New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Division of Housing and Community Renewal (DHCR): Administration of Mitchell-Lama Waiting Lists (2016-S-46)
The majority of sampled new admissions, internal transfers and successions were selected from an automated wait list (AWL) and approved by DHCR. However, in most cases, neither DHCR nor the development maintained the documentation required to confirm that tenants were selected in the order they appeared on the wait list. One development did not request or receive DHCR approval for eight of the nine succession apartments it awarded and granted three apartments to individuals who were not on the AWL. Four of the five developments did not comply with the required 3:1 internal/external ratio when offering apartments to applicants. As of July 31, 2016, one development had 51 vacant units, even though it had applicants on its internal and external AWLs. Ten of these units were vacant for as long as five years.

Department of Labor (DOL): Examination of Unemployment Insurance Benefits 2016 Annual Report (2017-BSE4-01)
Based on a selection of 57,000 transactions, auditors identified 4,864 overpayments totaling more than $1.6 million. Based on the overpayments identified, DOL assessed $217,290 in monetary penalties to 137 claimants. As the result of the current and prior years’ findings, DOL also recovered $247,483 in forfeited UI benefits from claimants who DOL determined made false statements or representations to obtain benefits to which they were not entitled. Auditors worked with DOL to identify another $238,792 in potential recoveries for past UI overpayments from 130 state employees hired during 2016.

Department of Taxation and Finance: Child and Dependent Care Credit (2017-BSE8-01)
During the period of the examination, the department processed 444,127 returns containing credits totaling $177.1 million. Auditors found it processed 29,102 personal income tax returns for tax year 2015 that contained potentially inappropriate credits valued at $18.3 million.

State Education Department: Adirondack Helping Hands, Inc., Compliance with the Reimbursable Cost Manual (2016-S-88)
For the fiscal year ended June 30, 2014, auditors identified $37,643 in ineligible costs that Adirondack reported for reimbursement for special education programs. The ineligible costs included: $22,215 in other than personal service costs that consisted and $15,428 in excess personal service costs.

New York State Insurance Fund (NYSIF): Incarcerated and Death Matches (2017-SIF)
Auditors examined $1.4 billion in payments for more than 17 million in medical and other service charges the NYSIF made on behalf of nearly 215,000 individuals during the period January 2014 through February 2017. Under state law, any person incarcerated upon conviction of a felony is ineligible for all benefits. NYSIF will not pay for medical and other service charges that occur subsequent to a claimant’s date of death.  Based on the match results and observations of the payment process, auditors concluded NYSIF has established reasonable controls to minimize the risk of improper payments in these areas. 


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:

Town of Barrington – Financial Management 

Village of Homer – Purchasing and Credit Cards

Plattekill Library – Budgeting Practices

Town of Scriba – Board Oversight

Terryville Fire District – Treasurer’s Duties 


Former Town of Minerva Clerk Sentenced to Prison for Embezzling Town Funds
Jordan Green, the former clerk to the supervisor for the town of Minerva, was sentenced in Essex County Court to 1 1/3 to 4 years in state prison and ordered to pay restitution.

Bedford-Stuyvesant is on the Rise
The Bedford-Stuyvesant neighborhood has experienced strong population, business and job growth in recent years, according to a report by New York State Comptroller Thomas P. DiNapoli. 

Comptroller DiNapoli's Proposal to Help Local Governments Negotiate Better Fire Protection Contracts Signed Into Law 
Bill increases transparency relating to the contract negotiation process for fire protection contracts between incorporated fire companies and districts, towns or villages.

 

 

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Subway Surface Supervisors Assn. v New York City Tr. Auth., 2017 NY Slip Op 06444, Appellate Division, Second Department

The Subway Surface Supervisors Association [Association] and the Transit Supervisors Organization, Local 106 [Local 106] both claimed to represent certain New York City Transit Authority employees working at a bus depot [Depot] in Manhattan.

Both employee organizations filed grievances with the employer, the New York City Transit Authority [TA] under their respective collective bargaining agreements. The Association then participated in a mediation effort with Local 106 and the TA, but the mediation effort failed to resolve the conflict.

The Association next filed a "Petition for Unit Clarification and/or Unit Placement" with the New York State Public Employment Relations Board [PERB]. The petition, however, was deemed withdrawn and the matter closed. The Association agreed to arbitrate the dispute and was involved in the selection of the arbitrator.

TA sent a letter to the arbitrator indicating the parties' agreement to submit "to a tri-party arbitration ... to resolve all current disputes between the parties, including jurisdiction and representation issues involving supervisory personnel" related to the Depot. All the parties participated in the initial arbitration hearing after which the arbitrator issued an award dated December 4, 2014.

Subsequently, "by consent of all parties," Association participated in a second arbitration hearing before the arbitrator. The arbitrator issued a supplemental award dated January 29, 2015 and following the issuance of the second arbitration award the Association "participated in three telephone conferences with the arbitrator concerning additional issues that arose between the parties."

The Association then initiated a CPLR Article 75 proceeding seeking a court order vacating the arbitration award dated December 4, 2014 on the grounds that the award "violated public policy considerations embodied in the Taylor Law" [Civil Service Law Article 14] and that the arbitrator had exceeded his power under the collective bargaining agreement between the Association and the TA. The Supreme Court denied the petition and the Association appealed.

The Appellate Division, noting that a party seeking to overturn an arbitration on one or more of the grounds stated in CPLR 7511(b)(1) "bears a heavy burden," and, citing Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, noted that in that action the Court of Appeals indicated it had recognized "three narrow grounds that may form the basis for vacating an arbitrator's award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."  

The Appellate Division decided that the Association failed to meet the "strict standards for overturning arbitration awards on public policy grounds."

The Appellate Division further opined that "under the circumstances of this case, the [Association] waived any argument that the award exceeds a specifically enumerated limitation on the arbitrator's power," concluding that Supreme Court had properly denied the petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06444.htm

Making false entries in an official record

Removal from public office by operation of law

Munroe v Ponte, 2017 NY Slip Op 02041, Appellate Division, Second Department

§30(1)(e)  of the Public Officers Law mandates the automatic removal of the incumbent from his or her public office "by operation of law" in the event he or she is found guilty of a felony or the violation of his or her oath of office. In effect, the public office is deemed vacant automatically upon the public officer's conviction of a felony or a crime involving a violation of his or her oath of office.*

The Commissioner of the New York City Department of Correction [Commissioner] summarily terminated a correction officer [Officer] pursuant to Public Officers Law §30(1)(e) following his conviction of a misdemeanor -- falsifying business records in the second degree. Officer filed an Article 78 action challenging the Commissioner's action. Supreme Court granted the Commissioner's motion to dismiss Officer's petition and Officer appealed.

Officer had been served with disciplinary charges pursuant to Civil Service Law §75 alleging various acts of misconduct included making "false entries in the . . . enhanced security post logbook." Subsequently indicted on a number of criminal charges, including falsifying business records in the second degree and attempted assault in the third degree, he was subsequently convicted of falsifying business records in the second degree in violation of Penal Law §175.05[1].

Advised that he had been terminated pursuant to Public Officers Law §30(1)(e), Officer commenced a CPLR Article 78 proceeding alleging, among other things, that the termination of his employment was arbitrary and capricious.

Pursuant to Public Officers Law § 30(1)(e), an office is deemed vacant upon an officer's "conviction of a felony, or a crime involving a violation of his [or her] oath of office."

The Appellate Division dismissed Officer's appeal, ruling that under the circumstances of this case, the Officer's petition "failed to set forth allegations sufficient to make out a claim that his termination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

Addressing a procedural matter concerning the Commissioner's contention that Officer's Article 78 petition was untimely,  the Appellate Division noted that the four-month statute of limitations did not begin to run when Officer was personally served with a copy of the letter advising him that he had been terminated from his position in accordance with the mandate of §30(1)(e) of the Public Officers Law.

Rather, said the court, as the Commissioner was on notice that Officer had retained counsel to represent him in connection with the disciplinary charges, "once counsel has appeared" the Statute of Limitations or time requirement "cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

*  Police officers and correction officers are "public officers” for the purposes of §30 of the Public Officers Law. Further, in Graham v Coughlin, 72 NY2d 1014, the Court of Appeals upheld the removal of a state correction officer following his conviction of a felony under federal law. The Appellate Division had ruled that Section 30.1(e) applied in cases of the officer’s conviction of a felony under any jurisdiction. Although all public officers are public employees, not all public employees are public officers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02041.htm

The Doctrine of Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

The Doctrine of  Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416, Appellate Division, First Department

Following a number of adverse administrative rulings, Surana Mehulic brought an Article 78 action against her former employer, New York Downtown Hospital [Hospital] alleging it had impermissibly retaliated against her for whistle blowing. Supreme Court dismissed her amended complaint, ruling that Mehulic's retaliation claim under Labor Law §741 "is completely barred by [the doctrine of] collateral estoppel".*

The Appellate Division unanimously reversed the Supreme Court's ruling explaining that with respect to the earlier administrative determinations "there was no express or implied ruling that [Hospital], in terminating Mehulic, "had impermissibly retaliated against her for whistle blowing."

The court explained that the issue of whether the Hospital terminated Mehulic because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding. Accordingly, said the Appellate Division, the issue of alleged retaliation "was not necessarily decided in the prior proceedings."

The earlier proceedings were initiated by the Department of Health's Office of Professional Medical Conduct to determine whether Mehulic, then a not yet licensed second-year medical resident, should be able to pursue a medical license in New York, and under what conditions.

Although, said the Appellate Division, the prior administrative rulings determined that Mehulic had engaged in professional incompetence on three occasions, there was no express or implied ruling that Hospital had terminated Mehulic's employment on the basis of that incompetence, or whether, in terminating her, Hospital had impermissibly retaliated against her for whistle blowing.

Citing Mehulic v State Board of Professional Medical Conduct, 107 AD3d 1066,  appeal dismissed 22 NY3d 911, the Appellate Division ruled that although Mehulic is precluded from relitigating the three instances of incompetence found in the prior proceedings, the Doctrine of Collateral Estoppel does not otherwise bar the litigation of her retaliation claims. Her defense, noted the Appellate Division, to Hospital's prima facieshowing that the "termination of [Mehulic's] employment was predicated upon grounds other than her exercise of any rights under Labor Law," she had "submitted evidence sufficient to raise triable issues of fact."

* §75-b of the Civil Service Law bars retaliatory action by public employers against a public employee for his or her alleged whistle blowing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06416.htm

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 17,166

In this appeal the School District contended, among other things, that the Petitioner's application was untimely, constituted a "class appeal," and that the Petition had not been properly verified. In addition, with respect to Petitioner's reply, the School District claimed that it "should not be considered to the extent it raises new assertions or contains new exhibits."

The School District's objection to a "class appeal"

Addressing the issue of a "class appeal", the Commissioner said Petitioner's attempt to bring this appeal on behalf of individuals who “either reside or own properties within" the School District, such an appeal may only be maintained on behalf of a class where [1] the class is so numerous that joinder of all members is impracticable and [2] where all questions of fact and law are common to all members of the class.

The Commissioner denied class status, explaining that other than identifying the proposed class as residents or property owners within the district, Petitioner’s pleadings did not include any allegations meeting the requirements for a class appeal set out in 8 NYCRR §275.2.  In particular, the Commissioner noted that the Petitioner failed to identify the number of class members and offered no explanation of how all questions of fact and law would be common to all residents and property owners of the School District.

The School District's Objection to the verification of the petition

With respect to the School District 's claim that the petition was not properly verified, the Commissioner, citing 8 NYCRR §275.5[a], said that such a petition must be verified by the oath of a petitioner. However, in this instance the petition had been verified by the attorney for the Petitioner and the attorney was not a party to the appeal. Accordingly, said the Commissioner, the verification was improper.

The School District's objection to the Petitioner's reply

As to the School District's objections with respect to Petitioner's reply, the Commissioner said the Petitioner's “Reply Affidavit” included additional facts and exhibits concerning the School District that were not in the petition.

A reply, said the Commissioner, "is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition." Accordingly, the Commissioner said that she would not considered those portions of the reply that contained "new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer" in her review of Petitioner's reply.

Finally, the Commissioner ruled that the petition was timely but that even had not be dismissed on procedural grounds, "it would be dismissed on the merits."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17166