New York State Comptroller issues local government and school audits

On February 21, 2024 New York State Comptroller Thomas P. DiNapoli today announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Village of Mexico – Financial Management (Oswego County) The board did not adopt realistic budgets or manage fund balance. As a result, more taxes were levied than needed to fund operations. For the four fiscal years reviewed (2019-20 through 2022-23), the board did not establish a fund balance policy and maintained an excessive level of unassigned surplus fund balance in the general fund with balances ranging between $839,530 and $1.1 million, or between 109% and 124% of the ensuing year’s budget. The board did not consider historical or known trends of revenues and expenditures when developing the budgets, so revenues were underestimated by a total of $439,767 and expenditures were overestimated by a total of $287,238 for the audit period. The board also appropriated fund balance of $216,780 that was not needed to fund operations which contributed to the accumulation of surplus fund balance. Additionally, the property tax levy for 2023-24 was $509,000 while the village had over $1.1 million in surplus funds available at the end of 2022-23 to use toward supplementing next year’s budget.

 

Dolgeville Central School District – Fuel Monitoring (Fulton County) District officials did not adequately account for or monitor fuel usage. As a result, 690 gallons of diesel fuel valued at $2,064 were not properly accounted for during the 50-day test period. Officials did not maintain perpetual inventory records or take a periodic physical inventory of diesel fuel on hand. Consequently, no fuel reconciliations were performed.

 

West Genesee Central School District – Capital Assets (Onondaga County) District officials did not always properly monitor and account for the capital assets tested and did not conduct periodic physical inventories to help ensure the records were accurate and complete and the assets were on hand. The last physical inventory was completed in 2017 and officials only updated the district’s asset records on an annual basis thereafter. As a result, officials may be unable to identify lost or stolen items. Of the 337 assets totaling approximately $2.3 million selected for review, 54 were in use but not properly recorded in the inventory records and 38 of these assets, valued at over $176,000, were also not tagged as district property. Another 27 assets could not be located, including 18 with a total cost of $50,905 and nine with no documented cost. Additionally, 45 assets had an incorrect location recorded.

 

Village of Madison – Collections (Madison County) The clerk-treasurer accurately recorded collections. However, the collections were not always recorded and deposited in a timely manner, and the board did not establish adequate controls for collections. The clerk-treasurer did not make timely deposits for 247 collections totaling $120,743 and did not record 27 water fund collections totaling $4,120 in a timely manner. Officials did not receive any reports from a third-party vendor showing ambulance billings, collections, write-offs and unpaid balances. Officials also did not perform reconciliations of water and ambulance receivable accounts and the board did not approve adjustments and write-offs. Lastly, the board did not audit the clerk-treasurer's records and reports.

 

Village of Deposit – Claims Auditing (Broome County) Of the 93 credit card purchases during the audit period, the board did not ensure compliance with the village’s credit card policy and approved 83 purchases totaling $20,659 without the required supporting documents. As a result, the board approved the use of taxpayer funds without having support to show funds were being expended for legitimate village purposes and increased the risk for fraud, waste or abuse. 

 

Village of Islandia – Overtime (Suffolk County) During the audit period, the village paid eight employees a total of $149,964 in overtime that was not properly approved or supported by the employees’ timecards. Auditors found 95% of the village’s overtime was paid to the fire marshal and building inspector and was equivalent to 73% and 49% of their budgeted salaries, respectively.  The fire marshal approved his own overtime that totaled $88,718 and did not provide any documentation he claimed to have in support of his overtime pay. The building inspector approved his own overtime that totaled $53,719 for the audit period. Village officials and the inspector had no documentation to support the hours that resulted in overtime, or the actual work performed. Six other employees were paid $7,528 without preapproval or documentation explaining why the overtime was necessary. 

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The doctrines of res judicata and collateral estoppel apply to arbitration awards with the same force and effect as they apply to judgments of a court

The State of New York Justice Center for the Protection of People with Special Needs [Justice Center] adopted the findings of fact and conclusions of law of an administrative law judge [ALJ] made after a hearing. The ALJ had found that Petitioner committed category two neglect as defined by Social Services Law §493(4)(b). Justice Center then denied Petitioner's request that the relevant substantiated report of neglect be amended and sealed and Petitioner initiated a CPLR Article 78 appealing the Justice Center's decision. 

The Petitioner had exercised her right to a hearing before the ALJ but prior to the hearing, the Justice Center moved to preclude relitigation of the facts decided against the Petitioner during an earlier arbitration hearing conducted pursuant to a collective bargaining agreement in effect between the New York State Office for People With Developmental Disabilities [OPWDD] and the Petitioner's union, at which the Petitioner was represented by the union's counsel and OPWDD was represented by the Justice Center.

Although Petitioner opposed the Justice Center's motion, the ALJ granted the Justice Center's motion, precluded the Petitioner "from relitigating the issues of whether she had a duty and breached her duty to provide adequate medical care to the Service Recipient and follow the Service Recipient's seizure protocols." 

The evidentiary scope of the administrative hearing was thus limited to whether the Petitioner's breach of duty resulted in or was likely to result in physical injury or serious or protracted impairment of the physical, mental, or emotional condition of the service recipient and, if substantiated, whether the category level designated, category two neglect, was appropriate.

The ALJ determined that the Justice Center proved, by a preponderance of the evidence, that the Petitioner committed an act of category two neglect. The ALJ's recommended decision was adopted in its entirety and the Petitioner's request to amend and seal the substantiated report was denied by the Administrative Law Judge of the Administrative Hearings Unit, who was designated by the Executive Director of the Justice Center to make such decisions. Petitioner commenced the instant Article 78  proceeding to review the Executive Director's determination.*

The Appellate Division, citing Ippolito v TJC Dev., LLC, 83 AD3d 57, ruled that the ALJ properly granted the Justice Center's motion to preclude Petitioner from relitigating the issues of whether she had a duty and breached her duty to provide adequate medical care to the Service Recipient as "The doctrines of res judicata and collateral estoppel apply to arbitration awards with the same force and effect as they apply to judgments of a court". 

The court noted that the Justice Center met its burden of demonstrating that the identical issue was "necessarily decided in the prior [contract arbitration] proceeding and is decisive of the present proceeding and, in opposition, the [Petitioner] failed to demonstrate the absence of a full and fair opportunity to contest the prior [contract arbitration] determination."

Accordingly, the Appellate Division opined that "at the administrative hearing, the [Petitioner] was precluded by the doctrine of collateral estoppel from relitigating the questions of fact that were resolved against her in the [contract] arbitration proceeding".

* The Appellate Division's decision notes: "At an administrative hearing to determine whether a report of category two neglect is substantiated, the Justice Center is required to establish, by a preponderance of the evidence, that the subject committed abuse or neglect. Upon a review of such an administrative determination made after an evidentiary hearing, the determination of the Justice Center must be upheld if supported by substantial evidence."

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

 

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Former town supervisor pleads guilty to jobbery

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain". 

On February 16, 2024, State Comptroller Thomas P. DiNapoli, Attorney General Letitia James, and the New York State Police announced a former Town of Throop Supervisor, William Tarby, paid full restitution as part of his sentencing after pleading guilty to stealing $11,000 from the town. The former town supervisor pleaded guilty to grand larceny and official misconduct in January, 2024, and as part of his plea agreement, cannot seek public office again.

Comptroller DiNapoli said “William Tarby scammed town residents by abusing his position for personal gain.” DiNapoli thanked Attorney General James and the New York State Police for their work in partnering with him to bring Tarby to justice and said "My office will continue to work with law enforcement agencies across the state and country to protect taxpayers from corruption."

“Every New Yorker should be able to trust that the officials elected to serve them are operating in the public’s interest, not using their office to enrich themselves,” noted James. “William Tarby exploited his position to steal thousands of dollars from the town he was supposed to be serving. Today, we are ensuring that he will be held accountable. I thank Comptroller DiNapoli and our partners in law enforcement for their support in bringing Mr. Tarby to justice.” 

The press release issued by the Office of the New York State Comptroller reported that "Tarby, 58, was the town supervisor of Throop from 2004 through 2019. In 2020, based upon concerns from the town, DiNapoli’s office commenced an audit of the town, which found financial irregularities. A subsequent investigation found that from January 2017 to December 2019, Tarby pocketed almost $11,000 from the town. 

"Investigators determined Tarby made unauthorized cash withdrawals from town bank accounts, took cash back on checks made out to the town, and kept for himself cash paid to the town for scrap metal, fines, and the sale of equipment, among other things. Following the audit and investigation, the Office of the State Comptroller referred the case to the Office of the Attorney General for criminal prosecution.

"Tarby was sentenced in Cayuga County Court by Judge Thomas G. Leone.

"Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236."

 

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