New York Public Personnel Law

On September 10, 2020, State Comptroller Thomas P. DiNapoli and Warren County District Attorney Jason Carusone announced that David Decker, former director of the Lake George Watershed Coalition,* was sentenced to 8-24 years in prison by the Warren County Court after a jury convicted him of 6 felonies, including grand larceny in the second degree, scheme to defraud in the first degree and four counts of offering a false instrument for filing in the first degree, related to his diversion of federal and state grant funds meant to improve the area surrounding Lake George.

The jury convicted Mr. Decker after hearing evidence that he was double billing two different grants for the same work, one from the Town of Queensbury and another from the U.S. Department of Agriculture, Forest Services, in the amount of $135,000. Additionally, evidence at the trial showed that Decker pocketed over $100,000 in state grant funds meant to reimburse subcontractors whom he never paid. While the victims went unpaid, bank records showed that Mr. Decker withdrew funds from the Watershed Operating account at the Saratoga Race Course, Foxwoods MGM, Harrah’s and Turning Stone casinos. The records also show that he paid his personal credit card bills as well as numerous other personal expenses and inappropriately transferred grant money to his personal investment funds.

Mr. Decker was also convicted of filing four false tax returns which failed to report income from funds diverted from the grant programs as well as a for-profit basketball league for children.

“Mr. Decker helped himself to hundreds of thousands of dollars meant to help his community,” said State Comptroller Thomas P. DiNapoli. “Thanks to my partnership with District Attorney Carusone, the Department of Taxation and Finance, and the Warren County Sherriff’s Department, Decker’s shameless exploitation of his position of trust was exposed and he has now been held accountable for his actions.”

“David Decker’s years of illegal conduct harmed local businesses, government entities and not for profit organizations,” said District Attorney Jason Carusone. “The jury’s verdict and the court’s sentence send a strong message to the defendant that his ongoing criminal activity will not be tolerated. I thank the exceptional work of assistant district attorney Ben Smith along with special assistant district attorney Christine Stevens who jointly prosecuted the case. I also wish to thank the Warren County Sheriff’s Office, the New York State Office of the State Comptroller, and the New York State Department of Taxation and Finance for their hard work through the course of a lengthy investigation and trial.”

“State grant funding is meant specifically for the betterment of local communities,” New York State Commissioner of Taxation and Finance Michael Schmidt said. “When that money is instead used for someone’s personal gain, they must be held accountable. We cannot stand by while the public trust is so blatantly violated. I commend the efforts of all partners involved in this case.”

* The Lake George Watershed Coalition is a consortium of municipalities and organizations surrounding Lake George including Warren County, the towns of Queensbury and Bolton and the village of Lake George, and was created in 2001 to preserve the beauty and health of Lake George by coordinating state and federal grant funds.

September 14, 2020

Reporting on-the-job misbehavior

A computer "application" - #NotMe - provides employers with a tool that permits employees to make timely submission of complaints of alleged supervisor or co-worker misconduct to personnel officers, human resource teams, compliance officers or designated individuals. Click on https://www.not-me.com/organizations for information concerning this program.

Workplace Harassment Webinar: Updates to the Law and Investigation Techniques

This complimentary webinar, Workplace Harassment: Updates to the Law and Investigation Techniques, is scheduled for Wednesday, September 23, 2020, 8:00 a.m. to 10:00 a.m. EST, and replaces the originally scheduled iteration of Harris Beach's in-person Labor Seminar Series. SHRM Credit is Available.

The presentation will include:

An overview of the federal and state laws prohibiting harassment in the workplace;
Recent legislative and case law developments impacting harassment claims;
Best practices in conducting workplace investigations.

Harris Beach participants:

Daniel Moore, Leader of the Labor and Employment Practice Group
Joshua Steele, Labor and Employment Practice Group
Taylor Ventre, Labor and Employment Practice Group
Lindsey Zullo, Labor and Employment Practice Group

To Register click on:

https://us02web.zoom.us/webinar/register/WN_OOQSg9BCSEOiD39PZCturA

Questions may be submitted during the registration process. The webinar will be recorded in order to be available to those registering unable to participate in person.

N.B. Harris Beach notes "This may be considered Attorney Advertising by the Rules of Professional Conduct."

September 12, 2020

Audits of New York state and local government agencies released during the week ending September 10, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending September 10, 2020. Click on the text highlighted in color to access the complete report.

State Departments and Agencies:

Department of Health (DOH): Improper Medicaid Payments for Recipients Diagnosed With Severe Malnutrition (Follow-Up) (2020-F-9) An audit issued in 2019 identified $416,237 in Medicaid overpayments on inpatient claims that contained a severe malnutrition diagnosis that the medical records did not appear to support. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report; however, additional action is needed. In particular, the Office of the Medicaid Inspector General had not taken action to review the Medicaid overpayments and make any recoveries.

Office of Mental Health (OMH): Oversight of Provider Consolidated Fiscal Reports – Independent Living Inc. (2019-S-60) OMH takes certain steps to ensure costs and other information reported by providers on their fiscal reports is accurate, documented, properly calculated and allowable. These steps include performing desk reviews that incorporate computer-assisted auditing techniques to identify areas for further review by an analyst. However, OMH generally does not perform detailed audits or field reviews of providers’ fiscal report information. There is a risk that conclusions drawn from any inaccurate data may not be as useful as they otherwise could be.

State University of New York at Stony Brook: Select Financial Management Practices at the Office of Transportation and Parking Operations (2018-S-11) Auditors identified control deficiencies over certain accounts, expenditures, and collections of revenues that jeopardize its ability to support operations. Three of the transportation and parking accounts have operated with a cash deficit balance for at least four consecutive years and $429,420 of the approximately $3.4 million in expenditures reviewed were not properly supported. Auditors also identified control deficiencies in the revenue collection process for the administration parking garage and metered parking accounts.

Metropolitan Transportation Authority - New York City Transit: Subway Wait Assessment (2019-S-62) Subway wait assessment is calculated at time points, which should consist of between 25 and 50 percent of all stops along each route. Auditors found that time points only cover between 11 and 30 percent of all stops on each route per direction. Therefore, the majority of the service provided is not captured in the wait calculation. The points did not include key subway stations such as Penn Station, 59th Street-Columbus Circle, and 14th Street.

New York City Department of Social Services: Controls Over Capital Improvements at City-Owned Homeless Shelters (2018-N-3) The Department of Homeless Services lacks the necessary controls over city-owned homeless shelter capital improvement projects to ensure urgently needed projects are properly prioritized and completed timely and within budget.

Office of Victim Services (OVS): Controls Over Selected Expenditures (Follow-Up) (2020-F-16) An audit issued in September 2018 found that OVS’ controls generally ensured that its expenditures for crime victim compensation claims, grants, and forensic rape examination (FRE) claims were made only to eligible victims and providers for eligible victim services. However, auditors identified minor discrepancies in OVS’ verification of FRE provider licenses and recommended they implement a risk-based approach to verify and validate provider licenses on submitted claims. In a follow-up, auditors found that OVS has implemented the recommendation from the initial report.

School districts:

Dryden Central School District – Cash Management (Tompkins County) District officials did not follow their investment policy. As a result, officials did not maximize interest earnings for the district. Auditors determined officials did not develop and manage a comprehensive investment program. Auditors also found officials did not seek competitive interest rates. Officials earned interest totaling $246,431 during the audit period, however, they could have earned an additional $614,606 if they used other available investment options.

Niagara Falls City School District – Out-of-District Tuition Billing (Niagara County) Tuition billings for district students enrolled in out-of-district programs were not always accurately calculated or properly supported. District officials overpaid two charter schools for 36 special education students by approximately $71,000 and may have overpaid for three students in foster care and three students in McKinney-Vento status by approximately $44,000. District officials were unable to properly monitor out-of-district tuition billings or ensure the billed amounts were accurate and proper because they did not obtain or retain adequate support documentation.

Municipal jurisdictions

County of Greene – Information Technology The county legislators did not monitor compliance with the county’s acceptable use policy, and did not adopt Information Technology (IT) policies. County legislators did not adopt a breach notification policy, a disaster recovery plan and a personal, private and sensitive information (PPSI) policy. In addition, county officials did not provide cyber security training to IT personnel and county employees. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials.

Town of Oyster Bay – Financial Condition Management (Nassau County) The board and town officials need to continue to improve their management and oversight of the town’s financial condition. Three of the town’s funds have carried repeated fund balance deficits, while two other funds have accumulated unrestricted fund balances equal to at least 45 percent of the next year’s budgets and no reserve funds were established. In addition, the town has nearly $605 million in outstanding debt, which is significantly more than neighboring towns and requires 37 percent of the revenue of the funds servicing this debt. The also board did not develop and adopt several comprehensive written plans and policies, including a multiyear financial plan, fund balance policy and reserve policy.

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.

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.