Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On December 7, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

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

Village of Schaghticoke – Board Oversight (Rensselaer County)

The board did not provide adequate oversight of financial operations. As a result, the board cannot be sure it has accurate financial information to make decisions and gauge the village’s financial condition. The board did not establish controls or other oversight procedures to compensate for the clerk-treasurer performing all functions of the financial and recordkeeping duties or audit the clerk-treasurer’s records and reports for the fiscal year ending May 31, 2022.

 

Putnam/Northern Westchester Board of Cooperative Educational Services (BOCES)

The board did not always ensure non-instructional employee overtime was properly monitored, approved or calculated. The 15 highest overtime earners received overtime totaling $254,820 during the audit period. A review determined BOCES officials may have been able to reduce overtime by up to $28,337, or almost 11%. BOCES officials paid a total of $66,295 to 13 employees for work on Saturdays that included $22,091 additional pay for working overtime. However, the BOCES Classified Employees’ Association collective bargaining agreement supports a Tuesday through Saturday work week. Therefore, this overtime may have been avoided if some employees worked Tuesday through Saturday instead.

 

City of Newburgh – Budget Review (Orange County)

The city’s use of approximately $3.4 million of general fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen circumstances. The city has also appropriated approximately $2.5 million of sewer fund balance and appropriated $24,770 of fund balance for the water fund. However, the water fund already has a deficit fund balance of $58,722. In addition, the city should refrain from including the $1.5 million revenue and corresponding expenditures in their 2024 adopted budget for the New York State Touring Route Program because there is no assurance the state will appropriate additional money for this program. Also, the city could potentially face shortfalls based on revenue estimates for sewer usage and sale of metered water and the budgeted overtime funding for police of $1.1 million is likely underestimated by a total of at least $715,000. During the review of the city’s proposed 2024 budget, two conflicting proposed budget documents were posted to the city’s website.

 

Town of Vestal – Former Police Chief’s Separation Agreement (Broome County)

Town officials paid severance payments to the former police chief, totaling $229,251, pursuant to a separation agreement with the town. While the separation agreement included $13,383 for earned, but unused leave accruals, neither the board or other town officials were able to provide any additional written documentation to support the town’s decision to pay the additional $215,868 in severance payments. 

 

City of Salamanca – Employee Benefits (Cattaraugus County)

Separation payments were not properly authorized, adequately supported or accurately calculated. This resulted in unsupported and possibly improper payments being made. Of the 23 separation payments made between April 1, 2020 and Oct. 31, 2022, to 18 employees, totaling approximately $306,000,  seven payments totaling approximately $13,400 did not have adequate support and six additional payments totaling approximately $6,800 included leave balances that were not authorized to be paid at separation. This included $3,400 paid to one employee that did not leave city employment. In addition, one payment totaling approximately $45,000 was based on more than nine years’ worth of leave accrual records.

 

City of Salamanca – City Comptroller’s Financial Reports (Cattaraugus County)

The former comptroller used improper accounting practices and did not complete timely and accurate annual and monthly financial reports. As a result, the council did not have accurate and up-to-date financial information when making significant financial decisions. Fiscal year-ending 2021 general fund cash was overstated by approximately $330,000 and annual financial reports for 2018 through 2021 were not filed until after the resignation of the former comptroller. The longest overdue report was more than four years past its due date and monthly financial reports included erroneous reporting of revenue and expenditures. In addition, the mayor and council did not ensure annual reports were accurate and submitted in a timely manner. Monthly financial reports were inaccurate because the former comptroller was using improper accounting practices that the council did not detect.

 

Town of Colesville – Procurement (Broome County)

Officials did not always use a competitive process when purchasing goods or services and some officials were unfamiliar with the town’s procurement policy requirements. Of the 28 purchases reviewed totaling $1.2 million, officials did not properly seek competition for three purchases totaling $170,575.

 

St. Lawrence-Lewis Board of Cooperative Educational Services (BOCES) – Capital Assets  

BOCES officials did not properly monitor and account for Information Technology (IT) assets. As a result, officials cannot ensure that assets are in BOCES’ possession and protected against loss or unauthorized use. Officials did not maintain accurate and up-to-date inventory records, affix identification tags to all assets, periodically conduct physical inventories, and ensure sensitive data was erased before assets with hard drives were disposed of. Sixty-nine out of 140 recorded IT assets could not be located. Also, 30 out of 95 assets on hand were not listed in the inventory records. In addition, none of the 39 IT assets purchased and placed in service during the 2022-23 school year were added to the inventory records and none of the 25 computer disposals tested had evidence that the hard drives were sanitized prior to disposal. Furthermore, 11 other computers were sanitized and disposed of but were still active in the inventory records. The inventory records also did not always show the proper location of IT assets and sometimes were missing key information such as serial numbers, locations, purchase dates and costs.

 

Tonawanda City School District – Procurement (Erie County)

The board and district officials did not always use a competitive process to procure goods and services. As a result, they did not comply with district policies or state law and may have paid more than necessary for goods and services. The board and district officials procured 167 interactive panels for $684,132 without obtaining competitive bids and did not obtain quotes or request proposals in accordance with district policies for 23 purchases totaling $102,378.

 

Village of Greene – Investment Program (Chenango County)

Village officials developed a comprehensive investment program but did not effectively manage the program. During the 22-month audit period, the village earned approximately $5,800 from money on deposit in the village’s checking and savings accounts, which had an average daily balance of approximately $3.7 million. Had officials considered other legally permissible investment options, the village may have earned approximately $96,900. Officials also did not prepare monthly cash flow forecasts to estimate funds available for investment or monitor investments and did not formally solicit interest rate quotes or consider other legally permissible investment options.

 

Dobbs Ferry Union Free School District – Facilities Department Overtime (Westchester County)

District officials did not properly approve and monitor overtime worked by employees. As a result, employees may have worked unnecessary overtime. Officials paid 10 employees $198,716 in overtime for emergency, non-emergency and absenteeism during the 21-month audit period. Approximately $186,330 of overtime work to be performed was not properly approved. Officials paid 10 employees a total of $36,734 in overtime to conduct 270 building checks. However, officials lacked the required building check forms to support that 267 checks were performed, and officials did not follow up with the employees to confirm the checks were conducted. While the overtime costs for the audit period examined accounted for 24% of department employees’ total compensation, officials did not perform a cost benefit analysis or determine other options that may have reduced overtime.

 

University Preparatory Charter School for Young Men – Payroll (Monroe County)

School officials did not always accurately compensate employees or require adequate support for hours worked as payroll errors went undetected and resulted in unnecessary and erroneous payments. Auditors reviewed policies and documents and examined payroll-related records for 25 of the 138 individuals employed by the school and determined that officials lacked records to support compensation totaling $18,527 paid to three hourly employees and twelve employees received pay that was not consistent with their employment agreements, authorized pay rates or board policy resulting in compensation errors totaling $5,188. Officials also could not support they provided sufficient information for the board to perform its oversight duties or ensure that the chief executive officer authorized salaries within the board-approved range. In addition, officials did not adequately segregate payroll duties or establish sufficient compensating controls, which could allow other discrepancies to occur.

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Application to reopen a matter earlier adjudicated by the Commissioner of Education

In this appeal to the Commissioner of Education the Petitioner sought to reopen Application of Rickson, 63 Ed Dept Rep, Decision No. 18,347, which denied her application to remove certain school officers and employees from their positions with the Albany-Schoharie-Schenectady-Saratoga Board of Cooperative Educational Services.

The Commissioner denied the Petitioner's application to reopen Commissioner's Decision No, 18,347, explaining Petitioner "has not established grounds to reopen the underlying decision in accordance with the standard set forth in 8 NYCRR 276.8".

Click HERE to read more.

 

Plaintiff's tort claims, claims of violations of the New York City Human Rights Law and allegations that he was forced him to retire from his position dismissed

Plaintiff, a former detective with the New York City Police Department [NYPD], commenced this action against the defendants [Defendants] alleging a number of tort claims and claims under the New York City Human Rights Law and alleged that Defendants' conduct forced him to retire from the NYPD.

Citing General Municipal Law §50-e and Umeh v New York City Health & Hosps. Corp., 205 AD3d 599, the Appellate Division held that Plaintiff's tort claims were properly dismissed as untimely as he failed to file a notice of claim within 90 days of their accrual.

In contrast, the Appellate Division held that Plaintiff "has sufficiently alleged that Defendants failed to accommodate his disability under the New York City Human Rights Law in that his complaint alleges that Defendants were aware of Plaintiff's medical problems after his being hospitalized for COVID-19, but failed to engage him in a good-faith interactive process to assess his needs and consider his request to work from home.

These allegations, said the court, coupled with his allegation that he would have continued working if his request for reasonable accommodation was granted, are sufficient to state a cognizable claim for failure to accommodate his disability under the City's Human Rights Law.

Notwithstanding this, the Appellate Division held that Plaintiff's discrimination claim was properly dismissed, explaining "the complaint fails to allege that 'Plaintiff' was 'treated less well' or 'disadvantaged' because of his disability".

Addressing Plaintiff's retaliation claim, the court said "vague, generalized complaints" about a NYPD physician's treatment of him to an unspecified person or authority do not constitute protected activity nor did Plaintiff allege facts showing that Defendants "took an action that disadvantaged [him]" after his complaining about alleged discriminatory conduct.

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

 

Seeking a recount of the results of a school board election

Petitioner, an unsuccessful candidate for one of five open board seat, sought a vote recount, the voiding of board actions taken after the election if appropriate and the revision of the school district's policies relating to board elections.

The Commissioner held that the appeal must be dismissed for failure to join necessary parties as any person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. In an appeal regarding a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.

However, said the Commissioner of Education, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The Commissioner explained that "To invalidate the results of a school district election, the petitioner must either:  (1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or (2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law".

In contrast, the Commissioner noted that "It is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results, citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947 and  Appeal of Dodson, et al., 54 id., Decision No. 16,764).

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In addition, opined the Commissioner, Petitioner has not established that school district violated any legal requirement or that the act of which she complains affected the outcome of the election.

As to Petitioner’s argument is that the school district improperly failed to advise her of her right to observe the opening of absentee ballots on the evening of the election, the Commissioner viewed this argument is unavailing as the school district had submitted an affidavit from its district clerk asserting that the public was, in fact, invited to observe the opening and the tallying of absentee ballots on the evening of the election and that “numerous” observers did so.  

In any event, even assuming that the school district had not extended this invitation, the Commissioner noted it has been previously held that there is no requirement that absentee ballots be opened in the presence of the candidate or their representatives, citing Appeal of Jarmond, 56 Ed Dept Rep, Decision No. 17,108 and Appeal of Georges, 45 id. 453, Decision No. 15,380.

In sum, the Commissioner found Petitioner has failed to meet her burden of proof to establish that there were voting irregularities that affected the outcome of the election. 

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

 

New York State Workers’ Compensation Board webinar series for workers and their advocates

New York State Workers’ Compensation Board continues to offer its webinar its webinar series for workers and their advocates. Workers’ Comp 202: Best Practices to Access Benefits for Workers, A presentation by the Office of the Advocate for Injured Workers, webinars is currently scheduled to be held on Wednesday, December 13, 2023.

The sessions are free and time for questions will be provided.

Wednesday, December 13, 2023
10:00 A.M. - 11:30 A.M.
Register here

Topics include:

• Understanding labor market attachment
• Details on benefit periods and how benefit rates are calculated
• The importance of items such as the degree of disability and the Carrier Continue Payments (CCP) order
• How advocates can help workers and comply with privacy provisions
• The Workers’ Compensation Board’s New York Medical Treatment Guidelines, and more!

 

Employee required to demonstrate his objection to receiving COVID-19 vaccines is based on a sincerely held religious belief

In this challenge to a denial of the employee's [Petitioner] request for a religious exemption from the COVID-19 vaccination requirement for employees of the City of New York, brought pursuant to CPLR Article 78, the Appellate Division unanimously affirmed the Citywide Panel's determination denying the Petitioner's application for the exemption.

The court said the Petitioner had failed to demonstrate that the Citywide Panel's determination was arbitrary and capricious or made in violation of lawful procedure as the Citywide Panel had a rational basis for denying Petitioner's administrative appeal from the denial of his application for a religious exemption from the vaccination requirement, based on the Citywide Panel's findings that: Petitioner:

1. Petitioner failed to establish that his objection to receiving any of the COVID-19 vaccines was based on a sincerely held religious belief, given that he "had no demonstrated history of refusing medications or vaccines" other than declining to receive flu vaccinations for unspecified reasons; and 

2. Petitioner failed to address whether he had "avoided any other vaccines or medications based on the same objection he raised to the COVID-19 vaccines". 

Citing Matter of Marsteller v City of New York, 217 AD3d 543, the Appellate Division noted "It is not dispositive that the Citywide Panel's determination did not set forth any reasoning; a member of the Panel clarified the basis for the determination in an affirmation submitted in the article 78 proceeding".

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

 

 

New York State's Freedom of Information Law [FOIL] as amended does not limit disclosures

The New York State Legislature repealed Civil Rights Law §50-a* and amended the Freedom of Information Law [FOIL] relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure effective June 12, 2020,.**

Addressing an appeal by Petitioner in a proceeding pursuant to CPLR Article 78 to compel the production of certain records pursuant to FOIL, the Appellate Division noted that Supreme Court's judgment, insofar as appealed from, denied branches of the petition which were to compel the production of the records sought in three Freedom of Information Law requests and, in effect, dismissed that portion of the proceeding.

As to the three FOIL requests at issue in this action, NCPD had withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an "unwarranted invasion of personal privacy" pursuant to Public Officers Law §87(2)(b).

The Appellate Division opined that "records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law §87(2), as mandated by §87(4-a), or as permitted by §87(4-b).

The Appellate Division observed that "By their nature, FOIL requests seek records that were generated prior to the request date." In amending the Public Officers Law to provide for the disclosure of records relating to law enforcement disciplinary proceedings, "the Legislature did not limit disclosure under FOIL to records generated after June 12, 2020, and we will not impose such a limitation ourselves", citing Matter of Friedman v Rice, 30 NY3d at 478.***

* The former Civil Rights Law §50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct. See Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556).

** See Chapter 96 of the Laws of 2020.

*** There are statutory prohibitions to public disclosure of certain public records. Education Law, §1127 - [Confidentiality of records] and §33.13, Mental Hygiene Law [Clinical records; confidentiality] are examples of such statutory limitations. 

Click HERE to access the full text of the Appellate Division's analysis and decision posted on the Internet.