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September 16, 2015

Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested


Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested
Source: The New York State Register dated September 16, 2015

The City of Batavia is requesting proposals from qualified administrative services agencies, and/or financial organizations relating to administration, trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

All proposals must be submitted no later than 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A copy of the proposal questionnaire may be obtained by e-mailing fairbank@batavianewyork.com .

September 15, 2015

Time required to research and prepare an appeal not a "good cause” sufficient to excuse an untimely filing of the appeal with the Commissioner of Education


Time required to research and prepare an appeal not a "good cause” sufficient to excuse petitioner's untimely filing of the appeal with the Commissioner of Education
Appeal to the Commissioner of Education, Decision #16,823

Among the issues presented to the Commissioner of Education in this appeal seeking the removal of certain members of a school board was the representation that the petitioners had “good cause” for the late filing of certain elements of their appeal in that it was necessary to “go through” Commissioner’s decisions and other public records in order to proceed with the matter. 

While the Commissioner noted that “It is unclear from the application and record, however, what exactly petitioners needed to “go through” and how this caused a delay,” the Commissioner, citing a number of rulings,* said that “To the extent petitioners may be claiming that they needed time to gather documents and evidence, perform research, and prepare their application, it is well settled that these reasons do not constitute ‘good cause’ upon which to excuse an untimely filing.”

* See, for example, Appeal of Bentley, et al., Decision No. 16,750; Appeal of Levendusky, Decision No. 16,455; Appeal of Thompson, Decision No. 15,706; and Appeal of Bayer, Decision No. 13,561).

The decision is posted on the Internet at:

September 14, 2015

School audits by the State Comptroller issued during the week ending September 12, 2015


School audits by the State Comptroller issued during the week ending September 12, 2015
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following reports were issued during the week ending September 12, 2015. Click on the material highlighted in color below to access the full report.

Canandaigua City School District [Procurement of Professional Services]

Fonda- Fultonville Central School District [Payroll]

and the 

Newcomb Central School District [Extra classroom activity fund]

Pre-suit investigations by EEOC


Pre-suit investigations by EEOC
EEOC v Sterling Jewelers, Inc., USCA, 2ndCircuit, Docket 14-1782

Before the EEOC may bring an enforcement action under Title VII against an employer, it must comply with certain administrative obligations, including receiving a formal charge of unlawful discrimination, provide notice of the charge to the employer, investigate the charge and give the employer notice of its determination that there was “reasonable cause” to believe that a violation of Title VII had occurred. EEOC must then make a “good faith effort” to conciliate the matter.*

In this Title VII action a magistrate judge issued a “Report and Recommendation” finding that EEOC not prove that it satisfied its statutory obligation to conduct a pre-suit investigation of allegations that Sterling Jewelers “engaged in a nationwide practice of sex-based pay and promotion discrimination. The magistrate judge recommended that the federal district court grant Sterling’s motion for “summary judgment” dismissing EEOC’s action.

The district court adopted the magistrate judge’s Report and Recommendation and granted Sterling’s motion seeking summary judgment. EEOC appealed.

Citing EEOC v Keco Indus., Inc., 748 F.2d 1097, the Circuit Court of Appeals ruled that the federal district court was incorrect in granting Sterling motion for summary judgment, explaining that the magistrate judge improperly reviewed the sufficiency of the EEOC investigation rather than simply whether there was an investigation. Under Title VII, said the Circuit Court, “courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.”

The court noted that only EEOC’s statutory pre-suit investigation obligation was at issue as the parties agreed that EEOC’s participation in the mediation would have satisfied its obligation to conciliate in the matter if it brought an enforcement action. Further, there were no allegations the EEOC had not satisfied any of its other pre-suit obligation in this instance.

As EEOC had, in fact, conducted an investigation in this case, the Circuit Court vacated the summary judgment order and remanded the matter to the district court for further proceedings.

* See 42 U.S.C. §2000e–5(b)

The decision is posted on the Internet at:

September 12, 2015

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015


Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on September 10, 2015. Click on the material highlighted in color below to access the full report.

Department of Economic Development - certain local development corporations
In April 2014, DED made a $16,250.00 advance payment to the LDC. Two months later, the LDC claimed the remaining $48,750 of the contract amount. To receive the second claim, the LDC needed to demonstrate that the entire $65,000 in expenses was incurred during the contract period for work relevant to the contract objectives, and was for expenses not previously paid from another funding source. Auditors found the LDC was able to substantiate only $4,284.09 in expenses under the contract.

Department of Environmental Conservation – oil spill funds
DEC generally collected all fees due the Oil Spill Fund for the facilities tested. However, of 11 sampled major oil storage facilities, auditors identified eight that inaccurately reported the number of barrels of petroleum products received, subject to fees and surcharges, or transshipped. For the sampled facilities, these inaccuracies did not materially affect the revenue collected. DEC’s internal controls over payment of cleanup, administrative, and indirect costs provide reasonable assurance that only appropriate expenses were charged to the fund.

Department of Environmental Conservation – electronic waste fees
Auditors found DEC properly collected, recorded, and deposited fees and surcharges due, but did not segregate the responsibilities for collecting and recording cash receipts of the fees and surcharges. Also, supervisory review of revenue and deposit activities was not documented.

Division of Housing and Community Renewal – modernization program at NYC Housing Authority
DHCR officials did not have accurate and up-to-date management information regarding the status of NYCHA’s projects. The information officials provided was dated February 2010. Specifically, five projects (totaling about $4.6 million) were not yet finished, although DHCR officials indicated that they were complete. In addition, eight of the ten projects officials listed as incomplete were, in fact, finished. DHCR officials paid $6.8 million for a change order for one project that was not adequately supported. DHCR did not have formal timeframes for awarding a contract once funding was approved.

State Education Department – Astor services for children
Auditors identified $39,050 in costs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $25,565 in other-than-personal-service (OTPS) costs that were either not allowed, not properly documented, or were not reasonable or necessary. In addition, auditors identified $13,485 in non-reimbursable fundraising activities as well as two teachers and seven teacher’s assistants who did not have the required certifications for their job titles.

Unified Court System – Legal Aid Society
Auditors reviewed select payments totaling $5,448,384 UCS made to Legal Aid for salaries, equipment, and real estate rentals and found Legal Aid spent these funds appropriately.  However, UCS overpaid Legal Aid $412,184 for fringe benefit expenses that were not actual and allowable under the terms and conditions of the contract.  Legal Aid did not appropriately reconcile fringe benefits at year end, moved funds in every non-personal services budget category without providing UCS with the required notification, and moved $546,803 from non-personal services budget categories to personal services budget categories without obtaining the required prior written approval from UCS.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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