State Comptroller Dinapoli Releases School Audits

On January 24, 2024, New York State Comptroller Thomas P. DiNapoli announced the following school audits were issued.

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

 

East Aurora Union Free School District – Procurement (Erie County)

The board and district officials did not always procure goods and services in a competitive manner. Officials did not update the procurement policy or ensure that employees followed state law when procuring goods and services. As a result, goods and services were purchased without the benefit of competition, resulting in the increased risk that taxpayer dollars were not expended in the most prudent and economical manner. The board and district officials did not request proposals within the last five years for 43 professional service contracts (91% of contracts audited) totaling $1.8 million and did not obtain competitive pricing or retain documentation to demonstrate quotes were obtained for 48 purchase and public works contracts (100% of contracts audited) totaling $443,734.

 

Holland Patent Central School District – Fuel Inventory (Oneida County)

District officials did not adequately manage and monitor fuel access and usage or account for fuel inventory. As a result, seven enabled fuel user accounts were not needed and authorized transportation department employees completed 117 usage transactions during the audit period by sharing personal identification numbers or vehicle fobs to fuel buses. Officials also did not develop written procedures to help ensure fuel inventories were adequately managed or review fuel usage reports to monitor user access and vehicle fuel use for reasonableness.

 

Brockport Central School District – Financial Management (Monroe County)

From the 2017-18 through 2021-22 fiscal years, the approved budgets made it appear as though the board needed to appropriate fund balance and reserves and increase real property taxes by 13% to close projected budget gaps. However, the district incurred operating surpluses in each of those five years, totaling $20.9 million. The board overestimated appropriations by more than $30 million (8%) and underestimated revenues by a total of $8.7 million (4%). In addition, five reserves had unreasonably high balances totaling $24.5 million that were not needed or used in many years, and the debt reserve in the debt service fund had $700,000 in unidentified money that should be returned to the general fund. The district also did not have comprehensive written reserve reports or plans, or written multiyear financial and capital plans, inhibiting effective financial management.

 

Garrison Union Free School District – Information Technology (IT) (Putnam County)

District officials did not adequately secure the district’s network user accounts, establish physical controls, maintain complete and accurate inventory records for IT equipment or develop an IT contingency plan. In addition to sensitive IT control weaknesses, the district staff did not have sufficient documented guidance or plans to implement following an unexpected IT disruption or disaster. As a result, district officials have an increased risk they may not recover data and resume essential operations in a timely manner. Also, 40 of the 115 enabled nonstudent network user accounts (35%) were no longer needed. Unneeded user accounts could be used to inappropriately access and view personal, private and sensitive information or disable the network. In addition, 10 IT assets, including nine laptops and one printer, were not properly recorded in the district’s inventory listing.

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New York State Comptroller DiNapol reports 16 school districts in fiscal stress for the school year ending June 30, 2023

Sixteen school districts were designated in some level of fiscal stress under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System for the school year ending June 30, 2023. 

In a report posted on the Internet dated January 25, 2024, the Comptroller indicated that the number of school districts currently identified as being in fiscal stress is well below the 33 designated in fiscal stress in 2019. Increased temporary federal aid and growth in state aid have contributed to the declining number of school districts designated in fiscal stress.

Click HERE to access the Comptroller's fiscal stress report on the Internet.

Commissioner of Education asked to conduct an investigation, audit a school district election, terminate certain school district personnel from their postition and reimburse Petitioner her costs in bringing the proceeding

In the appeal to the Commissioner of Education submitted pursuant to pursuant to Education Law §310 Petitioner sought a review of a school district's [BOE] election procedures, the votes cast during the 2023 election (personally or through an independent “auditor”) for the three candidates seeking election to the Board; “open[ing] all 2023 BOE seats for reelection in 2024”; and orders directing the BOE to review its election procedures.  In addition, Petitioner sought the removal of the district clerk, two board members, and reimbursement for her costs in bringing this proceeding.

BOE contended that Petitioner failed to establish any wrongdoing in connection with the election. Further, even assuming that the alleged irregularities occurred, BOE contended "they did not affect the outcome of the election or impugn its fairness."*

The Commissioner ruled that Petitioner's appeal must be dismissed and the application denied.

The Commissioner noted that an appeal to the Commissioner is appellate in nature and does not provide for investigations and that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 , citing Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244 and Application of Kolbmann, 48 id. 370, Decision No. 15,888).  Accordingly, the Commissioner dismissed Petitioner’s requests for an investigation, the appointment of an “auditor,” and financial reimbursement.

As to the merits of Petitioner's efforts to invalidate the results of a school district election, the Commissioner explained that a petitioner seeking the invalidation of a school board election 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.

Noting earlier Decisions of the Commissioner of Education, Commissioner of Education Rosa said "[implicit in those decisions] is a recognition that it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election, citing in particular Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeal of Lanzilotta, 48 id. 428, Decision No. 15,905; and Appeal of Thomas, 47 id. 442, Decision No. 15,748.

Initially, many of the issues of which Petitioner complains are explained by BOE’s utilization of poll registration in lieu of personal registration, noting that in the event "a Board of Education of a district does not adopt personal registration ... any qualified voter[s] of the district may present [themselves] to the meeting and, after [their] name[s] ha[ve] been placed on the poll list, ... cast [a] ballot”.

Significantly the Commissioner indicated that Petitioner "fails to even allege sufficient voter irregularities to affect the outcome of the election" and sets out in her decision the facts supporting BOE explanation of the numerical discrepancies about which [Petitioner] complains such "five voters 'signed the poll book but their barcode[s] [were] not scanned" and due to an oversight, certain voter’s information was not “manually entered into the election software program voter list.”

The Commissioner also addressed the procedure to be followed upon a challenge to a voter’s qualifications set out in Education Law §2019, observing that the record reflects that the BOE complied with this statutory procedure.

Holding that Petitioner has not met her burden of establishing that any election irregularities occurred, "let alone those significant enough to warrant overturning the election", the Commissioner concluded that there was no basis to remove the school officers identified in the caption of the Petitioner's appeal. Further, opined the Commissioner, "A school officer may only be removed based upon a willful violation or neglect of duty under the Education Law or willful disobedience a decision, order, rule, or regulation of the Board of Regents or the Commissioner", citing Education Law §306.

Addressing a final issue, the Commissioner noted that the individual named respondents had requested certification that they acted in good faith pursuant to Education Law §3811(1), which section authorizes a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811(1)."

Pointing out that the Commissioner will issue such a certification unless the record establishes that the requesting respondent acted in bad faith, the Commissioner certified that "for the purpose of Education Law §3811(1) that the individual respondents are entitled to the requested certification" with respect to the instant proceeding.

* Two candidates in the election received 598 and 566 votes respectively while the third candidate, Petitioner, received 351 votes. A request to preserve the ballots in the 2023 election as interim relief was determined to be unnecessary.

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

 

Recent Decisions by New York City Office of Administrative Trials and Hearings' Administrative Law Judges

On January 24, 2024, the New York City Office of Administrative Trials and Hearings [OATH] posted the selected summaries of decisions involving disciplinary actions initiated by the appointing authority issued by OATH Administrative Law Judges set out below.

 

Conduct unbecoming of a member in the service of the New York City Department of Correction

Administrative Law Judge Charlotte E. Davidson recommended termination of employment for a correction officer [Respondent] charged with conduct unbecoming of a member of service and of a nature to bring discredit upon the Department, and undue familiarity with a person in custody.

The ALJ found that Respondent, while escorting a person in custody, permitted him to visit another cell where he obtained contraband. Respondent also permitted the person in custody to violate numerous rules while under her supervision, including touching her on several occasions, repeatedly ignoring her commands, and wearing prohibited clothing.

The ALJ credited the correction officer’s explanation that her behavior was driven by a desire to avoid physical harm to herself but found that Respondent violated the rules against undue familiarity by permitting the person in custody to engage in the misconduct. However, the evidence did not support a finding of repeated interactions in a sexual manner, and the ALJ dismissed a charge related to sexual contact.

The ALJ also found that Respondent inefficiently performed her duties by failing to note infractions in the facility logbook.

Despite respondent’s minimal disciplinary history, the ALJ found that by indulging the inappropriate behavior of a person under her custody, respondent committed misconduct warranting a penalty of termination.

Click HERE to access Judge Davidson's findings and recommendation posted on the Internet.

 

New York City correction officer charged with excessive absences

Administrative Law Judge Julia Davis recommended dismissal of charges served on a correction officer [Respondent] alleging "excessive absences".

Respondent reported sick on approximately 92 days from January 2021 to December 2021, and approximately 114 days from January 2022 to September 2022. Respondent’s August 25, 2021 through June 13, 2022 sick leave was the first time Respondent reported sick for injuries he sustained in a September 11, 2020 use of force incident. Under the Department’s rules, when calculating sick days, an officer’s first absence for a line of duty injury sustained as a direct result of a use of force incident is excluded.

The ALJ rejected the Department’s argument that the first absence must be taken immediately following the use of force incident, finding the Department’s rule does not contain the word “immediately” nor impose any time period. After excluding the sick days from August 25, 2021 to June 13, 2022, the ALJ found the Department  failed to prove Respondent was excessively absent.

Click HERE to access Judge Davis' findings and recommendation posted on the Internet.

 

Discourteous and insubordinate conduct alleged

Administrative Law Judge Michael D. Turilli recommended dismissal of disciplinary charges for served on an administrative procurement analyst [Respondent] employed by the New York City Department of Housing Preservation and Development [Petitioner] charged with discourteous and insubordinate conduct towards his supervisor and failure to satisfactorily perform his work.

The ALJ held that Respondent did not willfully refuse an order to attend a meeting with his supervisors, finding that although Respondent was a few minutes late, he went to the meeting and his supervisors granted his request for a postponement so his union representative could be present.

Although Respondent was argumentative and defensive during the meeting, his conduct did not exceed the bounds of decorum and discretion.

The ALJ also found that Petitioner failed to establish that Respondent was incompetent in the performance of his duties because there was insufficient evidence Respondent persistently fell below the minimally acceptable threshold of time to complete his assignments.

Click HERE to access Judge Turilli's findings and recommendation posted on the Internet.

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Court rejects Petitioner's proposed narrowing of a search for records sought pursuant to New York State's Freedom of Information Law following two refusals to do so

The New York City Department of Education [DOE] denied Petitioner's Freedom of Information Law (FOIL) request on the grounds that it did not seek "a record reasonably described". Supreme Court denied Petition's appeal seeking a court order directing DOE to conduct "an adequate search of responsive records, or in the alternative for a framed issues hearing." The Appellate Division unanimously affirmed the Supreme Court's decision, holding it was not affected by an error of law.

Petitioner sought all emails during a 17-month period between any DOE email address and any email address from a neutral arbitrator's firm. Citing Matter of Puig v New York State Police, 212 AD3d 1025, the Appellate Division said the administrative record and the DOE's affidavits demonstrate "that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search ... [by] name or other reasonable technological effort".

The Appellate Division's decision notes that "DOE maintains over 1 million email mailboxes". When DOE searched its database using the description given by Petitioner, the "system searches never appeared to end during the course of the day, continuing through the next day, then stopping and timing out". 

When Petitioner was twice asked by DOE to provide a narrower timeframe, names or titles of DOE employees who might be custodians of the emails sought, and key terms to be searched, Petitioner "simply refused to do so."

Petitioner subsequently offered a proposed script that would reduce the number of mailboxes being searched which "[n]either the language of the original request nor that of the administrative appeal demonstrates that the limitations now proposed were previously enunciated or provided" to the DOE. The Appellate Division ruled that Supreme Court "appropriately declined to entertain [Petitioner's] proposed means of narrowing the search," which were advanced for the first time in a later reply submitted to Supreme Court.

As DOE did not deny the FOIL request based on Petitioner's seeking voluminous records or claim that conducting the search "would be unduly burdensome or require the creation of new documents," the Appellate Division held Petitioner was not entitled to a hearing to resolve certain purported issues of fact.

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

 

The Volunteer Firefighters' Benefit Law, incorporating by reference §29 of the Workers' Compensation Law, provides the exclusive remedies available to a firefighter injured in the line of duty

Plaintiff, a volunteer member of a Volunteer Fire Department [Defendant] allegedly was injured when he fell from the back of a fire truck operated by a fellow volunteer firefighter [Firefighter]. The accident occurred at a "fire track" allegedly owned by the defendant Ridge Fire District, sued as Ridge Volunteer Fire Department, Inc. [Ridge] during an event held in preparation for a firefighting competition. Based on a determination by the Workers' Compensation Board that Plaintiff was injured "in the line of duty," Plaintiff was awarded benefits under the Volunteer Firefighters' Benefit Law.

Plaintiff commenced this action to recover damages for personal injuries against the Defendants, Firefighter and Ridge, among others, alleging that Firefighter negligently operated the fire truck at a dangerous speed during preparations for the firefighting competition. Defendants, Firefighter and Ridge separately moved to dismiss the amended complaint insofar as asserted against each of them [See pursuant to CPLR 3211(a)]. Supreme Court granted those defendants' motions and Plaintiff appeal the Supreme Court's rulings.

The Appellate Division, citing §19 of the Volunteer Firefighters' Benefit Law, noted, in pertinent part, §19 provides that "[t]he benefits provided by this chapter shall be the exclusive remedy of a volunteer firefighter" for injuries sustained "in line of duty ... as against ... any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted."

Thus, opined the court, should a volunteer firefighter sustains an injury in the line of duty, the injured firefighter is barred from seeking recovery against either a fire company with which he or she had an employer/employee relationship or fellow firefighters acting "in furtherance of their duties and activities* [and §20 of the of the Volunteer Firefighters' Benefit Law] incorporates by reference subdivision 6 of §29 of the Workers' Compensation Law, which provides that compensation is the exclusive remedy of an employee injured by the negligence or wrong of another in the same employ" (See Malone v Jacobs, 88 AD2d 927)."

Accordingly, the Appellate Division held that Supreme Court properly granted the motions of Defendant and Firefighter pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against each of them.

With respect to Ridge, the Appellate Division said Ridge submitted documentary evidence conclusively establishing that it did not own the property where the accident occurred, and thus, that "a material fact as claimed by the [Plaintiff] is not a fact at all" and Supreme Court properly granted Ridge's motion to dismiss the amended complaint insofar as asserted against it.

* See Lima v State of New York, 74 NY2d 694 and Theodoreu v Chester Fire Dist., 12 AD3d 499).

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

 

Federal Rule of Appellate Procedure 28(a) requires all appellants to provide the court with a clear statement of the issues on appeal in their briefs

Plaintiff, proceeding pro se,* sued the school district where he previously work as well as certain administrators and another former colleague [collectively Defendants] for alleged discrimination and retaliation on the basis of race, gender, age, and disability status under various federal statutes. A federal district court dismissed the Plaintiff's claims as barred by a general release in a settlement agreement and as time barred. Plaintiff filed a timely appeal with the U.S. Circuit Court of Appeals, Second Circuit.

Plaintiff, however, did not challenge these federal district court’s rulings in the brief he submitted to the Circuit Court. Rather, observed the Circuit Court, Plaintiff "focused solely on the merits of his underlying claims", alleged acts of unlawful discrimination and retaliation undertaken by the Defendants. In the words of the Circuit Court, Plaintiff "does not dispute that his claims were precluded and time barred".

The Circuit Court affirmed the district court's ruling, explaining it liberally construes pleadings and briefs submitted by pro se litigants to raise the strongest arguments they suggest. However, said the court, pro se appellants must still comply with Federal Rule of Appellate Procedure 28(a), which requires all appellants “to provide the court with a clear statement of the issues on appeal” in their briefs.

Plaintiff had conceded the procedural issues that resulted in the dismissal of his complaints by the federal district court and he could not advance the merits of his "underlying claims" in the brief he submitted to the Circuit Court of Appeals.

* Pro se [Latin] meaning for or on one's own behalf.

Click HERE to access the decision of the Circuit Court of Appeal posted on the Internet.