Audits and reports released by the New York State Comptroller during the week ending April 23, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 23, 2021.

Click on the text highlighted in color to access the complete report.

State and New York City Departments and Agencies

Department of Health (DOH): Patient Safety Center Activities and Handling of Revenues (2019-S-15) 

DOH has generally met the primary objectives of the Patient Safety Center (PSC) regarding data reporting, collection, and analysis and the dissemination of health care information, including public access to such information. However, auditors found a lack of formal guidance governing certain enforcement and recordkeeping practices. DOH also needs to improve its oversight of PSC revenues and related activities to ensure that the PSC account is receiving all revenue due.

 

Department of Labor (DOL) : Selected Wage Investigation Procedures (2019-S-6) 

Auditors reviewed wage investigation activities for a sample of 150 cases opened between April 1, 2016 and November 29, 2019). For 69 of the 150 cases, investigators did not make contact with the employer within 60 days of creating a wage investigation case, as recommended in its procedures. In 55 of the 69 cases, the first contact did not occur for more than 120 days, including 13 cases for which contact didn’t occur until after more than 360 days had passed. Auditors identified 24 cases with no documented investigation activities for significant periods of time, including two cases with gaps of more than two years. For nine of 56 cases reviewed that DOL’s system indicated were closed and paid, auditors could not determine whether the 976 claimants in these cases received recovered wages totaling $413,582.

 

New York City Department of Education (DOE): Health, Safety, and Accessibility in District 75 Schools (2019-N-7) 

DOE could improve its oversight to ensure that children attending some District 75 schools are not exposed to unsafe and unhealthy conditions. Conditions identified included: peeling paint in certain areas, including classrooms; lack of the required supply of epinephrine pens to be used in case of allergic reaction emergencies: disabled door alarms; unsafe conditions on playgrounds; and potentially toxic cleaning materials in unlocked cabinets in classrooms and hallways.

 

New York City Department of Finance (DOF): Selected Aspects of Collecting Outstanding Amounts Due for Parking Violations (2019-N-2)

Auditors determined that DOF did not maximize collection of fines and fees owed for parking violations, especially for vehicle owners residing outside NYC. The city has large outstanding balances due from summonses for parking violations, and DOF has not always taken timely action to collect the fines and fees.

 

Metropolitan Transportation Authority Capital Construction: All-Agency Contract Evaluation System (2019-S-14) 

MTA Capital Construction did not always follow proper procedures when monitoring and evaluating contractor and consultant performance to uniformly obtain and record reliable information on performance. As a result, it did not fully benefit from the established processes. Documentation was not consistently maintained to support projects rated as satisfactory, and, in some cases, either the work performed or the information in the file did not appear to support or contradicted the ratings.

 

Office for People With Developmental Disabilities (OPWDD): Compliance With Jonathan’s Law (Follow-Up) (2020-F-26) 

An audit issued in November 2019 found OPWDD did not implement processes to effectively monitor whether facilities are complying with Jonathan’s Law, enacted to expand parents’, guardians’, and other qualified persons’ access to records relating to incidents involving family members residing in facilities operated, licensed, or certified by OPWDD and other state agencies. While facilities established practices for notifying qualified persons within the required time frame, 11 percent of the incidents reviewed lacked support that the requisite notification was made within the required time frames and 7 percent lacked support that a report had been issued within the required time frames. Facilities did not always provide records to qualified persons when requested or did not provide them within 21 days of the request or the conclusion of an investigation. In a follow-up, auditors found OPWDD officials made limited progress in addressing the problems identified in the initial audit report.

 

MUNICIPAL AUDITS

Town of Orange – Former Highway Superintendent’s Records (Schuyler County)  

Auditors found the former superintendent intentionally destroyed highway records. Auditors determined the former superintendent submitted five inaccurate claims to the New York State Consolidated Local Street and Highway Improvement Program that resulted in the town receiving $86,000 more than it was entitled to. Based on the audit and investigation, the former superintendent was arrested and charged with second degree obstructing governmental administration for destroying town records. In December 2020, the superintendent pled guilty to attempted obstruction of governmental administration and was sentenced to a conditional discharge and given a $500 fine.

 

Plattekill Public Library – Procurement and Investment of Funds (Ulster County)  

The board did not always comply with its procurement and investment policies, or with statutory requirements relating to investments. The board did not ensure required quotes were obtained for the purchase of security cameras. The board also did not adopt a procurement policy that included professional services. As a result, officials did not seek competition for six professional service providers receiving payments totaling $24,009. In addition, the board did not adhere to its investment policy by limiting the investment decisions to the library’s committee and by ensuring funds were properly invested.

 

Village of Suffern – Budget Review (Rockland County)  

Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. However, auditors estimated the total 2021-22 collections for sewer rent revenue will be approximately $2.25 million, which is $572,000 less than budgeted. The village’s tentative budget includes a tax levy of $12,238,192, which is $40,928 above the limit established by law.

Town of Tully – Justice Court Operations (Onondaga County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the clerks did not ensure that some missing or deleted cashbook entries had a proper audit trail and documentation. In addition, the town board did not perform an annual audit of the justices’ records, as required.

 

SCHOOL DISTRICT AUDITS

Phelps-Clifton Springs Central School District – Fuel Purchasing (Seneca County and Wayne County)  

During the 30-month audit period, auditors found the district could have reduced its fuel expenditures by at least $124,428. The savings would have covered the district’s average gasoline and diesel fuel purchases for almost 11 months. Auditors determined the district could have saved at least $49,448 by using the Office of General Services contract price. In addition, officials should not have paid $74,980 to a local gas station. The erroneous payments comprised $57,415 in taxes and $17,565 in finance charges and other fees.

OTHER REPORTS

LOCAL SALES TAX COLLECTIONS

Despite decline compared to 2020, collections show improvement over the past three quarters.

Sales tax revenue for local governments in New York State declined by 3.9 percentin the first quarter compared to the same period last year, according to State Comptroller Thomas P. DiNapoli. Sales tax collections from January through March totaled $4.3 billion, which was $173 million less than the first quarter of 2020.

“Although collections remain down compared to last year, there are signs of improvement as the state continues to recover from the economic devastation caused by the COVID-19 pandemic,” DiNapoli said. “Local officials are cautioned to monitor their budgets closely because the pandemic’s trajectory and its effect on our state’s fiscal recovery remain uncertain.”

This is the fourth quarter in a row that overall collections have dropped statewide year-over-year. From April 2020 through March 2021, statewide local collections are down by 11.8 percent or $2.2 billion.

Despite the first-quarter decline, collections have shown a gradual improvement over the past three quarters, especially compared with the 27.1 percent decline seen from April to June 2020, when many businesses were shut down during the first wave of the COVID-19 pandemic and many people stayed home to avoid infection.

Collections for the first quarter of 2021 increased compared to the first quarter of 2020 in every region outside of New York City, with increases ranging from 2.4 percent in the Southern Tier to 9.8 percent in the North Country. Four regions – the Capital District, Central New York, Long Island and the North Country – experienced stronger growth than they did in the first quarter of last year, which predated the pandemic.

Sales tax collections in New York City during the first three months of 2021 were down 13.2 percent from the same period in 2020, which was still better than the previous three quarters.

Outside of New York City, all but two counties – Albany and Schuyler – experienced an increase in collections in the first quarter of 2021 compared the same three-month period in 2020. 

Table

Monthly and Quarterly Local Sales Tax Collections by Region

Report

First Quarter 2021 Local Sales Taxes Down 3.9 Percent; New York City’s Declines Soften While the Rest of the State Sees Growth

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Alert from GOVTECH TODAY dated April 23, 2021

GOVTECH TODAY advises governments to take note that "Bad Internet Bots Are On The Rise." 

A web robot, robot or simply bot, is a software application that runs automated tasks [scripts] over the Internet. GOVTECH TODAY reports that new data from Imperva, an IT security company, suggests government websites may be at higher risk of being targeted by “bad bots” as the COVID-19 pandemic continues. Experts, however, say "there’s plenty agencies can do to be prepared." READ MORE here.

Registration Coordinator Lauren Fahndrich stated: 

"As shown by recent breaches, hackers are increasingly launching more sophisticated and targeted attacks that are becoming more difficult to detect.

"To combat these threats, it’s critical for state and local governments to add some new tools to their cybersecurity toolkits. Watch now to learn more about the evolving cybersecurity landscape and how cyber threat intelligence, an incident response retainer and other tactics can help you defend against and respond to the next big attack.

"This complimentary, one hour webinar is available on-demand, and you are welcome to share this invitation with any colleagues that may benefit from the information!"

For additional information, contact:

Lauren Fahndrich
Registration Coordinator
Government Technology | A division of e.Republic
https://webinars.govtech.com/
800-940-6039 ext. 1378
lfahndrich@govtech.com

Failure to fully comply with the relevant rules and regulations may prove fatal to filing a viable administrative appeal of an adverse administrative decision

The Workers' Compensation Board declined to review of a decision by a Workers' Compensation Law Judge on the grounds that the self-insured employer [Employer] failed to comply with the controlling provisions of its rules and regulations.

A correction officer [Claimant] assaulted by an inmate filed a claim for workers' compensation benefits for an injury to his jaw and for "post-concussive syndrome and photophobia." A Workers' Compensation Law Judge [WCLJ) amended the claim to include an injury to the Claimant's head and found, among other things, that Claimant "is totally industrially disabled based upon his work-related injuries and legal blindness."

The Employer filed an application for review of the WCLJ's determination by the Workers' Compensation Board, challenging, among other things, the WCLJ's finding that [Claimant was] totally industrially disabled. The Board denied the application for Board review of the WCLJ's ruling because of Employer did not answer a question on the application form it had submitted seeking such review. Employer next appealed the Board's rejection of its application for review.

The Appellate Division affirm the Board's decision, noting that it had "consistently recognized that 'the Board may adopt reasonable rules consistent with and supplemental to the provisions of the Workers' Compensation Law, and the Chair of the Board may make reasonable regulations consistent with the provisions thereof.'"

The court explained that the regulations require, in relevant part, that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [and] . . . must be filled out completely",* noting that "[w]here, as here, a party who is represented by counsel fails to comply with the formatting, completion and service submission requirements set forth by the Board, the Board may, in its discretion, deny an application for review."

Further, opined the court, Employer's reliance on "its responses to other questions on the application for Board review does not cure the defective response to question number 15," the specific question which the Board found was not answered.

* See 12 NYCRR 300.13[b]

Click HERE to access the full text of the Appellate Division's decision.

 

Elements to be considered in evaluating justifications advanced for rejecting a Freedom of Information Law request filed with a governmental entity subject it provisions

In reviewing an appeal from a Supreme Court decision which denied the petition filed by Plaintiff seeking to compel the New York City Dept. of Investigation [Investigations] to disclose its entire case file and all documents related to a certain investigation under color of the Freedom of Information Law [FOIL],* the Appellate Division vacated the Supreme Court's ruling, in part, and remanded the matter for further proceedings as to the remaining records responsive to the FOIL request before a different Justice, and otherwise affirmed the Supreme Court's ruling, without costs.

In particular, the Appellate Division found:

1. Investigations failed to meet its burden of establishing that "disclosure of any records responsive to Petitioner's FOIL request would 'interfere with law enforcement investigations or judicial proceedings', which exemption 'ceases to apply after enforcement investigations and any ensuing judicial proceedings have run their course.';

2. " Investigations failed to establish that disclosure would 'identify a confidential source or disclose confidential information relating to a criminal investigation ... [and] in the absence of any evidence that [any] person received an express or implied promise of confidentiality'; and

3. Investigations' assertion that "disclosure would reveal nonroutine criminal investigative techniques or procedures is conclusory."

As to certain email messages offered by Plaintiff in support of its Article 78 petition, the Appellate Division, citing Matter of Gould, 89 NY2d at 277, opined that they "are covered by the inter-agency or intra-agency materials exemption " of Public Officers Law §87[2][g] as they amount to "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making".

However, said the Appellate Division, "the applicability of this exemption to any other responsive records cannot be determined on this record in the absence of in camera review.  

The court than remanded the matter to Supreme Court for a de novo determination, after an in camera inspection, of the applicability of the inter-agency or intra-agency materials exemption and any other exemptions properly raised by Investigations.

* Public Officers Law §§84-90

Click HERE to access the full text of the Appellate Division's decision. 

 

Employee absent on workers' compensation leave served with disciplinary charges alleging he was able to perform the essential functions of his job while on such leave

A school district [Employer] adopted the finding a §75 disciplinary action hearing officer holding that the employee [Plaintiff] was guilty of certain charges of misconduct and the hearing officer's recommendation that the Petitioner be terminated from his position. Petitioner appealed the Employer's decision but the Appellate Division sustained the Employer's action and dismissed Plaintiff's Article 78 petition on the merits, with costs.

Petitioner, a motor equipment operator, sustained injuries on August 11when the ride-on lawn mower he was using while at work overturned. Petitioner obtained a doctor's recommendation that he not return to work until September 8.  After Plaintiff returned to work on September 8, the Employer filed fourteen Civil Service Law §75 disciplinary charges against the Petitioner alleging misconduct that occurred between August 12, and September 8, which charges the Appellate Division characterized as alleging the Plaintiff was "out of work on workers' compensation even though he was able to perform the essential functions of his job as a motor equipment operator."  

The Appellate Division, explaining that a court's review of an administrative determination in an employee disciplinary proceeding made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence, said where there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]" and the courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists, noting the Court of Appeals decision in Berenhaus v Ward, 70 NY2d 436.

As any credibility issues were resolved by the hearing officer, the Appellate Division said it found "no basis upon which to disturb the determination that the [Plaintiff] was guilty of the misconduct alleged, which was supported by substantial evidence."

Noting that "A court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness", the Appellate Division opined that "[u]nder the circumstances here, the penalty of termination of the [Plaintiff's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the full text of the Appellate Division's decision.

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