Claim for unemployment insurance benefits denied because the applicant was found to have voluntarily left his employment without good cause

A claim for unemployment insurance benefits filed by a City of New York maintenance and filter plant operator [Claimant] at a public swimming pool filed by resigned from his position. Claimant contended that he resigned because he believed that the working conditions in the maintenance facility constituted a dangerous work environment.

The Unemployment Insurance Appeal Board [Board] ruled that Claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause. Claimant appealed.

The Appellate Division affirmed the Board's decision, explaining "whether a claimant has good cause to leave employment is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence."

Citing Matter of Micara [Commissioner of Labor], 307 AD2d 568, the court said "Objections to the environmental conditions in the workplace will not [constitute good cause for leaving employment] unless the claimant can show reasonable grounds for the perception that his or her personal safety or health would be endangered thereby."

The court found that the record established that Claimant told his supervisor that he was required to clean a "hair catcher" twice a day but a defective valve made it impossible to control the water that gushed out, necessitating the help of other coworkers to hold down the cover. Although the valve was not permanently fixed after the defect was reported by Claimant, Claimant's supervisor testified that, although it was difficult to clean, it was not unsafe and, in any event, he told Claimant that he no longer was required to clean the hair catcher.

As to other perceived hazardous conditions at the pool maintenance facility reported by Claimant, his supervisor testified regarding the training and protective equipment provided the Claimant and that the facility is inspected by two government agencies for safety at least once a year. The supervisor also testified that he was trying to accommodate Claimant's request to be transferred to another assignment, but that Claimant had resigned before a position became available.

In addition, Claimant conceded that he did not have any adverse health issues as a result of his working conditions, nor did he consult with a doctor prior to resigning.

Accordingly, the Appellate Division found that substantial evidence supported the Board's decision that Claimant voluntarily left his employment without good cause.

Click HEREto access the Appellate Division's decision.

Audit Finds Western Regional OTB Lacks Accountability and Gave Out Lucrative Perks

The Western Regional Off-Track Betting Corp. (OTB) spent at least $121,000 on tickets to sporting events, concerts, food and alcohol for board members, employees and other individuals without the oversight required by state rules, according to an auditreleased by New York State Comptroller Thomas P. DiNapoli.

A second audit released found the OTB’s CEO did not reimburse the organization for his personal use of an official vehicle in a timely manner. 

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

 

Audits and reports issued during the week ending September 24, 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 September 24, 2021 

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

MUNICIPAL AUDITS

Town of Amherst Industrial Development Agency – Project Approval and Monitoring (Erie County) The board did not properly approve and monitor projects. Auditors determined the board did not ensure its project approvals were based on project applications that were completed and supported with applicable supplemental documentation and an adequate cost-benefit analysis. The board and officials also did not properly monitor to ensure the annual report filed with the New York State Authorities Budget Office and the Office of the State Comptroller was accurate with respect to job performance, sales tax exemptions and payment in lieu of taxes (PILOT) information for current and active projects.

 

Town of Berne – Board Oversight (Albany County) The board did not provide adequate oversight of financial operations and exceeded its authority under New York State Town law by authorizing the supervisor to pay all expenditures without prior audit. The board did not request or receive adequate monthly reports from the supervisor. For example, the board did not request or receive monthly cash reports detailing money received and disbursed, monthly bank reconciliations or cash balances for each fund. The board also did not ensure bank reconciliations were accurate, timely, and properly reviewed.

 

Town of Boylston – Financial Condition (Oswego County) The board did not effectively manage the town’s financial condition. As a result, it levied more taxes than necessary to sustain operations. The board also did not adopt realistic budgets and failed to monitor budgetary results during the year. In addition, the board allowed excessive levels of surplus funds to increase. As of December 31, 2020, the general fund’s surplus funds were $134,448, or 89% of actual expenditures. In addition, the highway fund’s surplus funds were $386,162, or 84% of actual expenditures. The board diminished financial transparency by annually appropriating fund balance that was not needed to fund operations.

 

Town of Clarence Industrial Development Agency (CIDA) – Project Approval and Monitoring (Erie County) The board did not properly approve or monitor its projects. The board also did not verify job creation goals or other criteria while assessing material aspects of the proposed projects prior to approving them. The board did not properly monitor projects to determine whether project goals were being met. Officials did not ensure that project approvals were transparent to the public by posting required documents on CIDA’s website. In addition, the board and officials did not ensure that CIDA’s annual report was accurate before submitting it to state oversight agencies.

 

Village of Clayton – Claims Auditing (Jefferson County) The board did not properly audit claims prior to payment or ensure written quotes were obtained as required. The board reviewed listings of claims but generally did not review them before approving payments. Health insurance claims totaling $495,104 were not approved for payment by the board, and claims totaling $52,000 to the local Chamber of Commerce did not include receipts as required. Of the purchases totaling $239,411 from 34 vendors auditors examined, village officials purchased goods and services totaling $141,269 from 27 vendors without obtaining written quotes or retaining supporting documentation of their solicitation efforts or justifications for not seeking competition, as required. The village’s procurement policy did not comply with New York State General Municipal Law. 

 

City of Cortland – Non-Contractual (NC) Employees’ Payroll Benefits (Cortland County) Two OSC audits issued in 2010 found NC employees received benefits inconsistent with Council approvals. Most of the prior control weaknesses remain and the council still has not established specific leave benefits of NC employees. As a result, auditors found seven NC employees earned 2,213 more hours of leave than employees in the collective bargaining agreements, valued at $110,500. Four NC employees were paid for 265 more hours of unused vacation leave than limits established for employees in the collective bargaining agreements, valued at $13,700. The mayor did not require department heads to track their time worked or to submit leave requests for taking time off, and the council did not approve all leave drawdown payments. 

 

Town of Hempstead – Compensatory Time (Nassau County)Town officials did not ensure comp time hours were accurately accrued and accounted for. As a result, officials do not have adequate assurance that all comp time is appropriately earned, accurately recorded and properly monitored. Town officials did not establish a policy or written procedures to ensure that comp time hours were authorized, documented and accounted for. Town officials also did not require comp time to be properly supported and approved by direct supervisors. In addition, town officials did not ensure separation payments that included a payment for unused comp time were supported. 

 

Town of Hempstead Local Development Corporation (THLDC) – Project Approval and Oversight (Nassau County) While the board properly approved and monitored projects in accordance with standard project procedures, it did not set clear and specific goals when approving projects. The board issued a total of $96.6 million of tax-exempt bonds and $1.8 million of taxable bonds during the audit period. However, THLDC officials cannot determine whether projects are meeting the intended purpose because the goals of the projects are not clearly defined in the authorizing resolutions.

 

Livonia Joint Fire District – Fire Truck Funding and Purchase (Livingston County) The board was not transparent when funding and purchasing fire apparatus. The board levied more taxes than necessary to finance annual operations and its actions hindered taxpayers’ ability to make informed decisions. The board also overestimated appropriations to accumulate more than $1.1 million in fund balance to purchase a fire truck costing more than $727,000, instead of establishing a capital reserve.

In addition, the board did not adopt fund balance, reserve or budgeting policies, along with multiyear financial and capital plans. 

 

Town of Randolph – Justice Court Operations (Cattaraugus County) The justice accurately recorded, deposited, disbursed and reported fines and fees in a timely manner. However, the justice did not ensure computerized case records were updated in an accurate and timely manner or that all closed cases were properly reported to appropriate state agencies.

SCHOOL DISTRICT AUDITS

Granville Central School District – Medicaid Reimbursements (Washington County) The district did not maximize Medicaid reimbursements by claiming for all eligible Medicaid services provided. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Claims were not submitted for 465 eligible services totaling $18,022. Had these services been claimed, the district would have realized revenues totaling $9,011, from 50% reimbursement of eligible costs.

 

Mineola Union Free School District – Financial Condition Management (Nassau County) The board and district officials did not effectively manage the district’s financial condition. As a result, more taxes were levied than were needed to fund operations. A pattern of over budgeting developed because the board did not adjust ensuing years’ budgets based on prior years’ actual results. Therefore, general fund appropriations were consistently overestimated from 2016-17 through 2019-20 by a total of $20.7 million. Over the four-year audit period, the board consistently appropriated fund balance totaling $12.9 million that was not needed.

 

Penn Yan Central School District – Network Access Controls (Ontario County, Steuben County and Yates County) District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. As a result, auditors identified 1,094 unneeded user accounts and six user accounts with unnecessary administrator permissions. District officials also did not enter into a service level agreement with the district’s information technology (IT) service provider to clearly identify the provider’s responsibilities and services to be provided. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

St. Regis Falls Central School District – Medicaid Reimbursements (Franklin County and St. Lawrence County) The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Claims were not submitted for 381 eligible services totaling $23,060. Had these services been claimed, the district would have realized revenues totaling $11,530 or 50% of the reimbursement.

OTHER REPORTS

Former Village of Chatham Clerk-Treasurer Pleads Guilty to Defrauding Village

New York State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police announced that Barbara Henry, the Village of Chatham’s former clerk-treasurer, has pleaded guilty to attempted official misconduct for unlawfully waiving her own health insurance premiums at the town’s expense.

“Ms. Henry took advantage of her public position to have the taxpayers fully fund her insurance costs,” said DiNapoli. “This kind of corruption drives up costs and erodes the public trust. Those who abuse the system will be caught and brought to justice. I thank District Attorney Paul Czajka and the New York State Police for their partnership in safeguarding public funds.”

“On behalf of the citizens and taxpayers of Chatham and Columbia County, I thank Comptroller Thomas DiNapoli, Chief Joseph Fiore and their team of investigators and auditors, as well as Sr. Inv. Eric Barnes and his State Police investigators,” DA Czajka said. “In particular, I commend Comptroller’s Investigator Candace Burnham, State Police Investigator Mathew Reilly and Deputy Chief ADA Ryan Carty for their hard work and dedication in this complex investigation. I strongly believe that, if there is one arm of state government that pays for itself by discovering financial misdeeds and deterring thefts, it is this investigative unit of the Comptroller’s office. I also note that Mayor John Howe, although not in office while the crimes were committed, took the lead in ensuring that all village employees cooperated fully.”

Henry, 59, of Chatham paid $3,586 in restitution for scamming the village health insurance premiums and stealing from her other employer Cadmus Lifesharing Association, a nonprofit organization based out of Massachusetts.

The joint investigation found that from April 2017 to August 2018, Henry used her position to unlawfully waive her own health insurance premiums, causing the village to pay Henry’s portion of health insurance. Henry was responsible for paying 50% of her health insurance while the village was responsible for the other 50%. Henry used her position to waive the cost to herself. She was employed by the village from late 2012 until she resigned in August of 2018.

Henry pleaded guilty before Judge J. Borgia-Forster in Chatham Town Court who also imposed a $250 fine in addition to the full restitution.

This is the second criminal conviction of a village official stemming from the joint investigation. In the first, and separate case, former Police Chief Peter Volkmann was sentenced on July 19, 2021 to pay nearly $93,000 in restitution after his felony guilty plea to grand larceny in the fourth degree.

 

Fiscal stress scores of municipalities reported by New York State's Comptroller

On September 22, 2021, New York State's Comptroller Thomas P. DiNapoli reported that thirty local governments in New York State ended 2020 in some form of fiscal stress. 

[Click on the text highlighted inBLUE below to access the full reports.]

The communities were identified by the Comptroller’s Fiscal Stress Monitoring System (FSMS). [In January 2021 the Comptroller issued fiscal stress scores for school districts and found 31 school districts in some level of fiscal stress.] .

The Comptroller releases fiscal stress scores on municipalities (excluding New York City) twice a year. The latest round of scores announced in September 22, 2021, identified 19 local governments  designated in fiscal stress, including six counties, four cities, and nine towns. This release is based on financial information of local governments operating on a calendar year basis (Jan. 1 – Dec. 31) for 2020 and covers all counties and towns, 44 cities, and 10 villages. In April 2021 DiNapoli announced that 11 local governments with non-calendar fiscal yearswere in stress.

“New York’s local governments have overcome some major fiscal hurdles during the COVID-19 pandemic,” Comptroller DiNapoli said, explaining that "Federal assistance, the restoration of state aid and resurging revenue have provided them much needed relief." However, cautioned the Comptroller, those designated as stressed are less likely to have the flexibility to adapt to fiscal challenges long term, noting that "local officials must budget and plan carefully to avoid fiscal stress and manage their communities through the uncertainties created by the pandemic.” 

In this latest round, the city of Poughkeepsie (fiscal stress score of 78.3), the city of Niagara Falls (72.1), and the town of Caneadea (65.4) are in the highest-ranking designation of “significant stress.”  The counties of Suffolk and Westchester, the city of Glen Cove and the town of Yates were in “moderate stress.”

Those designated as being “susceptible to fiscal stress” are the counties of Broome, Monroe, Nassau and Oneida, the towns of Centerville, Clarkstown, Colonie, Fort Covington, Pulteney, Sherman and Southport, and the city of Albany.

Of the 30 total governments in a fiscal stress designation for 2020, 17 were also in some form of fiscal stress in 2019. Four cities that were in “significant fiscal stress” in both years are Niagara Falls, Poughkeepsie, Amsterdam and Long Beach.

The Comptroller’s Fiscal Stress Monitoring System was implemented in 2013 to keep the public informed about the factors impacting local governments’ financial health. The system evaluates local governments on financial indicators including year-end fund balance, cash-on-hand, short-term borrowing, fixed costs and patterns of operating deficits and creates fiscal stress scores.

The system also evaluates information such as population trends, poverty and unemployment in order to establish a separate “environmental” score for each municipality which can be used to help describe the context in which these local governments operate.

The Comptroller’s report also found:

• In response to COVID-19, many local officials made difficult mid-year 2020 budget decisions about how best to meet their community’s service needs with reduced or less predictable revenues, while protecting public health and minimizing cuts to their own workforce.
• Rebounding monthly sales tax collections in much of the state supported local governments’ bottom lines, with many counties outside of New York City seeing only slight losses for 2020 overall compared with 2019, and collections in some counties even growing for the year.
• 173 local governments did not receive a fiscal stress score for fiscal year ending 2020. The vast majority of these (169) did not file in time to be scored, including the cities of Beacon, Dunkirk, Ithaca, Johnstown, Little Falls, Mechanicville, Mount Vernon, Rensselaer and Salamanca; and Greene and Ontario counties.

Lists

Municipalities in Stress for Fiscal Year Ending 2020

Municipalities Who Did Not File or Designated Inconclusive

Excel Spreadsheet

Detailed List of All Municipalities in State and Fiscal Stress Scores

Report

Fiscal Stress Monitoring System Municipalities: Fiscal Year 2020 Results

School district directed to resume reimbursing its retirees' Medicare Part B surcharges

Pursuant to collective bargaining agreements [CBAs] between the School District [District] and the Congress of Teacher [Congress], an association representing district employees, the District agreed to provide health care benefits for active and retired employees and their spouses and dependents. 

Retired employees over age 65, however, were required to enroll in a Medicare Part B program [Part B] and the district reimbursed retirees the cost of Part B coverage.

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium. This surcharge was an income-related monthly adjustment amount and referred to as the "IRMAA". Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to their standard Medicare premium payments.

In response to the District's informing retirees that it would no longer reimburse them for IRMAA surcharges, certain retirees [Plaintiffs] commenced a CPLR article 78 proceeding seeking [1] a court order annulling the District's decision, contending that the District's discontinuing such reimbursements violated Chapter 729 of the Laws of 1994 (as amended by Chapter 22 of the Laws of 2007), the State's Retiree Health Insurance Moratorium Act [Act]* and [2] a court order reinstating the reimbursements.

The Supreme Court agreed that the District's discontinuation of its reimbursements of IRMAA surcharges violated the Act, granted the Plaintiff's petition, and directed the District to reinstate providing the reimbursement, plus making appropriate retroactive reimbursements. The District appealed.

Explaining that Act sets "a minimum baseline or 'floor' for retiree health benefits" which is "measured by the health benefits being received by active employees," the Appellate Division sustained the lower court's ruling. In other words, the Act does not permit an employer to whom the statute applies to provide its retirees with lesser health insurance benefits than it provides its active employees.

Citing Matter of Baker v Board of Educ., 29 AD3d 574, the Appellate Division opined that a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees." 

In the words of the court, the purpose of the Act was to protect the rights of retirees who "are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired"**

It was undisputed both that the CBAs between the District and the Association did not address Part B or IRMAA reimbursements and that the district provided such reimbursements, even if, as it claims, it made such reimbursements inconsistently. 

The parties, said the court, conceded that the reimbursements were "retiree health insurance benefits that were voluntarily conferred as a matter of school district policy." Accordingly, the Appellate Division held that Supreme Court "correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute."

Additionally, the Appellate Division noted reimbursing retirees for Medicare Part B premiums is not an improper gift of public funds in violation of Article VIII, §1, of the New York State Constitution," citing Baker v Board of Education, 29 AD3d 574.

The Appellate Division sustained the Supreme Court ruling, finding it to have correctly determined that the District's discontinuation of IRMAA reimbursements violated the Act and thus had properly granted the Plaintiffs' petition.

* The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees.

** See Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, quoting Assembly Memorandum in Support of Bill, 1996 McKinney's Session Laws of New York at 2050.

Click HERE to access the Appellate Division's decision.