Local Government Audits posted on the Internet by New York State Comptroller Thomas P. DiNapoli

On March 19, 2025, New York State Comptroller Thomas P. DiNapoli issued the following local government audits:

Click on the text highlighted in color to access the full report posted on the Internet.

Village of Herkimer – Clerk-Treasurer’s Records and Reports (Herkimer County) The current and former clerk-treasurers did not maintain complete, accurate or up-to-date financial records. As a result, the board lacked the financial information necessary to properly monitor and manage village finances. The clerk-treasurers did not properly record financial activity totaling $10.5 million related to bank transfers, payroll, real property taxes and cash receipts and disbursements. They did not perform bank reconciliations, allowing discrepancies between general ledger cash balances and adjusted bank balances to remain unidentified and unresolved. They did not provide monthly balance sheet reports to the board or file Annual Financial Reports with the Office of the State Comptroller, as required by law. The board did not annually audit the clerk-treasurers’ records, as required by law.

Town of Ripley – Town Clerk Collections (Chautauqua County) The town clerk did not always record, deposit, remit and report all collections in a timely and accurate manner. Because of this, there was an increased risk for money to be lost or used for inappropriate purposes. The longer collections remain unremitted, the longer they are not available for town operations. The audit determined the clerk did not deposit 2023 tax collections totaling approximately $882,000 within 24 hours or record 2023 tax collections totaling approximately $560,000 daily as required. The board did not conduct an annual audit of the clerk’s records, as required.

Town of Elbridge – Payroll and Leave Accruals (Onondaga County) Town officials did not ensure that all payroll payments were accurate, supported and authorized and that leave accrual records were maintained accurately. Auditors determined that the town supervisor approved payroll without having any information regarding the numbers of hours that employees worked, the leave time that they used or their leave accrual balances. Also, staff were unaware of all the provisions of the collective bargaining agreement and the town’s employee handbook that affect leave accrual records. The handbook did not require salaried employees to prepare time sheets or timecards. As a result, seven full-time employees with 2024 salaries totaling $238,569 did not prepare time records to document their days and hours worked and leave accruals that they used.

Wallace Volunteer Fire Department, Inc. – Board Oversight (Steuben County) The department officers and members did not enforce financial provisions outlined in the department’s constitution and bylaws or adopt adequate policies and procedures to provide effective financial oversight of operations. The membership did not elect a five-member board or financial secretary and the president did not appoint members to the auditing committee to assist with financial oversight. The treasurer did not submit various annual reports as required, and did not have a system for recording all receipts and disbursements. The president had sole control of the foreign fire insurance bank account instead of the treasurer, as required by law. These actions result in an increased risk of theft and waste of department resources.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review assessed the town’s progress in implementing recommendations in the town’s prior audit report (2019M-189), released in January 2020. The audit found the supervisor did not maintain accurate financial records. The audit included seven recommendations to help improve the quality of financial records and reports. The audit follow-up found that town officials have not taken corrective action, as none of the seven audit recommendations were implemented.

Town of Dayton – Audit Follow-Up (Cattaraugus County) The review examined the town’s progress in acting on recommendations from another audit report examining the town’s fund balance management (2019M-221) released in January 2020. The prior audit determined the board did not properly manage fund balance, as the town-wide (TW) general fund and TW highway fund had deficit unrestricted fund balances. The prior audit also determined that the board did not develop and adopt comprehensive written multiyear financial and capital plans and written fund balance and reserve fund policies to help guide the budget development process. The audit included nine recommendations to help improve the town’s financial condition and financial reporting. It appears that the town has not implemented sufficient corrective action. The audit follow-up found that of the nine audit recommendations, only two were fully implemented and seven were not implemented.

Administrative Law Judge recommends a 45 day suspension without pay be imposed on an employee found guilty of storing and discharging an air rifle in a City of New York's building

New York City Office of Administrative Hearings and Trials Administrative Law Judge [ALJ] Faye Lewis recommended a 45-day suspension without pay as the penalty to be imposed on custodial engineer [Respondent] found guilty of storing an air rifle in a Department of Education warehouse building and fired it in the trucking bays of the warehouse on a Saturday when no one else was in the building. Respondent did not deny this allegation and testified that he brought the air rifle into the building and fired it on one occasion for the sole purpose of scaring away pigeons that had been roosting in the bay areas of the building, defecating on plastic wrapped pellets of food trays that were distributed to schools, and disturbing asbestos installation on the pipes. 

The ALJ found Respondent’s testimony to be clear, consistent, unrebutted, and corroborated by documentary evidence, such as emails and photographs documenting the significant health concerns posed by the pigeons. While the ALJ found that Respondent’s use of the air rifle was well-intentioned, she concluded that the storage and firing of the air rifle constituted misconduct as it showed poor judgment and was contrary to well-known standards of conduct. 

The ALJ dismissed the remaining charges against Respondent for storing alcohol and parking his motorcycle on petitioner’s property because the Petitioner [Employer] failed to produce sufficient evidence linking Respondent to the alcohol and failed to establish that parking his motorcycle constituted misconduct. 

Lastly, the ALJ dismissed a charge relating to the transfer or sale of Department property as time-barred. The ALJ rejected Employer’s argument that Respondent should be terminated for this misconduct, noting that there was significant mitigation underlying Respondent’s actions and that he has had a lengthy tenure with the Employer with high performance evaluations and no history of discipline. 

Accordingly, the ALJ recommended a 45-day suspension with credit for a 30-day pretrial suspension served. 

Click HERE to access Judge Lewis' decision posted on the Internet.

Enforcing the terms and conditions set out in a collective bargaining agreement beyond the grievance process.

State and municipal public employees in New York State have the right to negotiate terms and conditions of employment which are typically set out in a collective bargaining agreement [CBA]* pursuant to Article 14 of the Civil Service Law [typically referred to as "The Taylor Law]. Such individuals may also have rights provided by statute or regulation. 

Typically the collective bargaining agreement contains a mandatory grievance process the CBA and rarely provides employees with the authority to enforce the terms and conditions set out in the CBA beyond the negotiated grievance process.*

In this decision the Appellate Division pointed out that "Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed grievance procedure and initiate litigation involving a  contract issue directly against the employer".

Citing Matter of Obot [New York State Dept. of Correctional Services], 89 NY2d 883, the Appellate Division noted that allegations that an employer has breached the collective bargaining agreement are contract claims that may not be resolved in an Article 78 proceeding as "the proper mechanism is initiating a plenary action alleging both breach of contract by the employer and breach of the duty of fair representation by the union". In the words of the Appellate Division: As the employee's claim arises solely under the CBA, the employee was also required to follow the path laid out in the Appellate Division's decision in Ambach**

* On occasion such an agreement may issued in the form of a Memorandum of Understanding.

** Ed. Note: However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of administrative remedies is not required where so doing would constitute "an exercise in futility".

Click HERE to access the Appellate Division's decision.

Counting Provisional Service Towards Time-in-Title Requirements

The New York State Department of Civil Service has published General Information Bulletin 25-01, Provisional Service Counting Towards Time-in-Title Requirements for Promotion Once Permanently Appointed.

The text of General Information Bulletin 25-01 is posted on the Internet at GIB 25-01. 

A version of Bulletin 25-01 in PDF format is available for downloading at GIB 25-01 PDF.

To view previous General Information Bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/gibs.cfm. N.B. Replies to this URL will not be read or answered.

The placement of unvaccinated COVID-19 bargaining unit members on leave without pay held not to be arbitrable

Supreme Court denied an employee organization's [Union] petition seeking to annul a determination by the New York City Board of Collective Bargaining [BCB] that a Union member's grievance was not arbitrable in part and dismissed this proceeding brought pursuant to CPLR Article 78.

Union had sought to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. 

BCB had determined that although certain issues asserted in the Union's petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay was not arbitrable.

The Appellate Division unanimously affirmed the Supreme Court's BCB's ruling without costs, opining that "BCB's finding regarding the arbitrability of issues relating to placement on Leave Without Pay [LWOP] was not arbitrary and capricious or contrary to law. The Appellate Division also rejected the Union's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the Collective Bargaining Agreement because they were placed on LWOP. 

The Appellate Division's decision is set out below:

Matter of Uniformed Firefighters Assn. of Greater N.Y. Local 94, IAFF, AFL-CIO v City of New York

2025 NY Slip Op 01596

Decided on March 18, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 18, 2025
Before: Moulton, J.P., Kennedy, Rodriguez, Pitt-Burke, O'Neill Levy, JJ.

Index No. 159305/22|Appeal No. 3929|Case No. 2024-01024|

[*1]In the Matter of Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO, Petitioner-Appellant,

v

The City of New York et al., Respondents-Respondents.

Certilman Balin Adler & Hyman, LLP, East Meadow (Paul S. Linzer and Jennifer A. Bentley of counsel), for appellant.

Muriel Goode-Trufant, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for The City of New York and The Fire Department of the City of New York, respondents.

New York City of Collective Bargaining, New York (Brian Zapert of counsel), for the New York City Board of Collective Bargaining, respondent.

Order and judgment (one paper), Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about January 16, 2024, which denied the petition to annul the September 28, 2022 determination of respondent The New York City Board of Collective Bargaining (BCB) that petitioner's grievance was not arbitrable in part, and dismissed this proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

This proceeding arises from the attempt by petitioner Uniformed Firefighters Association of Greater New York Local 94, IAFF, AFL-CIO (UFA), to arbitrate the consequences of certain of its members' failure to comply with the COVID-19 vaccine mandate applicable to New York City employees. As relevant to this appeal, the BCB found that although certain issues asserted in the petition were arbitrable, issues concerning the placement of unvaccinated bargaining unit members on leave without pay (LWOP) were not arbitrable. 

BCB's finding regarding the arbitrability of issues relating to placement on LWOP was not arbitrary and capricious or contrary to law (see CPLR 7803[3]; Administrative Code of City of NY § 12-309[a][3]); Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650, 656 [1996]; Matter of Pell v Board of Educ. 0f Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Under the two-pronged test to determine whether a dispute is arbitrable pursuant to Court of Appeals precedent, the BCB must first determine whether the parties may arbitrate the dispute by inquiring if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnston Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). If there is a prohibition, the inquiry ends and an arbitrator cannot act. If no prohibition exists, as was the case here, the BCB then examines the parties' collective bargaining agreement (CBA) to determine whether the parties in fact agreed to arbitrate the particular dispute (see id.; see also MacDonald, 87 NY2d at 655-656). The Board rationally found, under the second prong, that there was no "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 283 [2010][citation omitted]).

We reject petitioner's argument that its members who failed to comply with the citywide vaccine mandate were deprived of rights under the regulations of respondent the Fire Department of the City of New York (FDNY). The cited regulation, FDNY regulation § 17.5.1, simply requires employees who want permission to go on special leaves of absence to apply in writing and explain the reasons for their request. It does not prohibit the FDNY from imposing leave in other circumstances, such as where these members fail to satisfy a condition of employment, nor does it address the FDNY's ability [*2]to do so (see Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 42 NY3d 986, 990-991 [2024]).

We also reject petitioner's assertion that its unvaccinated members were deprived of their rights to salary and related remuneration under the CBA because they were placed on LWOP. These members' failure to satisfy a condition of employment necessarily renders them unqualified for their position (see id.; Garland v New York City Fire Dept., 574 F Supp 3d 120, 129 [ED NY 2021]; see also We the Patriots USA, Inc. v Hochul, 17 F4th 266, 294 [2d Cir 2021], clarified 17 F4th 368 [2d Cir 2021], cert denied sub nom. Dr. A. v Hochul, — US &mdash, 142 S Ct 2569 [2022]). Therefore, it was not irrational for the Board to find that petitioner identified no right "to the continuation of contractual pay and benefits under these circumstances." On appeal, petitioner identifies no CBA provision that would allow its members to continue being paid for services not rendered upon their failure to satisfy a condition of employment (see e.g. Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York, 125 AD3d 475, 475-476 [1st Dept 2015]; Matter of City of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859, 860 [3d Dept 2005]).

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 18, 2025