New York State Comptroller DiNapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on May 11, 2023.

Links to material posted on the Internet highlighted in COLOR.

 

City of Amsterdam – Budget Review (Montgomery County) The significant revenue and expenditure projections in the city’s 2023-24 proposed budget are reasonable. However, certain revenue and expenditure projections and other matters should be reviewed by the mayor and council. In addition, city officials did not implement all of the recommendations in the previous review letter when preparing the 2023-24 proposed budget. Auditors found that the mayor submitted the 2023-24 proposed budget to the council on April 19, 2023, or 18 days after the charter-established deadline and the proposed budgets for the general and recreation funds are not structurally balanced because they include subsidies from other funds to finance their operations. Also, the proposed budget, as in the three previous years, allocates appropriations for personal services, contractual expenditures and employee benefits between the operating funds using unsupported allocation methods.

 

Town of Chemung – Intermunicipal Consolidation Agreement (Chemung County) Town of Chemung (Chemung) officials did not adequately monitor the Chemung and Town of Ashland (Ashland) Intermunicipal Consolidation Agreement’s highway service labor costs. Officials did not establish procedures to evaluate labor costs by town. For example, timecard information was not used to monitor labor costs for services provided to Ashland and highway employees’ timecards did not always identify their work location needed to allocate costs. As a result, labor costs were not equitable, and Chemung could have incurred approximately $23,000 in additional costs to provide services to Ashland.

 

City of Long Beach – Budget Review (Nassau County) The significant revenue and expenditure projections in the 2023-24 proposed budget are reasonable. However, City officials only partially implemented the recommendations provided in the prior year’s budget review letter.  In addition, the city’s proposed budget includes a tax levy of $59.9 million, which is $5.5 million above the legal limit and the city council has adopted a local law authorizing an override of the tax levy limit.

 

North Amityville Fire Company, Inc. – Cash Disbursements (Suffolk County) The board did not ensure that all cash disbursements were for appropriate company purposes or supported. Of the $3.6 million in disbursements made during the two-year audit period, auditors found disbursements totaling $585,792 were for inappropriate purchases. Examples included: $106,542 in unsupported cash disbursements made to six board members and the chief; $44,820 for domestic flights and lodging in, among other places, Dallas, Indianapolis, Las Vegas, and Nashville; $32,093 for service and maintenance to vehicles the company did not own or could not provide support for; $11,258 for Christmas gifts that included, but were not limited to, gift cards, clothing, drones and video games. The disbursements also included $10,853 for one board member’s Alaskan cruise vacation and the chief’s vacation to a clothing-optional resort in Jamaica with his spouse. Other items included: $7,239 for alcohol; $5,121 for 14-karat gold and diamond rings for the chief and his spouse; $2,728 for optical services; and $1,998 for professional basketball tickets.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Complying with the requirements of New York State's Freedom of Information Law

In New York Civ. Liberties Union v State of New York, 4 NY3d 175 the Court of Appeals held that "mandamus* is available 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law'"

In this action brought by Plaintiff pursuant to CPLR §7803[1] seeking certain agency records under color of New York State's Freedom of Information Law, the Appellate Division held that the agency, in response to Petitioner's request for information to assist him in formulating FOIL requests for certain records, "fully complied with its obligation under 21 NYCRR 1401.2(b)(2) to 'indicate the manner in which the records are filed, retrieved or generated to assist [Petitioner] in reasonably describing records'".

The court noted that the FOIL appeal officer provided Petitioner with a list of records maintained by subject matter, instructed Petitioner to include "relevant docket numbers, dates, names, addresses, [and] descriptions," and advised Petitioner to avoid the use of "phrase[s] or reference material[s]" because the records were not maintained or characterized in that manner.

The Appellate Division noted that nothing in the regulation supported Petitioner's argument that agency was required to produce additional information regarding how the records were stored and retrieved in its database. Further, said the court, Petitioner's reliance on Defenders v New York City Police Dept. (2017 NYLJ LEXIS 1412) was misplaced as the court held "the NYPD was not required to provide database fields."

* The writ of mandamus, Latin for we command, to compel an official to perform "acts that such officials are duty-bound to perform." Other ancient writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of certiorari, compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of quo warranto [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Applying the Doctrine of Laches barring a party from seeking judicial or quasi-judicial relief because such action is determined to be untimely

If a petitioner fails to demand for relief within a reasonable time after the right to make it occurs, or knows or should know of facts indicating a clear right to relief, the petitioner's claim can be barred by the Doctrine of Laches. This was the situation in the instant CPLR Article 78 action in which Petitioner commenced a CPLR Article 78 proceeding seeking reinstatement of her employment with the Manchester-Shortsville Central School District [District].

During the 2019-2020 school year, Petitioner was employed by the District as a full-time English Language Arts (ELA) teacher. However, in June 2020, Petitioner's position was changed from full to part time. Petitioner's name was placed on a "preferred eligible list of candidates for appointment to a vacancy" pursuant to Education Law §3013(3)(a).* Subsequently the District posted an opening for a full-time ELA teacher. Petitioner applied for the opening and went through the formal application process, but when she was offered the position, she rejected the offer.

After the District hired an individual to fill the vacancy, Petitioner submitted a demand that she be recalled to her prior position pursuant to Education Law §3013(3)(a). The District refused Petitioner's demand and Petitioner commenced the instant CPLR Article 78 proceeding by filing a petition on November 10, 2021. Supreme Court effectively granted the District motion to dismiss Plaintiff's petition and Plaintiff appealed.

The Appellate Division, however, sustained Supreme Court's dismissal of Plaintiff's petition as untimely. The Appellate Division opined that, where, as here, a proceeding is in "the nature of mandamus to compel, it [is] required to have been commenced within four months after the refusal by [the] respondent, upon the demand of [the] petitioner, to perform its duty", citing Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181.

The Appellate Division explained that;

1. "The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time and does not refer to the equitable doctrine of laches", citing Granto, 148 AD3d at 1695"; and

2. "[T]he four-month limitations period of CPLR Article 78 proceedings has been treat[ed] ... as a measure of permissible delay in the making of the demand", citing Matter of Norton v City of Hornell, 115 AD3d 1232, lv denied 23 NY3d 907.

The Appellate Division conclude that under the circumstances, Petitioner knew or should have known of facts that gave her a clear right to relief as of April 19, 2021, when the District posted the opening for the full-time ELA teacher position. Petitioner, however, did not demand that she be recalled to her prior position until August 31, 2021, beyond the relevant four-month limitations period and thus "the proceeding is barred by the doctrine of laches."

* Petitioner was offered, and accepted, the position of a part-time ELA teacher, from which position Petitioner subsequently resigned for financial reasons.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Applicant for accidental disability retirement must show the disability resulted from an accident within the meaning of the Retirement and Social Security Law

Petitioner filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to posttraumatic stress disorder and injuries to his back and left knee as the result of the suspect's discharge of a firearm in Petitioner's direction and Petitioner's injury as a result of his attempting to scale a fence in the process of apprehending the suspect.

The New York State and Local Police and Fire Retirement System denied Petitioner's application, finding that the incidens giving rise to his application for accidental disability retirement benefits did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §363. Following a hearing, the Comptroller adopted the Hearing Officer's decision, and this CPLR Article 78 proceeding ensued.

The Appellate Division, citing Matter of Kelly v DiNapoli, 30 NY3d 674, sustained the Comptroller's decision, noting, as is relevant here, it is well established that an injury which occurs in the course of an activity undertaken in the performance of the ordinary employment duties of a police officer is not an accidental injury within the meaning of RSSL §363.

The court opined that the neither the suspect's discharge of a firearm in Petitioner's direction nor Petitioner's injury resulting from his attempt to scale a fence in the process of apprehending a suspect were the result of an accident within the meaning of RSSL §363. Rather, said the Appellate Division, Comptroller's determination is supported by substantial evidence the injuries suffered by Petitioner resulted from an inherent risk in Petitioner performing his duties as a police officer.

* See Matter of Grall v DiNapoli, 196 AD3d 962.

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

Seeking documents or information pursuant to New York State's Freedom of Information Law

In the Matter of Law Offices of Cory H. Morris [Plaintiff] v Suffolk County [Respondent], Plaintiff appealed the judgment of Supreme Court [1] denying Plaintiff's petition seeking the disclosure of certain records pursuant to New York State's Freedom of Information Law [FOIL];* [2] denying an award of attorney's fees and litigation costs; and [3] dismissing the proceeding.

The Appellate Division modified and reinstated, on the law, those branches of the petition which sought to compel disclosure of certain records pursuant to FOIL and for an award of attorney's fees and litigation costs. 

The Appellate Division then remanded the matter to Supreme Court for further proceedings, explaining a number of FOIL essentials, including the follows:

1. "In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;**

2. "The statutory time to respond to a FOIL request for records is 'within five business days of the receipt of a written request,' and the agency should respond by 'mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date ... when such request will be granted or denied'" ... that "[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number;

3. "21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days (Matter of Madden v Village of Tuxedo Park, 192 AD3d 802);

4. "[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial (Matter of Snyder v Nassau County, 199 AD3d at 924);

5. "A petitioner who does not 'appeal[ ] the denial in writing' will generally be deemed to have 'failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief' (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, citing Doe v Lake Grove Sch., 107 AD3d 841;

6. However, where, as here, the agency "fails to inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion [of administrative remedies] is excused (Matter of Lepper v Village of Babylon, 190 AD3d 738, Matter of Barrett v Morgenthau, 74 NY2d 907; [see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648];

7. Plaintiff's alleged "aware[ness] ... of the availability of administrative review ... did not relieve the agency of its responsibility to advise the [Plaintiff] that such review was available, and of the procedures for securing it (Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604);

8. "Contrary to the [Respondents'] contention, the proceeding was not rendered academic by its post-commencement disclosure of records in response to some of the [Plaintiff] requests, since an actual controversy between the parties still exists concerning whether the [Plaintiff's] remaining requests are exempt from disclosure (see Matter of Barry v O'Neill, 185 AD3d 503, 505; cf. Matter of McDevitt v Suffolk County, 183 AD3d 826; Matter of Convers v County of Orange, 139 AD3d 1060;

9. The Plaintiff's "request for attorney's fees and other costs is ... not academic, nor would it have been rendered academic even if the [Respondent] had eventually provided all of the materials sought (see Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896; and

10. "Since that branch of petition which was to compel disclosure of certain records remains undetermined in light of [the Appellate Division's] determination," the Appellate Division held that "the [Plaintiff's] request for an award of attorney's fees and litigation costs is premature (Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731; see Matter of McDevitt v Suffolk County, 183 AD3d at 828)."

Accordingly, as noted earlier, the Appellate Division reinstated those branches of the petition which were to compel disclosure of certain records and for an award of attorney's fees and litigation costs, and remitted the matter to Supreme Court, Suffolk County, "for further proceedings consistent herewith and a new determination of those branches of the petition."

* Public Officers Law, Article 6.

** N.B.: Typically submitting a "formal FOIL request" pursuant to administrative procedures established by the agency is required to obtain the documents or information sought. However, the release of certain public records may be prohibited by statute such as Education Law §1127 and §33.13 of the Mental Hygiene Law. Further, the agency may decline to provide documents or information sought pursuant to a FOIL request, or otherwise, that fall within the ambit of one or more of the "FOIL exceptions" that the agency could rely upon in denying a FOIL request, in whole or in part, absent a prohibition in law.

Click HERE to access the Appellate Divisions decision posted on the Internet.