New York State State Comptroller Thomas P. DiNapoli reports that low inflation rate impacts property tax levies for counties, towns and cities

Property tax levy growth for local governments with fiscal years closing Dec. 31 will be capped at 1.56 percent for 2021, according to State Comptroller Thomas P. DiNapoli. This figure affects tax cap calculations for all counties, towns, fire districts, 44 cities and 11 villages.*

“The pandemic and the fiscal uncertainties municipalities are facing add to the challenge of adhering to the tax cap,” DiNapoli said. “At the same time the levy growth rate is dropping, both revenues and spending could deviate significantly from what was planned. Local governments must closely monitor their budgets to ensure they are balanced and that they have cash on hand.”

The tax cap, which first applied to local governments and school districts in 2012, limits annual tax levy increases to the lesser of the rate of inflation or 2 percent with certain exceptions, including a provision that allows municipalities to override it. The cap is just one of many fiscal pressures facing local governments during the COVID-19 pandemic.

The 1.56 percent allowable levy growth factor for the 2021 fiscal year is the first time municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent in three years. Levy growth was capped at 2 percent for these municipalities due to inflation above 2 percent in recent years.

* Click on text in colorfor access to:

Chart

List of Tax Levy Growth Factors  

Report

Under Pressure: Local Government Revenue Challenges During the COVID-19 Pandemic

Guidance for reopening schools in New York State

On July 13, 2020, Governor Andrew M. Cuomo announced new, data-driven guidance for reopening schools in New York State allowing schools in New York State Regions in Phase IV to reopen if the daily infection rate remains below 5% using a 14-day average. However, schools will close if Regional Infection Rate rises over 9% after August 1, 2020.

The finalized Department of Health and the Reimagine Education Advisory Council guidance and guiding principles are posted on the Internet at:  

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Pre-K_to_Grade_12_Schools_MasterGuidence.pdf.*

Among the topics addressed in the State's guidance materials are the following:

Aftercare and Extracurricular activities

Cleaning and Disinfecting

Cohort Structures

Food Service

Masks and Personal Protection Equipment [PPE]

Restructuring Space to Maximize In-Class Instruction

Screening

Social Distancing

Tracing

Transportation

* N.B - The New York State School Board Association notes that "the State Education Department said that Plexiglas® and similar plastic glazing materials called plexiglass are flammable and do not meet fire code or SED regulations. For more information, visit the Office of Facilities Planning website."

New York State's Commissioner of Education does not issue advisory opinions

In Decisions of the Commissioner of Education, Decision No. 17,827, Interim Commissioner of Education Shannon Tahoe dismissed an appeal filed pursuant to Education Law §310 seeking the removal of a member of a school board [Board Member] on the grounds that the Petitioner sought an advisory opinion.

In the words of Commissioner Tahoe:

"The appeal must be dismissed as seeking an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.* While [Petitioner] complains of prior statements and affiliations of [Board Member], she does not seek any relief against [Board Member] – for example, [Board Member's] removal from office (see Education Law §306).

"Instead, [Petitioner] merely seeks an advisory opinion that school board members may not, consistent with their duties and responsibilities, directly or indirectly support abstention from [State Education Department] SED assessments.  There are no specific allegations that [Board Member] engaged in inappropriate conduct while serving as a board member.

"Thus, [Petitioner’s] query is advisory in nature and cannot be the subject of an appeal brought pursuant to Education Law §310."

Addressing a procedural defect in Petitioner's appeal, Commissioner Tahoe noted that:

"... to the extent [Petitioner] asserts claims against [Board Member] under Education Law §306 or §310, she has failed to join [Board Member] as a respondent in this proceeding.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. 

"Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.  [Petitioner] did not name [Board Member] in the caption of the appeal or serve [Board Member] with a copy of the petition."

* Below are selected New York departments and agencies and political subdivisions of the State posting advisory opinions or other personnel related information on the Internet:

Opinions of the Attorney General [Formal and Informal] are posted at https://ag.ny.gov/appeals-opinions/introduction-opinions

Opinions of the State Comptroller are posted at https://www.osc.state.ny.us/legal-opinions

Open Meetings Law [OML] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/oml_listing/oa.html

Freedom of Information Law [FOIL] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/foil_listing/findex.html

Advisory Opinions of the NYS Department of Taxation and Finance are posted at https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Counsel Opinion Letters, New York State Department of Labor are posted at   https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Information issued by the Office of Counsel and other arms of the Public Employment Relations Board [PERB] is posted at https://perb.ny.gov/office-of-counsel/

New York City Civil Service Commission -- a list of the types of appeals considered by the Commission is posted at https://www1.nyc.gov/site/csc/appeals/other-types-appeals/other-types.page

See, also, https://research.lib.buffalo.edu/ny-admin-law/opinions-by-subject for additional such resources.

Commissioner Tahoe's decision in Petitioner's appeal is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume59/d17827

Municipal audits released by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued during the week ending July 10, 2020.

Click on the text highlighted in color for the full report.

Village of Maybrook – Financial Condition (Orange County)

The board did not adequately manage the village’s financial condition. Auditors determined the board used unrealistic revenue estimates during the budget process. The village’s overall fund balance decreased by $642,000 (63 percent) from 2014-15 to 2018-19. The general and sewer funds had operating deficits during the past five years, and the water fund had an operating deficit in 2019. In addition, village officials did not develop a fund balance policy, multiyear financial plan or capital plan.

Monsey Fire District – Board Oversight (Rockland County)

The board provided inadequate and ineffective oversight of the district’s operations and did not comply with General Municipal Law’s financial filing and

audit requirements. In addition, for seven consecutive years, an annual update document, which is a required annual financial report, was not properly filed. The required annual independent audit of the district’s financial records was not performed since 2012, and the length of service awards program that started in 1990 was never audited.

Village of Sackets Harbor – Budgeting and Financial Management (Jefferson County)

The board and village officials did not develop realistic budgets. From 2016-17 through 2018-19, budgeted appropriations in the general, water and sewer funds exceeded actual expenditures by a total of $4.9 million (a 39 percent budget variance). In addition, officials also appropriated $3.6 million of fund balance during this period that was not needed to fund operations. The board has not adopted a fund balance policy or multiyear financial and capital plans.

Claiming collateral estoppel in an effort to influence the decision by another tribunal involving the same issues and the same parties

An employee, while suspended from his position, was accused of certain misconduct and discharged from his employment. The individual [Claimant] had filed for unemployment insurance benefits and had contested his termination by seeking arbitration pursuant to the collective bargaining agreement.

Prior to the decision being issued by the arbitrator, an unemployment insurance hearing was held and the Administrative Law Judge [ALJ] denied a joint request by the parties to adjourn the matter until the arbitrator's award was promulgated.

Following the conclusion of the unemployment insurance hearing, but prior to the ALJ issuing a decision, the arbitrator issued an arbitration award finding that Claimant had engaged in misconduct warranting his termination from his position. The employer mailed a copy of the arbitrator's decision to the ALJ and asked that the ALJ take judicial notice* of it.

The ALJ issued a decision a few days later in which there was no mention of the arbitrator's decision and found that there was no evidence establishing that Claimant engaged in the alleged misconduct. The ALJ ruled that Claimant was entitled to receive unemployment insurance benefits.

The employer appealed ALJ's decision to the Unemployment Insurance Appeal Board [Board] contending that the ALJ's decision was contrary to the arbitrator's decision, which it maintained was final and binding.

The Board found, among other things, that the ALJ did not abuse her discretion in denying an adjournment and affirmed the ALJ's determination. The employer appealed the Board's decision and the Appellate Division reversed the Board's ruling.

Citing Matter of Tucek [Big V Supermarkets-Commissioner of Labor], 277 AD2d 628, the Court noted that while "the Board is not bound by arbitration decisions regarding [a] claimant's discharge issued subsequent to the time the Board rendered its decision" the Board was informed of the arbitration decision prior to its decision. Thus, explained the Appellate Division, "the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing."

Further, opined the court, the fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as "the final factfinder in the administrative process is the Board, not the ALJ."

Finding that the Board had indicated that the arbitrator's decision was not part of the record before it notwithstanding its being an element in employer's appeal and a copy of it was annexed to the employer's administrative appeal to the Board, Appellate Division remanded the matter to the Board to permit the employer to place the arbitration decision into the record and to provide an opportunity for Claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing.

* A procedure used by a court to accept a fact presented as evidence as true without a formal presentation such submitting public and court records, the tables of the times of sunset and sunrise and similar documents.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_03705.htm