Failure to exhaust administrative remedies fatal to Petitioner's challenge to a final administrative determination

This litigation concerns payments that a school district [Respondent] is required to make to a charter school [Petitioner] with respect to students with disabilities in accordance with §2856[1][b] of the Education Law and addresses the fallout of an audit by the New York State Comptroller's Office in which it was determined that Respondent had overpaid the Petitioner for certain expenses.

Respondent learned that it had overpaid Plaintiff for those expenses for a period of approximately 12 years, ending in 2018, it informed the Petitioner that it would recoup the overpayment by deducting the amount of the overpayment from the next four scheduled payments to Petitioner.

Petitioner initiated this CPLR Article 78 proceeding, seeking, among other relief, a court order prohibiting Respondent from making such deductions, alleging that such recoupment was arbitrary and capricious. 

Supreme Court granted Respondent's motion to dismiss the Article 78 action contending that Petitioner failed to exhaust its administrative remedies. Petitioner appealed Supreme Court's action, claiming that it was not required to exhaust its administrative remedies because the case presents a pure question of law which the Appellate Division may decide without regard to the alleged failure to exhaust its administrative remedy.

The Appellate Division rejected Petitioner's argument, explaining that Petitioner's "contention is not properly before us inasmuch as it [was] raised for the first time on appeal' and thus it has 'no discretionary authority' to review it in this CPLR Article 78 proceeding."

The court then opined that assuming, arguendo, that the general rule requiring exhaustion of administrative remedies does not apply where the issue raised involves a pure question of law, this case does not present a pure question of law, noting that the relevant Department of Education regulation states that, "[i]n the event of the failure of a school district to fulfill the financial obligation required by section § 2856 [1] [b] of the Education Law equal to the amounts calculated pursuant to this section, upon notification by the charter school, the commissioner shall certify the amounts of the unpaid obligations to the comptroller to be deducted from State aid due the school district and paid to the applicable charter schools."

Noting that the statute provides that "[a]mounts payable under this subdivision shall be determined by the Commissioner of Education" and, citing citing Matter of Davis v Mills, 98 NY2d 120, the Appellate Division further explained that "[i]t is for the Commissioner [of Education] in the first instance, and not for the courts, to establish and apply criteria" regarding the propriety and administration of recoupment of alleged funding overpayments.

Holding that Supreme Court properly granted Respondent's motion and dismissed the petition based on Petitioner's failure to exhaust its administrative remedies and, after considering Petitioner's remaining contentions and concluding that they did not require modification or reversal of the Supreme Court's judgment in chief, dismissed Petitioner's appeal.

The Appellate Division's decision is posted on the Internet HERE.

Audits and reports issued during the week ending July 10, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 10, 2021.

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

Municipal Audits

Town of Hempstead Local Development Corporation – Fund Balance (Nassau County) The board did not effectively manage fund balance. The board also did not develop or adopt a fund balance policy that addresses what level of fund balance is needed or how any surplus funds will be used and the timeframe for doing so. In addition, the unrestricted fund balance grew to $2.4 million as of Dec. 31, 2020. Allowing $2.4 million to accumulate and sit idle without a specific purpose to benefit the town is not in the public’s best interest. 

Laurens Fire District – Financial Activities (Otsego County) The board did not establish adequate controls over district financial activities to safeguard assets. In addition, the board did not segregate key duties or implement adequate mitigating controls. Auditors also determined the board did not contract for an independent audit of its 2019 records, as required by law, or provide for an annual audit of the treasurer’s records. As of June 30, 2020, the district’s 2017 through 2019 annual reports were between 122 and 852 days late. 

Town of Oneonta – Town Clerk (Otsego County) The clerk properly recorded all the fees auditors reviewed and remitted all fees collected during the audit period in a timely manner. However, the clerk did not always deposit fees within the required time frame. The clerk did not deposit $5,266 in fees collected within the required time frame. In addition, the clerk did not prepare accurate bank reconciliations. The clerk also did not prepare accountability analyses. As of Oct. 30, 2020, the clerk’s bank account held an unaccounted for and unremitted cash balance of $262. 

City of Yonkers – Budget Review (Westchester County) The 2021-22 budget relies on nonrecurring revenue of $55.2 million, such as fund balance, one-time state funding and the sale of property, to balance its budget. The city could face a shortfall of $1.8 million for parking violations bureau revenue and $1.3 million for parks revenue. The city plans to borrow up to $15 million for tax certiorari settlements in the 2021-22 fiscal year. In addition, firefighting overtime costs could potentially be over budget by as much as $2 million based on the 2020-21 fiscal year overtime costs. Over the last 10 years, the city’s outstanding debt has grown 9.4% and the city’s debt service payments have risen 13.2%. The city will need $80.6 million to service its debt obligations during 2021-22.

 

 

Government Technology's webcast focusing on "Cybersecurity defense to meet the challenges of today and tomorrow" scheduled

Join Government Technology and Tanium on July 13, 2021 at 10 a.m. Pacific Time [1 p.m. Eastern Time] to learn how to build a future-proof cybersecurity practice. The foundational elements of a sound strategy, how to evaluate risk, the latest principles and frameworks that can be used as a starting point, and the common obstacles agencies can expect to face will be addressed.

Speakers:
Chris Hallenbeck, CISO for the Americas, Tanium
Moderator: Deb Snyder, Senior Fellow, Center for Digital Government

 

Click here to Register now for this 30-minute session and "walk away with what you need to know to create or evolve your cybersecurity defense to meet the challenges of today and tomorrow!"

Brad Loebs, Registration Coordinator
Government Technology | A division of e.Republic
https://webinars.govtech.com/
800-940-6039 ext. 1409
bloebs@govtech.com

 

Mitigating circumstances set out in the record held insufficient to justify imposing a lesser penalty than termination under the circumstances

In a disciplinary proceeding brought by the Department of Education [DOE], New York City Office of Administrative Trials and Hearings ALJ Joycelyn McGeachy-Kuls recommended that an employee be terminated for failure:

1. To comply with her supervisor’s instructions;

2. Refusing to work cooperatively with co-workers; and

3. Excessive use of the Internet during business hours for non-work related matters.

It is well settled that the charging party "... bears the burden of proving the charged misconduct by a preponderance of the credible evidence.

Finding that DOE proved that the employee browsed the internet for non-work-related matters for over 33 hours over a period of less than a month, failed to clock out for lunch, made false time-card entries, and spoke to a co-worker in a rude and insulting manner.

Noting that DOE sought to impose the penalty of termination, the ALJ concluded that notwithstanding certain mitigating considerations set out in the record, termination was appropriate under the circumstances and so recommended.

Click HEREto access Judge McGeachy-Kuls' determination in this matter. 

 

Stress experienced in the performance of recognized duties of the position is not an accident for the purposes of qualifying for accidental disability retirement benefits

For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and the burden is on the party seeking accidental disability retirement benefits to demonstrate that his or her disability arose from an accident within the meaning of the Retirement and Social Security Law. Typically the Comptroller's determination is upheld if supported by substantial evidence.

In this instance a State Trooper's [Petitioner] duties involved working with informants in an effort to infiltrate drug cartels and curtail the supply of drugs coming into the United States that entailed "interacting with dangerous individuals" which duties were set out in the job description for his position. Returning from an overseas mission, Petitioner experienced a panic attack in his office. Subsequently hospitalized and referred to an intensive therapy program, Petitioner was diagnosed with post-traumatic stress disorder, manic depression and anxiety, and deemed unable to return to work.

Petitioner filed an application for accidental disability retirement benefits based on this diagnosis, which Petitioner claimed was a result of his work with the drug cartels. His application was rejected by the retirement system, which decision, following administrative appeal, was ultimately sustained by the State Comptroller. Petitioner asked the Appellate Division to review the rejection of his application for accidental disability retirement benefits.*

The Appellate Division held that Petitioner's mental injuries were a direct result of the stress that he was under while working undercover and interacting with informants and members of dangerous drug cartels -- "dangerous undercover work was part and parcel of his regular duties as a narcotics investigator and was specifically set forth in petitioner's job description."

Accordingly, opined the court, the stress that produced Petitioner's mental injuries "was an inherent part of his job and was not unexpected, substantial evidence supports the finding that his injuries were not the result of an accident."

In contrast, the Appellate Division noted that with respect to cases involving emergency workers who sustained mental injuries after responding to the World Trade Center bombing, there is no statutory presumption that applies to Petitioner's situation and decline to disturb the Comptroller's determination denying Petitioner's application for accidental disability retirement benefits.

* The New York State and Local Retirement System denied Plaintiff's application on the ground, among others, that the incident that allegedly occurred on an unspecified date was not an accident within the meaning of Retirement and Social Security Law §363.

Click HEREto access the Appellate Division's ruling.