Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
The Appellate Division sustained a Supreme Court decision that, in effect, denied the plaintiff's motion to vacate an order dated September 29, 2016, on the ground that the plaintiff failed to make the motion within a reasonable time, and also denied the plaintiff's motion for leave to enter a default judgment.
Click HEREto access the Appellate Division's ruling.
In this regard, said the court, "[a] motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion."
A motion to renew, opined the Appellate Division, is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance, and the denial of a motion to renew will be disturbed only where it constituted an abuse of the trial court's discretion" (Walden v Varricchio, 195 AD3d 1111, 1114 [2021] [internal quotation marks and citations omitted]; see Williams v Annucci, 175 AD3d 1677, 1679 [2019]).
Accordingly, the Appellate Division concluded that there no abuse of that discretion on the part of the lower court.
Click HEREto access the Appellate Division's decision.
Audits issued during the week ending December 24, 2021.
Click on the text highlighted in COLOR to access the complete audit report.
Office of Addiction Services and Supports (OASAS): Oversight of Chemical Dependence Residential Services (2020-S-49) - OASAS is responsible for certifying residential services and issuing operating certificates. A program’s eligibility for certification is contingent on the results of an OASAS inspection. Auditors found OASAS is not adequately monitoring programs, is not meeting the recertification review requirements, and many programs’ operating certificates are past their end date.
Department of Environmental Conservation (DEC): Management of Invasive Species (Follow-Up) (2021-F-16) - An audit issued in July 2020 found that while DEC had been active in establishing programs to address invasive species, improvements in its oversight, monitoring, and communication relating to boat inspections, permits, and early detection and assessment of invasive species could strengthen its ability to mitigate the spread of invasive species. In a follow-up, auditors found DEC made progress addressing the problems identified in the initial audit report. However, additional improvements are still needed.
Division of Military and Naval Affairs: Lead Contamination of State Armories (Follow-Up) (2021-F-22) - An audit issued in September 2020 found that the division had generally established adequate controls to ensure that the federally funded areas of all armories were tested for lead and that necessary steps were taken to address remediation when high levels were detected. While the division’s controls provided reasonable assurance that the public was not being unnecessarily exposed to lead at most armories, in certain instances, more could be done. In a follow-up, auditors found the division has made progress in addressing the issues identified in the initial audit report. -
State Education Department (SED) (Preschool Special Education Audit Initiative): Life Skills Home Training Tutorial Program for Preschoolers Inc. – Compliance With the Reimbursable Cost Manual (2020-S-37) - Life Skills is a New York City-based not-for-profit organization authorized by SED to provide full-day Special Class, half-day Special Class, and Integrated Preschool Special Education services to children with disabilities. The New York City Department of Education refers students to Life Skills and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2018, auditors identified $278,815 in reported costs that did not comply with the requirements for reimbursement.
State Education Department (Preschool Special Education Audit Initiative): These Our Treasures, Inc. (TOTS) – Compliance With the Reimbursable Cost Manual (2020-S-60) - TOTS is a New York City-based non-for-profit organization authorized by SED to provide preschool special education services to children with disabilities. The New York City Department of Education refers students to TOTS and pays for TOTS’ services using rates established by SED. For the three fiscal years ended June 30, 2017, auditors identified $182,856 in reported costs that did not comply with the requirements for reimbursement.
MUNICIPAL AUDITS
Tompkins County Industrial Development Agency – Project Approval and Monitoring (Tompkins County) - While the board evaluated projects prior to their approval, board members should improve the Tompkins County Industrial Development Agency’s efforts to monitor businesses’ job performance and tax exemptions. Officials did not obtain required documentation to support project owners’ self-reported job performance. As a result, the board has no assurance the reported job performance information is accurate. The board did not ensure payments in lieu of taxes (PILOTs) were billed and paid in accordance with PILOT agreements. As a result, a business was underbilled $78,600, a business was not billed for its agreed upon PILOT totaling $18,900 and another business was overbilled $873.
Town of Attica – Payments to Not-for-Profit Organizations (Wyoming County) - The payments town officials made to not-for-profit organizations were not always for appropriate purposes, properly approved or supported by sufficient documentation. Officials used public funds to make donations or impermissible gifts totaling $47,400 to various local community organizations. Officials also paid nine claims totaling $30,150 before board audit and approval. In addition, officials did not ensure sufficient documentation was included with 16 claims totaling $52,550.
SCHOOL DISTRICT AUDITS
Longwood Central School District – Overtime (Suffolk County) - District officials did not appropriately approve and document overtime for non-instructional employees. As a result, there is an increased risk that overtime costs totaling $774,499 were more than necessary. Auditors found the Board of Education did not adopt written policies to ensure that all overtime hours worked were pre-approved, adequately recorded and incurred only when necessary. Non-emergency overtime was also not generally preapproved in writing. In addition, officials did not maintain documentation to justify compensatory time earned.
New Rochelle City School District – Information Technology (Westchester County) - Officials did not establish adequate controls over network and financial application user accounts to prevent unauthorized use, access and/or loss. In addition to sensitive information technology (IT) control weaknesses which auditors from the Comptroller’s Office communicated confidentially to officials, auditors found officials did not adequately manage network user accounts as 84 former employees/vendors had active user accounts. Auditors also found 35 generic user accounts that had never been used and were unnecessary. In addition, officials did not ensure district procedures were followed to communicate financial application user account changes to the vendor.
Schuylerville Central School District – Medicaid Reimbursements (Washington County) - The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. Claims were not submitted and reimbursed for 382 eligible Medicaid services provided. Had these services been claimed, the district could have realized revenues totaling $6,375. The district also lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Service providers did not document all service encounters in the Medicaid billing system.
Spencer-Van Etten Central School District – Information Technology (Chemung County, Schuyler County, Tioga County and Tompkins County) - District officials have generally taken adequate steps towards helping to ensure computerized data was safeguarded through managing user accounts, providing adequate training and adopting and distributing a written information technology (IT) contingency plan. However, certain sensitive IT control weaknesses and audit recommendations were communicated confidentially to officials. District officials agreed with the audit results.
Three Village Central School District – Financial Operations (Suffolk County) - District officials did not provide appropriate oversight over financial operations. District officials did not properly assign administrative and user access rights to the financial software. Officials also did not establish an electronic banking policy or adequate bank transfers or electronic payment procedures nor did they segregate the treasurer’s duties or provide adequate oversight. In addition, district officials did not present all claims to the claims auditor for review and approval prior to payment. At least $37.9 million in claims were not reviewed or approved, as required, prior to payment. Officials did not ensure $43 million in claims are processed through the normal accounts payable process. The treasurer controlled most aspects of these transactions rather than the accounts payable department. Therefore, there was no segregation of duties.
The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.
A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.
Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.
The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HEREfor more information.
On December 23, 2021, Governor Kathy Hochul announced the signing of legislation providing former Buffalo police officer Cariol Horne, eligibility for retirement benefits. Ms. Horne was rendered ineligible to file for service retirement benefits as the result of her wrongful termination from the City of Buffalo Police Department.
Although subsequently the termination was corrected and she was reinstated to her former postition, the termination meant she was ineligible for retirement benefits. The legislation, Chapter 800 of the Laws of 2021, grants Ms. Horne a retroactive retirement date of August 5th, 2010 for the purposes of determining her retirement benefits from the New York State and Local Police and Fire Retirement System.