Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees
Matter of Barron (State of N.Y. Off. of Mental Health), 2016 NY Slip Op 00234, Appellate Division, Third Department

A licensed master social worker, [Employee] at a state psychiatric center was served with a notice of discipline charging her with misconduct and proposing a penalty of termination based upon her unauthorized contact with a prison inmate confined at a state correctional facility while she was out on workers' compensation leave. The State Office of Mental Health alleged that Employee visited and exchanged correspondence with the inmate on numerous occasions in violation of the Department’s anti-fraternization policy.

The Department suspended the employee without pay pending the disposition of the notice of discipline on the basis that her continued presence at her work location represented "a potential danger to persons or property or would severely interfere with operations." Prior to the disciplinary arbitration hearing the Department and Employee entered into a stipulation that set out certain actions by Employee set out in Charge [1] and that the Department would withdraw portions of one of the charges served on her set out in Charge [2].

Following the hearing, the arbitrator found Employee guilty of Charges 1 and 2 and concluding that termination of employment was the appropriate penalty. Employee filed an Article 75 petition seeking a court order vacating the arbitration award and reinstatement to her position. Supreme Court denied her petition and Employee appealed the Supreme Court decision.

The Appellate Division dismissed Employee’s appeal, explaining:

1. Where, as here, "the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321;

2. Vacating an arbitration award is only appropriate where it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power and, further, “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact;"

3. Although the parties' prehearing stipulation limited the scope of the conduct charged with respect to certain events, it did not preclude the use of evidence related to the withdrawn portion of the charges for other purposes, such as impeachment;

4. Even if admission of a letter alleged not admissible as evidence at the hearing amounted to an erroneous evidentiary ruling, it would not justify vacating the award; and

5. Notwithstanding Employee’s “misguided belief that she was not subject to the Department’s anti-fraternization policy during the time that she was out on workers' compensation leave” pursuant to Civil Service Law §71, during which time she admittedly had engaged in extensive contacts with the inmate, she remained an employee of the Department while absent on workers’ compensation leave and thus subject to the policies and standards applicable to all employees.

Point 5. above suggests that an employee is subject to his or her employer’s rules, regulations and policies while absent on any authorized leave and, perhaps, when such absence is “unauthorized” as well.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00234.htm

Administrative Appointments Announced on January 15, 2015

Administrative Appointments Announced on January 15, 2015

Source: Office of the Governor

Kevin John Bishop, Esq.has been named assistant counsel to the Governor. Mr. Bishop previously worked as an associate at Condon & Forsyth, LLP for six years, where he oversaw commercial litigation, including federal and state practice, for major corporations. Additionally, during that time, Mr. Bishop worked in a secondment with British Airways, PLC, where he advised company leadership on all aspects of corporate governance, oversaw regulatory compliance, negotiated and drafted contracts, and coordinated litigation strategy. Prior to that, Mr. Bishop was an assistant university counsel at the University of North Carolinaat Chapel Hilland an associate at McDermott Will & Emery, LLP. Mr. Bishop holds a J.D. from the University of North Carolinaat Chapel Hill, an M.P.P. from Duke University, and a B.S. and M.S. from Boston University.

David Perino, Esq. has been appointed assistant counsel to the Governor with a focus on legislative matters. Prior to this role, Mr. Perino served as special counsel at the New York State Legislative Bill Drafting Commission. Before that, he was a special prosecutor for the City of Watervliet. Mr. Perino was also assistant corporation counsel for the City of Cohoes Corporation Counsel’s Office and performed assigned counsel work for the New York State Appellate Division – Third Department. He holds a J.D. from Albany Law School of Union University and a B.S. in Chemical Engineering from Carnegie Mellon University.

Terrance Pratt, Esq. has been named assistant counsel to the Governor with a focus on education. Mr. Pratt previously served as assistant director for government relations with the New York State Council of School Superintendents. Mr. Pratt has also worked as an associate attorney at Malkin & Ross, providing legal services to a diverse client group on a wide range of critical policy issues. Prior to that, Mr. Pratt served as counsel to former New York State Assemblyman Pete Grannis and the Assembly Insurance Committee. In 2007, Mr. Pratt served as an assistant counsel at the New York State Department of Environmental Conservation. Mr. Pratt holds a J.D. from Albany Law Schooland a B.A. from Monmouth University.

Rosemary J. Powers has been appointed deputy director of state operations for programs. Ms. Powers previously served as chief operating officer of the New York State Department of Transportation where she was responsible for regional office functions, all statewide business service initiatives and the Office of Right of Way. Ms. Powers has held a variety of positions in state and local government, including deputy chief of staff in the Office of Massachusetts Governor Deval Patrick. In this position, Ms. Powers was a lead strategist for Governor Patrick, providing advice and counsel to him and many other senior members of the Patrick Administration. Achievements included enactment of the Transportation Finance Reform bill, groundbreaking legislation related to controlling the cost of health care and proposals to address youth and gun violence. Prior to that, Ms. Powers served as both chief of staff at the Massachusetts Department of Environmental Protection and as government affairs director for the Department of Conservation and Recreation. Ms. Powers received her B.A. from Suffolk Universityand an M.P.A. from Harvard’s John F. Kennedy School of Government.

Brenda Torres has been appointed assistant secretary for the environment. Ms. Torres most recently served as director of the Northeast Regional Office in the Unites States for the Puerto Rico Federal Affairs Administration. In that role, Ms. Torres managed and coordinated community service programs for more than 3 million people living in the Tri-State region; and represented the Commonwealth of Puerto Rico before federal, state and local governments on issues related to infrastructure, health care, and economic development. Ms. Torres has also served as a consultant for El Puente where she helped develop two major sustainability initiatives. Prior to that, Ms. Torres was the executive director of Santa Clara Valley Audubon Society in California, and the San Juan Bay National Estuary Program in Puerto Rico. Ms. Torres is a LEED AP and holds a masters in environmental management from Yale University. She has also completed a certificate executive program for nonprofit leaders at Stanford University’s Graduate School of Business and finished her B.S. in Environmental Sciences at the University of Puerto Rico.

Andrew Ball has been appointed director of scheduling for Governor Cuomo. Previously, Mr. Ball served as confidential assistant to the Governor where he coordinated many aspects of the Governor’s travel and schedule, including helping manage advance and logistical operations for public events statewide. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse Universityin 2010.

Reid Sims has been appointed deputy director of Executive Chamber operations. Mr. Sims previously served as an operations coordinator for the New York State Executive Chamber, where he oversaw advance and event operations for the Governor. Mr. Sims previously worked on Governor Cuomo’s 2010 gubernatorial campaign. Mr. Sims holds a B.A. in political science from the City University of New York.

Camille Joseph Varlack, Esq. has been appointed deputy director for ethics, risk and compliance in the Executive Chamber. Until recently, Ms. Varlack was special counsel to the superintendent of the Department of Financial Services for ethics, risk and compliance. In her new role, Ms. Varlack will coordinate the Governor's statewide ethics, risk and compliance program across agencies and authorities, working with the state's chief risk officer. She will continue to directly advise the superintendent of the Department of Financial Services. Ms. Varlack previously served as a principal law clerk for the New York State Supreme Court and assistant vice president and counsel at AXA Financial, Inc. Ms. Varlack has also served as an assistant district attorney for the Kings County District Attorney’s Office, legal assistant in the law department of News Corporation and an investigative assistant for the New York State Attorney General. Ms. Varlack holds a B.A. from the State University of New York at Buffaloand a J.D. from Brooklyn Law School.

Kevin Amien Younis has been appointed chief operating officer for Empire State Development. Mr. Younis has worked for ESD for the past nine years – serving in a variety of high-level positions, including executive vice president of public policy, planning and incentives; senior vice president for government affairs and regional president; vice president for intergovernmental and legislative affairs; and director of state legislative affairs. Prior to that, Mr. Younis was policy director for the Civil Service Employees Association and chief of staff to former New York State Assemblyman David Koon. Mr. Younis holds a certificate in trade union management and leadership from Harvard University, an M.P.A. from Nelson A. Rockefeller College of Public Affairs and Policy and B.A. from SUNY Cortland.

Maria Lehman has been appointed chief operating officer for the New York State Thruway Authority where she is currently the interim director of maintenance and operations. While at the Thruway, Ms. Lehman served as the program manager for New York Stateon the Peace Bridge, and the project director for risk management and project controls on the new New York Bridgeover the Hudson. Before working in state government, Ms. Lehman was the vice president and corporate business sector lead for transportation at Bergmann Associates, and the corporate director for quality assurance at URS Corporation. She has also served as the commissioner of public works for Erie County, New York. Ms. Lehman holds a B.S. in civil engineering from SUNY Buffalo and is a licensed professional engineer in several states.

Lindsey Boylan has been appointed chief of staff at the Empire State Development, after previously serving as the vice president of business development. Prior to her time at ESD, Ms. Boylan was the vice president of RBC Capital Markets. She has also held a number of roles at the Bryant Park Corporation, including director of business affairs, associate director of operations and operations manager. Ms. Boylan has also served as a project manager for Alex Garvin & Associates, a planning and consulting firm. Ms. Boylan holds an M.B.A from Columbia Universityand a B.A. in Political Science from Wellesley College.

Richard J. Zahnleuter, Esq. has been appointed general counsel at the New York State Department of Health, where he recently served as acting general counsel. Mr. Zahnleuter has held multiple roles at the Department of Health over the past 15 years, including director of the Bureau of Litigation and associate counsel for the Bureau of Professional Medical Conduct. Mr. Zahnleuter was a trial attorney in the private sector between 1989 and 1999, served as deputy special counsel to Governor Mario Cuomo for four years, and was an attorney with the Department of Health from 1981 to 1985. Mr Zahnleuter holds a J.D. from Albany Law Schooland a B.S. in Biology from SUNY College of Environmental Science and Forestry at Syracuse University.

Karen M. Hunter has been appointed Chief of Staff at the New York State Thruway Authority, after previously serving as interim executive director. Prior to that, Ms. Hunter served as Director of Financial Administration at New York State Homes and Community Renewal. In that role, Ms. Hunter oversaw banking, investment and payment processes, contracting and purchasing functions, federal and state reporting requirements, and regulatory compliance. Before that, Ms. Hunter worked as upstate regional director for the Housing Finance Agency and was an associate budget examiner for the New York State Division of the Budget. Ms. Hunter has an M.B.A. from SUNY Albany, and holds a B.A. from University of Illinoisat Urbana-Champaign.

Stephanie Davis has been appointed deputy commissioner of policy and communications at the Division of Homes and Community Renewal. Since 2003, Ms. Davis has worked at Excellus BlueCross BlueShield where she held positions as the regional vice president of communications for the Utica Region and the director of communications for the Southern Tier. From 1992 to 2003, she held multiple roles working for the New York State Senate. She is former chair of the Greater Utica Chamber of Commerce Government Affairs and Economic Development Council and holds a B.A. in Political Science from Union College.

Janet Ho has been appointed deputy commissioner at the New York State Department of Motor Vehicles. Ms. Ho most recently served as the assistant secretary for transportation for Governor Cuomo. Prior to her time at the Executive Chamber, Ms. Ho worked for the New York State Senate Finance Committee as a deputy director of budget studies concentrating primarily in the areas of transportation, environment, economic development, energy and housing. Before that, she was a senior legislative budget analyst for the New York State Assembly Waysand Means Committee. She holds an MPA from John Jay College of Criminal Justice, a B.A. in Psychology, as well as a B.A. in Criminology, Law and Society, from U.C. Irvine.

Maria Knirk, Esq. has been appointed deputy commissioner of the New York State Department of Agriculture and Markets, where she has held multiple titles, including special assistant for federal policy and assistant commissioner. Prior to working in New York Stategovernment, Ms. Knirk was a regulatory policy analyst at the Delaware Department of Agriculture. Ms. Knirk has previously served as a law clerk for Varnum Attorneys at Law, and an adjunct instructor at Southwestern Michigan College. She holds a B.A. in communications, a B.B.A. and an M.B.A. from Ferris State University. She also holds a J.D. from Michigan State University College of Law.

Raymond LaMarco has been appointed assistant commissioner for administrative services at the New York State Department of Transportation. Mr. LaMarco has more than 33 years of experience working in New York Stategovernment. He has held multiple positions at the Department of Transportation, including director of human resources management and employee relations. He has previously held positions as the Director of Labor Relations at the NYS Office of Children and Family Services and Director of Human Resources Management at the NYS Office of Alcohol and Substance Abuse. He holds a B.S. in organizational management from Nyack College, an A.A.S. degree in construction technology from Herkimer Community College and an occupational health and safety certification from Cornell University.

Thomas A. Pohl, Esq. has been appointed deputy counsel for the New York State Office of General Services. Mr. Pohl has been with OGS for more than 40 years, previously serving as an associate attorney for Legal Services. In this role, Mr. Pohl worked with senior staff on New York State’s real property issues, including the development of public policy and management of litigation and defense. Prior to that, Mr. Pohl served as a senior attorney for Realty in the OGS Division of Land Utilization, chief of the OGS Bureau of Land Disposition, and attorney in the OGS Bureau of Land Disposition. Mr. Pohl holds a J.D. from Albany Law Schooland a B.A. from Siena College.

Patrick Meredith has been appointed assistant commissioner for regional operations at the Department of Transportation, Western New York. Mr. Meredith has nearly two decades of experience in the public sector, overseeing the management and construction of capital improvement projects including roads, parks, storm water and sewer systems. Mr. Meredith previously served as commissioner of public works for the Town of Irondequoit, and before that, as deputy commissioner for the Town. Previously, Mr. Meredith owned his own construction company and served as assistant engineer for the Town of Penfield. Mr. Meredith holds an A.O.S. from Alfred State College, State University of New York.

John J. McCarthy has been appointed special advisor for agency operations and initiatives at the Metropolitan Transportation Authority, where he previously served as deputy press secretary. Most recently, Mr. McCarthy was a senior advisor at Everytown for Gun Safety. Prior to that, he served as deputy commissioner for public information at the New York City Police Department. Mr. McCarthy has also held positions under Mayor Bloomberg, including senior advisor for public safety and deputy press secretary. Mr. McCarthy has previously worked for a number of government agencies including, the Port Authority of New York and New Jersey, the New York State Office of Homeland Security and the United States General Services Administration. He holds a J.D. and a B.A. from Fordham University.

John McKay has been appointed executive officer of corporate communications, branding and marketing at the Metropolitan Transit Authority. Mr. McKay most recently served as the director of communications for the New York City Comptroller’s Office. Prior to that, he was the vice president of corporate communications at NBC Universal. Mr. McKay has held a number of roles at Sony Music Entertainment/SONY BMG, including vice president of Communications, vice president of media relations, senior director of communications and director of editorial services. Mr. McKay holds a B.A. in East Asian studies with a minor in religious studies from Pennsylvania State University.

Kelli Owens has been appointed legislative coordinator at the New York State Office of Child and Family Services. Ms. Owens has more than two decades of experience in both the public and private sector. She previously served as vice president for external affairs at Planned Parenthood Advocates of New York, where she was the principal in-house lobbyist. Prior to that, Ms. Owens worked as the government relations and public policy director for the YWCAs of the northeast region, supervising legislative and media affairs for New York, Connecticut, Massachusetts, and New Jersey. Ms. Owens holds a B.A. in Political Science from Utica College of Syracuse University.

 

Selected Reports issued by the Office of the State Comptroller during the week ending January 16, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 16, 2016

Click on text highlighted in color to access the full report

Erie County Community College - Audit Highlights

 

Officials at Erie Community College (ECC) gave more than $100,000 in raises and bonuses to senior officials without proper approval, according to an audit released on January 14, 2016by State Comptroller Thomas P. DiNapoli.
 
DiNapoli’s auditors discovered during the period of September 2010 through February 2015, college officials created 10 senior executive positions with annual salaries averaging $75,600 and totaling $756,000 without written authorization from the board of trustees. The college also provided these employees with benefits including health insurance and retirement benefits with an annual cost of more than $200,000.

As noted in the audit, college officials also made questionable compensation payments to two senior executives totaling $77,000 and increased the salaries of all senior executives by 2 percent, totaling $27,000, again without board approval.

According to State University of New York regulations governing community colleges, the ECC board lacked authority to delegate the power to establish salaries and approve raises.

The Comptroller’s audit also revealed:

The leave records of senior executives were inaccurate and, as a result, executives accumulated $25,000 worth of leave time they were not entitled to;

A retired executive cashed out an overstated leave balance upon separation, resulting in a $2,500 overpayment;

The college paid 11 professional service providers a total of $440,000 without using requests for proposals (RFP) or other required competitive processes;

The college did not enter into written contracts with eight professional service providers for services totaling $342,000, as required; and

Financial transactions between the college and the Erie Community College Foundation and the Auxiliary Services Corporation of Erie Community College were not documented properly or conducted in a transparent manner.

The Comptroller made a series of recommendations to ECC to improve oversight, accountability and transparency of college operations.

Recommendations to the board of trustees include:

Ensure significant financial decisions such as the creation and funding of new positions are conducted in an open and transparent manner;

Authorize all salaries, compensation and fringe benefits provided to senior executives;

Adopt comprehensive time and attendance policies for senior executives;

Enter into written contracts with professionals establishing the services to be provided, the time frames for those services and the basis for compensation;

Ensure that written agreements with affiliated entities stipulate how performance will be measured and evaluated; and

Review student activity fee allocations provided to and used by clubs and organizations to determine whether the amount of the fee is appropriate and necessary.

Additional recommendations to college administrators include:

Ensure that all official action taken by the board, including actions pertaining to salaries and benefits, are recorded in the board minutes;

Procure professional services using a competitive method such as an RFP process; and

Review documentation to verify that the college has obtained state contract pricing.

Although ECC officials did not agree with all of the audit findings, it was indicated the board of trustees has already taken action to address a number of recommendations made in the report.

The audit report and the college’s response are posted on the Internet at:  http://www.osc.state.ny.us/localgov/audits/colleges/2016/eriecommunity.pdf

State audits released

Dept. of Health - Suspicious and Fraudulent Medicaid Payments to Affiliated Brooklyn Dentists – Follow-Up F-24

 An initial audit issued in April 2013, identified about $2.3 million in highly suspicious and possibly fraudulent Medicaid claims that were submitted by the six affiliated dentists. The affiliated dentists created false entries in medical records to support claims, and that it was not possible to perform all of the procedures the dentists billed in relation to the hours their offices were open. In addition, the dentists paid staff to recruit Medicaid recipients to their offices. In a follow-up, auditors determined DOH made progress in addressing the problems identified in the initial audit report. At the time of the follow-up review, the state was paid $681,336 in restitution. Additionally, four dentists were removed from the Medicaid program and the remaining two dentists were prohibited from receiving Medicaid payments.

http://osc.state.ny.us/audits/allaudits/093016/15f24.pdf

Dept. of Health – Medicaid Program: Overpayments of Ambulatory Patient Group

An initial audit issued in August 2013, identified flaws in DOH’s eMedNY claims processing system that allowed improper APG payments on 6,615 claims totaling $1,204,186. Auditors also identified $933,399 in duplicate payments that were made to providers for the same services under both the old and the new (APG) payment methodologies. Furthermore, auditors identified 56,241 claims totaling $4,286,603 that were at risk of duplicate payment and needed to be reprocessed using the new APG methodology. In a follow-up, auditors found DOH has made significant progress in implementing the recommendations made in the initial audit, which included recovering nearly $898,000 in overpayments and implementing new claims processing controls to prevent future improper payments.

http://osc.state.ny.us/audits/allaudits/093016/15f20.pdf

United HealthCare Insurance Co. of NY – Empire Plan Drug Rebates

In accordance with its contract, United is required to negotiate agreements with drug manufacturers for rebates, discounts, and other considerations and pass 100 percent of the value of the agreements on to the prescription drug program. United subcontracted key functions of the prescription drug program to Medco Health Solutions, which was subsequently bought by Express Scripts Holding Company. Auditors found United did not credit the state $371,635 in rebates because manufacturer agreements utilized to obtain rebates for the Empire Plan’s prescription drug program did not meet or exceed Express Scripts’ best existing rebate agreements for other clients, as required. Express Scripts did not invoice, collect, or allocate $196,845 in rebates due to errors in the rebate process, and Express Scripts retained rebates of $141,804 despite its contractual requirement to remit those funds.

http://osc.state.ny.us/audits/allaudits/093016/14s62.pdf

NYS Health Insurance Program – Empire BlueCross BlueShield – Selected Payments for Selected Items Follow-Up F-21

An initial audit issued in December 2013, found that Empire did not have adequate controls to ensure special items were paid according to contract provisions. As a result, from January 1, 2012through June 30, 2012, Empire made a net overpayment of $391,894 on 81 claims for special items. In a follow-up, auditors found Empire made considerable progress in implementing the recommendations made in the initial audit report, which included recovering $368,917 in overpayments.

http://osc.state.ny.us/audits/allaudits/093016/15f21.pdf

NYS Health Insurance Program – Empire BlueCross BlueShield – Selected Payments for Selected Items Follow-Up F-22

During the six-month period July 1, 2012through December 31, 2012, Empire made a net overpayment of $898,541 on 96 claims from hospitals that had contracts with Empire that limited the amounts that should have been charged for special items. In a follow-up, auditors found Empire officials made considerable progress in implementing the recommendations made in our initial audit report, which included recovering $639,896 in overpayments.

http://osc.state.ny.us/audits/allaudits/093016/15f22.pdf

 
Department of Health – Medicaid Overpayments

Medicaid made $1.6 million in actual overpayments and up to $5.3 million in potential overpayments because separate payments were made for recipients transferred among merged or consolidated facilities. Since the recipients were transferred between merged or consolidated facilities only one payment should have been made. DOH did not enforce their regulations regarding Medicaid reimbursements for hospital transfer claims among merged or consolidate facilities. Further, DOH lacks an automated mechanism to identify merged hospitals and, as a result, it cannot readily detect or prevent inappropriate payments for inpatient transfers among these facilities.

http://osc.state.ny.us/audits/allaudits/093016/14s18.pdf

Special Education Services Audits

In 2013, the state enacted legislation requiring the Comptroller to audit the expenses reported to the State Education Department by every program provider of special education services for preschool children with disabilities at least once by March 31, 2018. On January 15, 2016, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued:

Mid Island Therapy Associates; Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2013, auditors identified $655,055 in reported costs that did not comply with SED requirements and recommend such costs be disallowed. These ineligible costs included $621,191 in personal service costs and $33,864 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14s40.pdf

Kew Gardens SEP Inc.; Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2013, auditors identified $295,997 in reported costs that did not comply with SED requirements and recommend such costs be disallowed. The ineligible costs included $283,649 in personal service costs and $12,348 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14s63.pdf

Just Kids Early Childhood Learning Center, Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2014, auditors identified $417,994 in reported costs that did not comply with SED requirements and recommend such costs be disallowed. These ineligible costs included $229,117 in personal service costs and $188,877 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/15s13.pdf

Words ‘N Motion Special Education Programs, Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2013, auditors identified $135,174 in reported costs that did not comply with the Manual’s requirements, and we recommend such costs be disallowed. The ineligible costs included $64,790 in personal service costs and $70,384 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14s72.pdf

Kid’s-Centric, Inc., Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2013, auditors identified $301,601 in reported costs that did not comply with Manual requirements and recommend such costs be disallowed. These ineligible costs included $139,267 in personal services costs and $162,334 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14s73.pdf

United Community Service, Inc., Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2014, we identified $207,295 in reported costs that did not comply with the Manual’s requirements and recommend such costs be disallowed. These ineligible costs included $154,991 in personal service costs and $52,304 in other than personal service costs, as follows:

http://osc.state.ny.us/audits/allaudits/093016/15s44.pdf

Orange County Cerebral Palsy Association, Compliance with Reimbursable Cost Manual
For the fiscal year ended June 30, 2013, Inspire claimed $226,382 in ineligible costs for its six rate-based preschool special education programs, including $149,768 in personal service costs and $76,614 in other than personal service costs.

http://osc.state.ny.us/audits/allaudits/093016/14s80.pdf

Newmeadow, Compliance with Reimbursable Cost Manual
For the fiscal year ended June 30, 2014, auditors identified $12,059 in costs charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $3,897 in personal service costs and $8,162 in other-than-personal-service costs. Auditors also found unreported less-than-arm’s-length relationships that Newmeadow should have disclosed.

http://osc.state.ny.us/audits/allaudits/093016/15s48.pdf

Story Place Preschool, Inc., Compliance with Reimbursable Cost Manual
For the year ended June 30, 2014, auditors determined Story Place reported $5,150 in personal service costs that did not comply with SED’s requirements for reimbursement.

http://osc.state.ny.us/audits/allaudits/093016/15s69.pdf

Rivendell School, Compliance with Reimbursable Cost Manual
For the three fiscal years ended June 30, 2014, auditors identified $536,449 in reported costs that did not comply with SED requirements and recommend such costs be disallowed. These ineligible costs included $70,644 in personal service costs and $465,805 in other than personal service costs. http://osc.state.ny.us/audits/allaudits/093016/15s25.pdf

  

Municipal Audits

Town of Elmira – Financial Condition

http://www.osc.state.ny.us/localgov/audits/towns/2016/elmira.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216arelease

Town of Hunter – Cash receipts and Board oversight

http://www.osc.state.ny.us/localgov/audits/villages/2016/hunter.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216arelease

Town of Irvington – Selected financial activities

http://www.osc.state.ny.us/localgov/audits/villages/2016/irvington.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216arelease

Long Island Workforce Housing – Local Governments compliance with the Act

http://www.osc.state.ny.us/localgov/audits/swr/2016/longislandworkforce/global.htm?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216arelease

Syracuse Industrial Development Agency – Project Approval and Monitoring and Administration of the Development Fund

http://www.osc.state.ny.us/localgov/audits/ida/2016/syracuseida.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216arelease

School Audits

 

Inlet Common School District – Claims auditing

http://www.osc.state.ny.us/localgov/audits/schools/2016/inlet.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

Lockport City School District – Monitoring transportation contracts and costs

http://www.osc.state.ny.us/localgov/audits/schools/2016/lockportcity.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

Morris Central School District – Financial operations

http://www.osc.state.ny.us/localgov/audits/schools/2016/morris.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

Putnam Central School District – Budgeting

http://www.osc.state.ny.us/localgov/audits/schools/2016/putnam.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

Springville-Griffith Institute Central School District– Financial Management

http://www.osc.state.ny.us/localgov/audits/schools/2016/springvillegriffith.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

Three Village Central School District– Fuel inventories

http://www.osc.state.ny.us/localgov/audits/schools/2016/threevillage.pdf?utm_source=weeklynews20160117&utm_medium=email&utm_campaign=011216release

 

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Gilles v DiNapoli, 2015 NY Slip Op 09342, Appellate Division, Third Department

Peter Gilles, a member of the Town of Greenburgh Police Department, received overtime pay for occasionally volunteering to work “special-duty details.” These special-duty details involved police services provided to private entities that paid the Town for such services.

Upon his retirement, the New York Stateand Local Retirement System notified Gilles that the compensation he received for such special-duty detail services would not be included in determining his final average salary for retirement allowance purposes.

Gilles objected and a hearing was held. The Hearing Officer ruled that Gillles’ compensation for working on special-duty details would not be included in determining his final average salary.

The Comptroller affirmed the Hearing Officer’s determination stating, in part, that Gilleshad "failed to sustain his burden of proving that he [was] eligible to have included in the calculation of his final average salary those payments received for services rendered to private entities and for which the employer [was] reimbursed by the private entities."

Stated another way, the Comptroller concluded that that Gilles did not provide services to the police department while he was on such special-duty details.

Gilles then filed a petition pursuant to CPLR Article 78 challenging the Comptroller's determination.

The Appellate Division rejected Gilles’ appeal noting that “The relevant issues [in Gilles] are the same as in [its] recently decided case of Matter of Tamucci v DiNapoli (133 AD3d 960 [2015]), and, for the reasons set forth therein, [it] confirm” the Comptrollers decision.

NYPPL’s summary of the Tamucci decision is posted on the Internet at http://publicpersonnellaw.blogspot.com/2015/11/overtime-paid-to-police-officer-for.html

In that posting it was noted that an off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement benefits.

Further, a police officer off-duty and working for a private employer may not be eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer.

The Disability Benefits E-book – 2016 Edition This electronic handbook addresses similar situations. For more information click on http://section207.blogspot.com/

The Tamucci decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08027.htm 

The Gilles decision is posted on the Internet at:
 http://www.nycourts.gov/reporter/3dseries/2015/2015_09342.htm

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Comptroller has the exclusive authority to weigh the evidence and credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Comptroller has the exclusive authority to weigh the evidence and credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Sugrue v New York State Comptroller, 2015 NY Slip Op 09595, Appellate Division, Third Department

Michael G. Sugrue, a correction officer, suffered injuries at work and applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15.

Sugrue claimed that he was permanently incapacitated from performing his job duties as the result of injuries he suffered to his right shoulder, his right wrist and middle fingers of his right hand. Following a hearing, the Hearing Officer found that Sugrue failed to establish that he was permanently incapacitated from performing his job duties.

The State Comptroller adopted the Hearing Officer's findings and denied Sugrue’s application for accidental disability retirement benefits and Sugrue filed an Article 78 petition seeking to have the court vacate the Comptroller’s determination.

Sugrue’s medical expert witness, a neurologist, opined that Sugrue was permanently disabled from the performance of his job duties “due to a median nerve injury at the right wrist, evidenced by positive Phalen's maneuver and Tinel's sign test results, an inability to flex and extend the first three fingers of his right hand and right carpal tunnel syndrome, finding that carpal tunnel surgery performed on petitioner was unsuccessful.”

On the other hand, the Retirement System’s medical expert, an orthopedic surgeon, found that Sugrue “had full range of motion of his shoulder, right wrist and fingers and concluded that [Sugrue’s] carpal tunnel syndrome was treated successfully and had resolved.”

Based on his findings, the System’s expert opined that Sugrue was not permanently disabled from performing the duties of a correction officer. The Appellate Division also noted that the System’s expert performed an independent medical examination of Sugrue and concluded that “based upon negative Phalen's maneuver and Tinel's sign test results, [Sugrue’s] range of motion and a lack of swelling of the wrist, that no further treatment to petitioner's right wrist was necessary.”

The Appellate Division confirmed the Comptroller’s decision, explaining that Sugrue bore the burden of establishing that he was permanently incapacitated from performing his job duties. "Where, as here, there is conflicting medical evidence, the Comptroller is vested with the exclusive authority to weigh such evidence and credit the opinion of one medical expert over another."

The court said that inasmuch as the Retirement System’s expert offered a rational, fact-based opinion based upon a physical examination and a review of Sugrue's medical records, the Comptroller's denial of benefits is supported by substantial evidence and will not be disturbed, despite the existence of other evidence to support a contrary conclusion.

The court then turned to Sugrue’s remaining claims, including his claim that the Hearing Officer should have recused himself, and “found to be without merit.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09595.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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