Municipal audits released by the State Comptroller during the week ending May 8, 2020

On May 8, 2020 New York State Comptroller Thomas P. DiNapoli announced the following Municipalities and school district audits have been issued.

Click on the text typed in color to access the full text of the audit.

Municipalities

Town of Brandon – Financial Condition (Franklin County) 

Inadequate budgetary practices resulted in the highway fund balance declining from $58,241 on January 1, 2017 to $5,714 as of December 31, 2019.The highway fund’s appropriations were overspent three consecutive years (2017-2019), resulting in operating deficits. Auditors determined that the board does not have a policy to maintain a reasonable level of fund balance. In addition, the board has not adopted a long-term financial or capital plan.

Chautauqua County – Court and Trust 

The records maintained by the director of finance were generally up-to-date and complete. Auditors found the director of finance established adequate procedures, maintained appropriate records and properly reported the condition of court and trust funds to the State Comptroller as required. Auditors also identified 90 actions totaling $4,405 that improperly remained in the director of finance’s custody that should have been turned over to the Office of the State Comptroller as abandoned property. Auditors also found the county clerk is not maintaining appropriate court and trust fund records.

Town of Fayette – Long-Term Planning and Information Technology (Seneca County)

The board established adequate long-term plans which appropriately addressed the town’s operational and capital needs and funding sources. Auditors determined town officials adequately safeguarded information technology assets.

Newark Valley Fire District – Board Oversight (Tioga County)
Auditors found control weaknesses in the community hall rental process. Documentation of compliance with the procurement policy was incomplete. Although monthly financial reports were accurate and reliable, the board did not perform an annual audit of the treasurer’s records for 2017 and 2018. The treasurer did not file required annual update documents with the Office of the State Comptroller.


School Districts

Brunswick Central School District – Online Banking (Rensselaer County)
The board did not adopt an online banking policy. Employees accessed nonbusiness websites although it is prohibited by district policy. In addition, district officials did not provide Information Technology (IT) security awareness training to users. Sensitive IT control weaknesses were communicated confidentially to officials.

East Islip Union Free School District – Financial Management (Suffolk County)
The district’s general fund balance increased by $12.9 million (141 percent) from 2015-16 through 2018-19, due to appropriations being overestimated by an average of $5.1 million (4.7 percent) per year. Over the last four fiscal years, the district reported unassigned fund balance equal to 4 percent of the ensuing year’s appropriations. However, when unused appropriated fund balance is added back, unassigned fund balance exceeds the statutory limit by up to 4.2 percentage points.

Fort Edward Union Free School District – Financial Condition (Washington County)
The district’s financial condition significantly declined due to a successful tax certiorari challenge. As a result, unrestricted fund balance as of June 30, 2019 totaled less than 1 percent of the next year’s appropriations. Based on the district’s outstanding tax certiorari liability of approximately $1.8 million, the district has an unfunded liability of approximately $873,000 as of July 31, 2019. District officials did not adopt a multiyear financial plan to address future unexpected revenue shortfalls or unanticipated expenditures.

Pawling Central School District – Budgeting Practices and Reserves (Dutchess and Putnam Counties)
District officials appropriated unrestricted fund balance as a financing source each year for the 2014-15 through 2018-19 budgets. Auditors found that only a fraction was used to finance operations, because the district generated operating surpluses in three of those years. After adding back the appropriated fund balance that was not used, the recalculated unrestricted fund balance for fiscal years 2014-15 through 2018-19 ranged from 7 percent to 12.15 percent of the ensuing year’s appropriations, exceeding the 4 percent statutory limit. Of the district’s six reserves, two were not used as intended and appear to be overfunded.

Shelter Island Union Free School District – Fund Balance (Suffolk County)
Surplus fund balance levels exceeded the statutory limit by at least 5.4 percentage points from fiscal years 2015-16 through 2018-19. Annual budgets overestimated appropriations by an average of $685,822 (6 percent) from 2015-16 through 2018-19. As a result, $1.7 million in appropriated fund balance was not used to fund operations during this time. In addition, the unemployment insurance reserve was overfunded and the employee benefit accrued liability reserve was not established by board resolution. Auditors also determined that district officials have not appropriately prepared or implemented corrective action plans (CAPs) to previous audits.

Rochester City School District – Budgeting and Multiyear Financial Planning (Monroe County)
The board and district officials neglected to use accurate estimates of appropriations to balance the 2018-19 budget, which contributed to an unplanned operating deficit of $27.4 million. Auditors also determined that the board failed to adopt a structurally balanced budget and did not follow its fund balance policy when it appropriated fund balance to finance the 2018-19 budget. The district lacked a comprehensive multiyear financial plan and a comprehensive multiyear financial plan.

Requirements to be met when seeking to reopen a prior decision of the Commissioner of Education

The Commissioner of Education dismissed Petitioner's appeal as untimely and outside the jurisdiction of the Commissioner.* Petitioner subsequently asked the Commissioner to reopen her appeal.

Observing that 8 NYCRR 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision, the Commissioner noted that applications to reopen a prior decision are:

1. Granted solely as a matter of discretion exercised by the Commissioner;

2. Will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made; 

3. A reopening may not be used to augment previously undeveloped factual assertions and arguments, advance new legal arguments, or reargue issues presented in a prior appeal;

4. An application to reopen must be made within 30 days of the date of the underlying decision; and

5. An application must be dismissed for improper service. 

The Commissioner explained that service of an application to reopen “shall be made in the manner set forth in section 275.8(b)” of the Commissioner’s Regulations, which provide, in relevant part, that "service ... shall be made by United States mail, by private express delivery service or by personal service; service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service." 

Although Petitioner' submitted an affidavit indicating that she had "mailed the application to her own address," Respondent's affidavit stated that it did not receive a copy of the application and Petitioner failed to present any evidence that a copy of the application to reopen had, in fact, been served on the Respondent. 

Accordingly, the Commissioner dismissed Petitioner’s application to reopen the matter.

* See Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,781.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume59/d17831

Employees found guilty of falsifying official records

The New York City Department of Environmental Protection [DEP] brought disciplinary charges against two sewage treatment workers [Workers], alleging that they neglected their duty by failing to check that a waste sludge pump was working properly and for falsifying agency records.

OATH Administrative Law Judge Noel R. Garcia found that DEP established that the Workers failed to check that the waste sludge pump was in operation, when in fact it was off during their shifts, and each Worker falsely indicated on the “Hypo Log” that the pump was working properly.

ALJ Garcia recommended a 10-day suspension for each Worker.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1415.pdf

Determining an educator's eligibility for unemployment insurance benefits between two successive academic years

Labor Law §590 (10) provides that "[a] professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment." In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, "a reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The Unemployment Insurance Appeal Board ruled that the claimant in this action [Claimant] was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment. Claimant appealed.

The employer sent Claimant, a per diem substitute teacher, a letter in June informing her that it wished to retain her to teach during the next academic school year. Claimant applied for unemployment insurance benefits between the two academic years and the Department of Labor awarded her benefits upon finding that the employer did not offer her a reasonable assurance of continued employment.

Although an Administrative Law Judge affirmed the Department of Labor's determination, the Unemployment Insurance Appeal Board [Board] reversed this decision, ruling that the employer had provided Claimant with a reasonable assurance of continued employment and thus she was not entitled to receive the unemployment insurance benefits for which she had applied. Claimant appealed the Board's decision.

The Appellate Division sustained the Board's ruling, holding that the employer had clearly expressed its interest in having Claimant return as a per diem substitute teacher for the next academic year in the June letter that it sent to her. The employer indicated that it anticipated that "there will be as much work for Occasional Per Diem Substitute Teachers" during the following school year as was available to Claimant during the current academic year and the economic terms and conditions would be substantially the same next academic year as the academic year then ending and requested that she acknowledge receipt of the letter.

The court opined that the letter, together with the testimony concerning the per diem rate of pay for the following academic year and number of potential work days available, provides substantial evidence supporting the Board's finding that the employer provided claimant with a reasonable assurance of continued employment and said it found no reason to disturb the Board's decision.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_02335.htm

Bringing employees absented due to COVID-19 concerns back to the workplace

The COVID-19 pandemic plateauing in many regions has spurred talk of re-opening the economy and bringing employees back to the workplace. Harris Beach is offering a complimentary webinar on Friday, May 8, 2020, from 9:00 - 10:00 a.m., ET, at which its labor and employment attorneys will address legal considerations for doing so safely and effectively, and field related questions submitted by participants.*

* In addition, Harris Beach will take questions in advance if submitted when you register. The webinar will also be recorded for those unable to attend live.

REGISTER HERE

Instructions for participation will be included in your confirmation email after registration.