New York State Comptroller DiNapoli releases School District and Municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following School District and Municipal audits were issued on July 21, 2023.

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

 

Patchogue-Medford Union Free School District – Health Insurance Buyouts (Suffolk County) Although the district’s health insurance buyout program is generally cost-effective, the district could achieve greater savings by modifying the terms of the program. For example: the district should review the eligibility requirements of the program for married couples and family members employed by the district. For the 2021 calendar year, auditors found the district could have saved $73,966 if it had more cost-effective buyout requirements.

 

Village of Solvay – Financial Management (Onondaga County) The board and officials did not develop a budget for the electric fund and adequately manage its financial condition. From 2016-17 through 2020-21, the electric fund’s total net assets declined by approximately $9 million, and cash declined from $4.1 million to $1 million. Officials also did not maintain up-to-date records or provide adequate financial reports to the board; take action to ensure electric fund revenues kept pace with expenses; ensure that annual payments from the electric fund to the general fund totaling approximately $1 million were justified and supported; monitor the general fund budget during 2021-22; or develop long-term written financial or capital plans. Auditors found 31 general fund appropriation accounts were over expended by nearly $1.2 million.

 

West Hempstead Union Free School District – Nonstudent Network User Account Controls (Nassau County) District officials did not establish adequate controls over nonstudent network user accounts to help prevent unauthorized use, access and loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found the board and district officials did not: develop and adopt policies and procedures addressing key network user access controls, such as user account management, password security and user account controls, or disable 60 of the district’s enabled nonstudent network accounts that were not needed. Twenty-two of these accounts have not been used in more than five years.

 

Town of German – Supervisor’s Records and Reports (Chenango County) The former supervisor did not maintain the town’s accounting records and reports in a complete, accurate and up-to-date manner. As a result, the board’s ability to monitor financial operations was compromised, resulting in diminished transparency of the town’s financial operations. The former supervisor: incorrectly recorded almost $1 million of highway fund revenues and $57,000 of fire protection fund revenues in the general fund for the 2020 through 2022 fiscal years; did not provide budget status reports, or a monthly accounting of all money received and disbursed, to the board; consistently filed the annual financial report and the tax cap form late with the Comptroller’s Office; did not annually provide accounting records to the board for audit.

 

Tioga County Court and Trust Auditors reviewed the treasurer’s processes, procedures and records for the receipt and management of court and trust funds. They found the treasurer established adequate procedures, maintained appropriate records and properly reported court and trust funds as prescribed by statute. Auditors also found that records maintained by the County Clerk and Surrogate’s Court were up to date and complete with no material discrepancies.

 

East Ramapo Central School District – Nonpublic School Transportation (Rockland County) An audit issued in November 2019 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before June 30, 2019, for seven of the eight audit recommendations, officials did not actually take corrective actions. Of the eight audit recommendations, six recommendations were not implemented and the status of two recommendations could not be determined.

 

East Ramapo Central School District – Textbooks Loaned to Nonpublic School Students (Rockland County) An audit issued in August 2020 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before July 2020, of the six audit recommendations, one recommendation was implemented, two recommendations were partially implemented, and three recommendations were not implemented.

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Selected decisions distinguishing residence and domicile when determning eligibility for employment in the public service

 Click on the text in color to access the posting on the Internet.

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment  Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272. The City of Niagara Falls decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm; A summary of the decision in Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

 

Determining “continuous residency” for the purpose of qualifying for public office or employment. Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

 

Distinguishing between an individual's "domicile" and his or her "residence" . The decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

 

Distinguishing between residence and domicile Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

 

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), The Allen decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf. See, also, the Johnson decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm 

 

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances. Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, The decision is posted on the Internet at www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
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Employee found to have violated employer's domiciliary policy terminated . Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division. The Adrian decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

 

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

 

Employee terminated for failure to comply with the employer’s “residence” requirement 2013 NY Slip Op 04148, The decision in this action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm [See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html].

 

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773. The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs

 

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode” . Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

 

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc

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: payable to firefighters, police officers 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 HERE for more information.

The anatomy of challenging an administrative determination by an appeals board affirming the findings and decision of an administrative law judge

A police officer issued Plaintiff a traffic summons for operating a motor vehicle while using a cell phone in violation of Vehicle and Traffic Law §1225-d. Following an administrative hearing, at which the Plaintiff did not testify and appeared solely by counsel, an administrative law judge [ALJ] found Petitioner guilty of violating VTL §1225-d. Plaintiff appealed the ALJ's determination but the Administrative Appeals Board affirmed the ALJ's decision. Plaintiff then initiated a CPLR Article 78 proceeding in Supreme Court challenging the Appeals Board's determination, which action was transferred to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division, citing Matter of Mannino v Department of Motor Vehs. of State of N.Y.-Traffic Violations Div., 101 AD3d 880, noted that "[to] annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence* to support the determination". 

As the Mannino court, [supra] opined "... courts may not ... reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists" and "deference must be given to the fact-finding and credibility determinations of the administrative agency"**.

Further, explained the Appellate Division, credibility determinations were for the ALJ to make and there is no indication that the Plaintiff's "right to cross-examine the ... officer was so circumscribed as to deprive him of a fair hearing. " The court then confirmed the Appeals Board's decision, denied Plaintiff's petition, and dismissed the proceeding on the merits, with costs.

* Substantial evidence, said the court, is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

** See Matter of LaChance v New York State Dept. of Motor Vehs., 159 AD3d 1014 at 1015.

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

Tenured employee terminated after refusing COVID-19 vaccine after employee's application for a religious exemption was denied

This proceeding reviews the termination of a tenured teacher's [Petitioner] employment by the New York City Board of Education [DOE] during, and as a result of, the COVID-19 pandemic.

DOE required all its teachers to receive a vaccine against COVID-19 before being allowed enter and work in DOE buildings, Petitioner applied for a religious exemption, citing her religious beliefs against receiving a COVID-19 vaccine. DOE denied Petitioner's application for a religious exemption and her employment with the DOE was terminated as a result of Petitioner's refusal to receive the vaccine for COVID-19.

Petitioner commenced a CPLR Article 78 proceeding challenging DOE's decision and her resulting termination. Supreme Court sustained DOE's action.

Petitioner then moved "for leave to reargue and renew" her Article 78 action. Supreme Court denied Petitioner's motion. The Supreme Court's decision rejecting Petitioner's motion "to reargue and review" is set out below:

2023 NY Slip Op 32352(U) Docket Number: Index No. 156145/2022

This opinion is uncorrected and not selected for official publication.

TINA LYNCH,

Petitioner,

- V -

THE BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF NEW YORK, COMMUNITY

SCHOOL DISTRICT 21 OF THE BOARD OF EDUCATION

OF THE CITY OF NEW YORK, UNITED FEDERATION OF

TEACHERS,

Respondents.

DAVID B. COHEN, J.S.C.

By notice of motion, petitioner moves for an order granting reargument and reconsideration of the decision and order dated January 25, 2023, by which the petition was denied and the proceeding was dismissd. Respondents oppose and by notice of cross motion, move for an order adjourning the return date of the instant motion in order to submit opposition papers. It appears that the cross motion was resolved by a referee, who extended respondents' time to oppose the motion (NYSCEF 75), and they subsequently submitted their opposition.

I. PRIOR DECISION

This proceeding arises from the termination of petitioner's employment as a tenured teacher with respondents during and as a result of the COVID-19 pandemic. In sum, in response to respondents' policy requiring all Department of Education (DOE) employees to receive a vaccine against COVID-19 before being allowed enter and work in DOE buildings, petitioner applied for a religious exemption, citing her religious beliefs against receiving a COVID-19 vaccme [sic]. After petitioner's application was denied, and her employment with the DOE was terminated, petitioner commenced the instant proceeding.

By decision and order dated January 25, 2023, the petition was denied on the grounds that DOE' s reasons for denying religious exemption requests, in general and in petitioner's case, were not irrational, arbitrary, or capricious.

II. ANALYSIS

At the outset, I observe that petitioner's memorandum of law in support of this motion is 46 pages long, and although plaintiff does not submit a word count certification even though required to do so (22 NYCRR 202.8-b[c]), a review of the memorandum reflects that it contains more than 10,500 words, far above the permitted 7,000 word limit (22 NYCRR 202.8-b[a]), which in and of itself may warrant denial of the motion.

Nevertheless, the motion is addressed.

A. Motion to reargue

"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrive at its earlier decision" (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal quotation marks and citations omitted], lv dismissed and denied 80 NY2d 1005 [1992]; see Foley v Roche, 68 AD2d 558, 567-568 [1st Dept 1979]).

Here, petitioner does not demonstrate that any issue of fact or law was overlooked or misapprehended. Rather, she makes the same arguments that she previously made, which were considered and rejected (William P. Pahl Equip. Corp., 182 AD2d at 27 [reargument not designed to give unsuccessful party successive opportunities to reargue issues already decided]).

Moreover, while petitioner argues that the majority of justices in this court have found that respondents' policy was arbitrary and capricious and that she is the victim of "the unfortunate arbitrary and capricious assignment of her case to a Judge in the City of New York" who ruled otherwise (NYSCEF 66, p. 7), not only are the other courts' decisions not binding on me, but petitioner does not acknowledge the cases wherein the vaccination policy was upheld (see e.g., Matter of Lebowitz v The Bd. of Educ. of the City of New York, 2022 WL 6776229 [Sup Ct, New York County 2023, Love, J.]; Matter of Hogue v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 7109657 [Sup Ct, New York County 2022, Love, J.]; Matter of Maniscalco v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 797971 [Sup Ct, New York County 2022, Kotler, J.]; Matter of Bryan v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 14044362 [Sup Ct, New York County 2022, Engoron, J.]). Nor did petitioner distinguish the cases cited in the prior decision.

Petitioner's arguments regarding the New York City Human Rights Law are improperly raised for the first time here as she did not assert a NYCHRL claim in her petition (NYSCEF 1), which she acknowledges in the memorandum of law she filed in support thereof ("Petitioner would be well within her rights to assert a [NYCHRL] religious accommodation claim" [NYSCEF 3, p. 16]). In any event, petitioner's assertion that respondents failed to engage her in a cooperative dialogue as required by the NYCHRL has no merit (see e.g., Matter of Marsteller v City of New York, AD3d , 2023 WL 4065500 [1st Dept 2023] [petitioner failed to show that process for resolving accommodation requests did not comply with NYCHRL, as respondents offered information on process for reviewing accommodation requests, informed employees how to apply for exemption and to appeal denials, petitioner availed himself of process, respondents explained denial, and parties further engaged in appeals process]).

Similarly, petitioner's newly-asserted New York State unspecified constitutional religious freedom argument may not be considered for the first time on reargument, and, in any event, it is unavailing (see Kane v De Blasio, 623 F Supp 3d 339 [SD NY 2022] [City policy requiring workers in school settings to be vaccinated not unconstitutional]).

There is also no merit to petitioner's argument that this court erred in considering respondents' position statement (see Marsteller, 2023 WL 4065500 [where there has been no administrative hearing, "an agency may submit an official's affidavit to explain the information that was before the agency and the rationale for its decision, and this Court may consider such an affidavit even though it was not submitted during the administrative process"]). Leave to reargue is thus denied.

B. Motion to renew

Pursuant to CPLR 2221 (e ), a motion for leave to renew "shall be based upon new facts

not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion."

The new evidence proffered by petitioner - respondents' issuance of a policy in February

2023 which effectively repealed the vaccination mandate - is mentioned only in her counsel's affirmation, and she does not explain why the new policy is relevant to whether the prior policy was irrational, arbitrary and capricious, nor does she submit any supporting authority. In any event, "judicial review [of an Article 78 petition] is limited to the facts and record adduced before the agency" (Matter of Benjamin v Dept. of Haus. Preservation, 187 AD3d 433,433 [1st Dept 2020]). As the new policy would not change the prior decision, leave to renew is denied.

III. CONCLUSION

Accordingly, it is hereby ORDERED, that petitioner's motion for leave to reargue and renew is denied; and it is further ORDERED, that respondents' cross motion is denied as academic.

DAVID B. COHEN, J.S.C.