. Saal worked for four years as Creator and Executive Producer at Bloomberg LP where he produced "The David Rubenstein Show: Peer to Peer Conversations," which featured behind the headlines interviews with top newsmakers including Warren Buffett and Bill Gates. Prior to that, he served for seven years as Creator and Executive Producer at MSNBC where he created and executive produced primetime live television shows including "The Rachel Maddow Show," "Politics Nation" and "Verdict with Dan Abrams." He has also served as Senior Broadcast Producer at NBC News on "Weekend Nightly News with Lester Holt." Mr. Saal earned a B.A. from Harvard College.

Colleen Curtis has been appointed Senior Director of Digital Strategy and Social Media. Ms. Curtis brings a wealth of media, communications and marketing experience in the media, government and entertainment industries. More recently, she served as Senior Vice President for Consumer, Social and Digital Publicity at Starz Entertainment and the Director of Digital Content at the Executive Office of the President under President Obama where she managed oversight and content for multiple online platforms. Ms. Curtis previously served as Editorial Director of Womens & Lifestyle Programming at AOL, where she launched 15 websites that reached more than 20 million Americans each month. In addition, Curtis has held numerous leadership roles in media in the United States and overseas, including senior editorial positions at ABC's Good Morning America, the New York Daily News, and the National Post. Ms. Curtis studied journalism at Boston University's College of Communications and Columbia University's Graduate School of Journalism.

Jeremy M. Goldberg has been appointed Deputy Secretary for Technology and Innovation for the State of New York. With over 15 years experience working across sectors, Jeremy has served in a technology leadership, strategy, and partnerships role in three mayoral offices: New York, San Francisco, and San Jose. Most recently, Jeremy served as Deputy CTO and Managing Director of NYCx in the New York City Mayor's Office of the Chief Technology Officer (MOCTO). He led the successful creation of an award-winning portfolio of initiatives that focuses on bold ideas and breakthroughs in the way we interact with and influence emerging technologies for the public good. During his time in San Francisco, he served as Director of Civic Innovation Partnerships in the Mayor's Office of Civic Innovation, where he led the growth of Startup-in-Residence, a 16-week program that connects government departments with startups to address critical needs via innovative products and services, and Civic Bridge, public private partnership program that enlists pro-bono private sector volunteers to work on critical city issues alongside city staff. Prior to that, he served as Deputy Chief of Staff for Civic Innovation in San Jose, California. A Fuse Corps Alumnus, Aspen Ideas Festival Scholar, and University of Texas Archer Fellow Alumnus, Jeremy earned a B.A. in Government from the University of Texas at Austin and an M.A. in Public Affairs from the University of San Francisco. He and his family live in Brooklyn, NY.

 
Edgar Santana has been appointed Director of Downstate Regional Affairs. Mr. Santana previously served as Director of Political and Governmental Affairs for the Laborers Eastern Region Organizing Fund. He previously worked as the Construction Marketing Representative for the Eastern Region Laborers-Employers Cooperation and Education Trust. Earlier in his career, Mr. Santana was the Deputy Executive Director for the New York State Democratic Committee and the Northeast Political Director for Hillary Clinton for President. Mr. Santana also formerly served as a Trustee for the Yonkers Board of Education and is Co-Chair of the Westchester County Census 2020 Complete Count Committee. He received a Bachelor's degree in Business Administration, an MBA from Fordham University, and a Master of Science Management Degree in Public Administration from Wilmington University, Wilson Graduate Center.

Brandon Hicks has been appointed Director of African American Affairs. Mr. Hicks brings nearly a decade of organizing and management experience for national civil rights and community organizations. Most recently, he served as the National Organizer for the National Action Network where he developed a national campaign to advance special prosecutor legislation and organized diverse campaigns surrounding police brutality, marijuana legalization and criminal justice reform. Mr. Hicks holds a Bachelor's degree in Political Science from North Carolina Central University and his Juris Doctor from Washington and Lee University School of Law.

 
Maria LoGiudice has been appointed Assistant Deputy Secretary for Public Safety. Ms. LoGiudice brings 20 years of experience in New York State government focusing on public safety and financial analysis. She previously served as the Managing Director of Budget and Fiscal Studies for the New York State Senate Finance Committee focusing on financial analysis surrounding public protection, including corrections, criminal justice services, homeland security and emergency services, State Police, victim services and local government issues. Ms. LoGiudice received a Bachelor's degree of Science and a Master's degree of Science in Criminal Justice Administration from Niagara University.

Molly Reilly has been appointed Assistant Secretary for Upstate Intergovernmental Affairs. Ms. Reilly most recently served as the Mayor of Sackets Harbor for two years. She also served as a professional educator, during which time Governor Cuomo selected her as an Empire State Excellence in Teaching Awardee. She received her Bachelor's degree in Political Science from Le Moyne College and a Master's degree in Political Science with a Concentration in Political Theory from the Nelson A. Rockefeller College of Public Affairs And Policy at SUNY Albany. 

Distinguishing between a "mandatory referendum" and an "advisory referendum" when seeking voter approval of a proposed local law

The Council of the City of Rochester (Council) adopted Local Law No. 4 of 2019  [Local Law] to amend the City Charter. The Local Law provided the holding of a referendum for the November 2019 general election that, if adopted, would:

1. Remove the Board of Education of the Rochester City School District [Board] Commissioners from a list of "Elective officers";

2. Remove the members of the Boards' term of office from City Charter; and

3. Discontinue providing for the "Salaries of School Board members."

The referendum further provided that the Local Law would take effect only after both approval by [a] an affirmative vote of "a majority of qualified electors" voting on the referendum and [b] the enactment of appropriate enabling amendments to the Education Law.

The Board initiated a CPLR Article 78 proceeding and declaratory judgment action seeking a declaration that the Local Law was invalid and that the referendum would be void as constituting an "advisory referendum." The Board also asked the court to issue a permanent injunction barring the City from placing the referendum on the November ballot.

Supreme Court granted the relief sought by the Board, holding that the State "unequivocally occupies the entire field of public education, thus preempting the Local Law and rendering the referendum impermissibly advisory." Declaring that the Local Law was a "void advisory referendum," the court issued a permanent injunction barring the advisory referendum from being included on the ballot for the November general election.

The City appealed the Supreme Court's ruling but the Appellate Division affirmed the lower court's decision. Citing Mills v Sweeney, 219 NY 213, decided in 1916, the Appellate Division explained that any local law that "[a]bolishes an elective office" or "reduces the salary of an elective officer during his [or her] term of office" is subject to the approval of a mandatory referendum.*

In contrast, said the court, an "advisory referendum," that is a referendum that lacks legal effect or consequence, is not permitted in the absence of express constitutional or statutory authority providing for such a referendum.

As the Local Law conditioned its effectiveness on subsequent action by the New York State Legislature, the Appellate Division said that this stipulation "strips the referendum of any binding legal effect" and thus is "impermissibly advisory."

In addition, the Appellate Division observed that Supreme Court "correctly noted" that a local government may not legislate in areas "where the State has evidenced its intent to occupy the field" and it is well established that the State has preempted local action in the field of public education.** 

The Appellate Division then unanimously affirmed the Supreme Court's judgment, without costs.

* See Municipal Home Rule Law §23[2][e].

** See New York State Constitution Articles IX §3[a][1] and Article XI, §1; Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06449.htm

Recent Decisions issued by Administrative Law Judges of the New York City Office of Administrative Trials and Hearings

Below are summaries of recent OATH Administrative Law Judge's decisions.  To ascertain whether the ALJs' recommendations were adopted by the appointing authority please call OATH's calendar unit at 1-844-628-4692.

Worker alleged to be under the influence of drugs while on duty

OATH Index No. 1530/19

A worker, who was found unconscious at work, was charged with possessing and being under the influence of drugs while on duty and being absent without leave. Administrative Law Judge Ingrid M. Addison sustained the charges that the employee was under the influence of drugs while on duty but dismissed the absence charge.

Termination of the worker’s employment was recommended by the appointing authority, but because the employee’s problems appeared to have started following a line of duty injury, Judge Addison suggested that the appointing authority consider placing the individual on a leave of absence to allow him to return when fully rehabilitated.

The appointing authority adopted Judge Addison's findings and recommendation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1530.pdf

Special officer alleged to have used excessive force against a client

OATH Index No. 2742/18

A special officer [SO] was charged with using excessive force against a client at a New York City job center. The charges filed against the officer alleged that he kicked the client hard in the face and pulled the client’s arm when the client was already held in a prone position on the floor by several other officers. SO denied the charges filed against him.

In the course of a four-day trial, the appointing authority offered seven witnesses and SO offered three. ALJ Noel R. Garcia credited the appointing authority’s witnesses, found that SO guilty of serious misconduct, and recommended termination of his employment. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2742.pdf

Employee charge with targeting a co-worker with inappropriate, aggressive and threatening language 

OATH Index No. 1863/19

An employee was charged with twice accosting a fellow employee and addressing  inappropriate, aggressive and threatening language to the co-worker.

During trial the appointing authority presented the testimony of four employees. Testifying on her own behalf, the charged employee denied having used any inappropriate or aggressive language.

ALJ Addison found the appointing authority’s witnesses credible and sustained the charges. Considering the charged employee’s long service with the agency,  Judge Addison recommended a penalty of 40 days’ suspension without pay, "with credit for time served."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1863.pdf

Motion seeking the recusal of the Supreme Court Justice presiding over a CPLR Article 75 action

Petitioner [Employer] commenced this proceeding in Supreme Court pursuant to CPLR Article 75 to vacate an arbitration award that concluded that Employer had improperly terminated the employment of member of the negotiating unit represented by the employee organization [Union]. 

Supreme Court granted the Employer's petition and vacated the arbitration award. The Union and the terminated employee  then asked [1] the Supreme Court Justice who had presided over this Article 75 action to recuse herself; and [2] an order to vacate the order and judgment earlier issued by her. The Justice denied the motion. 

Mandatory disqualification of a Supreme Court Justice pursuant to Judiciary Law §14 is required where the trial judge presiding over any claim is "related by consanguinity or affinity to any party to the controversy within the sixth degree."* 

The Appellate Division explained that the record did not show that any person related to the challenged Supreme Court Justice was a party to Article 75 proceeding and thus mandatory disqualification pursuant to Judiciary Law §14 was not required

Turning to the Code of Judicial Conduct Canon, 3(E)(1)(d)(i), which concerns a judge recusing himself or herself as a matter of the exercise of his or her discretion, the Appellate Division said that this provision addresses a judge decision to decline "self-disqualification" or reject a motion to do so.

As to the question of discretionary recusal, the Appellate Division again agreed with the Supreme Court Justice's denial of the motion seeking her recusal based on alleged impropriety or bias. The Appellate Division's decision notes that in the absence of a legal disqualification under Judiciary Law §14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and the personal conscience of the court." 

Such recusal, opined the Appellate Division, as a matter of due process, "is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist." 

Accordingly, said the court, the denial of a recusal motion will constitute an improvident exercise of discretion only where the moving party puts forth demonstrable proof of the judge's bias or prejudgment and here there was no evidence in the record demonstrating that  the Supreme Court Justice had any improper interest in the outcome of the Article 75 proceeding or harbored actual bias against the Union or its member so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion.

* "First cousins twice removed" constitute the sixth degree of consanguinity.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06391.htm

[See, also, http://www.nycourts.gov/reporter/3dseries/2019/2019_06402.htm]