Audits and reports issued during the week ending October 1, 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 October 1, 2021. 

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

MUNICIPAL AUDITS

Town of Lyndon – Town Clerk’s Collections (Cattaraugus County) The clerk generally recorded, remitted and reported collections accurately and in a timely manner. Collections were deposited accurately but the clerk did not always make deposits in a timely manner. Collections totaling $7,050 or 49% of the collections recorded from Jan. 1, 2020 through May 6, 2021 were not deposited within three days, as required. The board did not perform an annual audit of 2020 records, as required.

Town of Machias – Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not adequately perform his financial duties and cannot provide support for almost $1.6 million in interfund loans. Although interfund loans must be repaid by the close of each fiscal year, interfund loans have grown from $246,280 in 2015 to almost $1.6 million as of Dec. 31, 2019. The supervisor also did not provide adequate oversight of the bookkeeper. The supervisor did not provide detailed monthly financial reports to the board. Auditors found the supervisor did not review monthly bank reconciliations. In addition, the supervisor did not prepare and file the annual financial reports for 2019 and 2020 with the Office of the State Comptroller in a timely manner.

Town of Stanford – Financial Management (Dutchess County) The board did not properly manage the town’s financial condition and did not adopt realistic budgets. The board adopted an unbalanced 2020 budget that was missing information and misleading, which resulted in a 58% decrease in real property taxes. The board also adopted a 2021 budget with a $749,159 increase in the tax levy over the prior year and levied more taxes than necessary to fund general fund operations. In addition, the board exceeded its fund balance policy limit by $645,366. 

OTHER REPORTS

On October 1, 2021, State Comptroller Thomas P. DiNapoli, Madison County District Attorney William Gabor and New York State Police Superintendent Kevin P. Bruen announced that a second former state police mechanic [Mechanic #2] has pleaded guilty to corrupting the government in the third degree, a felony, and petit larceny, a misdemeanor.  At the time of his plea, he paid back $12,865 in restitution and was placed on interim probation.

This is the second guilty plea that has resulted from the Comptroller's and the District Attorney's joint investigation.    

Mechanic #2 was found to be breaking the law and will be held fully accountable. One of two non-sworn civilian employees responsible for maintaining police vehicles, Mechanic #2 he was convicted of ordering auto parts and tools for personal use on the state police-paid account at United Auto Supply.

DiNapoli’s analysis of thousands of United Auto Supply invoices found that between April 2015 and October 2020, there were over $54,000 in inappropriate purchases on the state police account.

Earlier another civilian mechanic [Mechanic #1] pleaded guilty to felony corrupting the government in the third degree and was sentenced to interim felony probation. As part of his plea, Mechanic #1 paid back $20,000. He is due back in court for sentencing in December.

State police said they recovered more than $4,800 worth of state funded auto supplies, tools and parts at Mechanic #2's home.

Mechanic #2 retired during the investigation and was not employed with the state police at the time of his arrest. He had been employed by the state police for at least 30 years.   

Mechanic #2 appeared before Judge Patrick O’Sullivan in Madison County Court. He is due back in court on Dec. 2, 2021.

Amendments to Education Law §310 procedures for submitting appeals to the Commissioner seeking for the removal of school officers proposed

The proposed action would amend Part 276 and §277.1 of Title 8 NYCRR pursuant to Education Law, §§101, 207, 305, 310 and 311 with respect to Education Law §310 regarding appeals to the Commissioner and the initiation of proceedings seeking the removal of school officers.

NO HEARING(S) SCHEDULED

The text of the proposed rule amendments and any required statements and analyses may be obtained from Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.

Data, views or arguments may be submitted to: Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Public comment will be received until 45 days after publication of this notice. [Published in the NYS Register on September 29, 2021].

Rory M. Christian designated to serve as Chair of the New York State Public Service Commission and CEO of the State's Department Of Public Service

On September 30, 2021, New York State Governor Kathy Hochul announced the designation of Rory M. Christian as Chair of the Public Service Commission and chief executive officer of the Department of Public Service, the staff arm of the Commission.* 

Mr. Christian began his career in the energy industry with KeySpanEnergy where he first served as a civil engineer before transitioning to a role engaging government agencies operating in Long Island and New York City. In that role, he was responsible for coordinating activities between KeySpanand government organizations, negotiating contracts, developing contingency plans and streamlining operations to satisfy both organizations' operational needs.

While serving at Exelon Energy, Mr. Christian developed new products targeting public sector clientele and helped facilitate the creation of multiple partnerships and alliances. Mr. Christian also previously served as the Director of Energy Finance and Sustainability for the New York City Housing Authority. More recently, he was the Director of New York Clean Energy at Environmental Defense Fund where he provided strategy management, programming, business development and stakeholder collaboration for the Clean Energy program in NY.

Mr. Christian graduated from the City College of New York's, Grove School of Engineering with a bachelor's degree in Civil Engineering and an MBA from the Baruch College, Zicklin School of Business. 

* Nonpartisan by law since 1970, the six member Public Service Commission regulates New York State's electric, gas, steam, telecommunications, and water utilities and oversees the cable TV industry. The Commission also exercises jurisdiction over the siting of major gas and electric transmission facilities and has responsibility for ensuring the safety of natural gas and liquid petroleum pipelines. Members of the Commission are appointed by the Governor and confirmed by the State Senate for a term of six years or to complete an unexpired term of a former Commissioner.

Procedural errors or omissions preclude consideration of an Education Law §310 appeal to the Commissioner of Education on its merits

Petitioners in the appeal to the Commissioner of Education alleged that the school district [District] “systematically interfered with” the election to the school board by “providing absentee voter poll data before the polls closed"; using District resources “to advocate a ‘yes’ vote on the [s]chool [b]udget”; an employee organization "obtained voter contact information and used it 'to send an advocacy postcard to arrive simultaneously with [e]lection [b]allots,'” and that the superintendent “targeted email communications about the [b]udget and [t]rustee [v]ote to parents of children in the school district and not to the whole electorate.”

Petitioners asked the Commissioner issue an order overturning the results of the election and vote. Citing 8 NYCRR 275.10, the Commissioner said that in an Education Law §310 appeal to the Commissioner:

a. The petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief; and

b. Mere speculation as to the existence of irregularities or the effect of irregularities is an insufficient basis on which to annul election results.

The Commissioner then addressed a number of procedural issues raised by respondents in this appeal: 

1. With respect to Petitioners' challenge to alleged actions the employee organization in the voting process, the Commissioner opined that it is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education in appeals submitted pursuant to §310 of the Education Law and thus she lack jurisdiction over Petitioners' claims with respect to the employee organization's alleged participation in the election.

2. With respect to Petitioners' claims involving the Freedom of Information Law [FOIL],  the Commissioner held that such claims must dismissed for lack of jurisdiction, explaining that §89 of the Public Officers Law "vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York."

3. The Commissioner then ruled that Petitioners’ remaining claims must be dismissed for failure to join "a necessary party," indicating that an individual or an entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. As an example, the Commissioner noted that in an appeal involving a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.”

Accordingly, the Commissioner dismissed Petitioners' §310 appeal for lack of jurisdiction. 

The Commissioner then noted that "even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits," explaining that in order to invalidate the results of a school district election, the petitioner must either:

(1) Establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or

(2) Demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

On this record, said the Commissioner, Petitioners have failed to carry their burden of proving that any irregularities occurred and affected the outcome of the election.

In the words of the Commissioner: "Although Petitioners object to various alleged actions of the district respondents, [Petitioners] have not provided any evidence, such as an affidavit from a district voter, to establish that such actions impacted the results of the election in any way."

Thus, opined the Commissioner, even if the appeal were not dismissed on procedural grounds, it would have been dismissed on the merits. 

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

New York State Department of Health Commissioner appointed

On September 29, 2021, New York State Governor Kathy Hochul announced Mary T. Bassett, MD, MPH, has been appointed Commissioner, NYS Department of Health.

Governor Hochul said "With more than 30 years of experience devoted to promoting health equity and social justice, both in the United States and abroad, Dr. Bassett's career has spanned academia, government, and not-for-profit work."

Dr. Bassett's appointment is effective December 1, 2021.