New York State Comptroller DiNapoli releases municipal and school audits

On March 8, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits were issued.

Peconic Bay Community Preservation Fund (Suffolk County)

Town officials from all five towns (East Hampton, Riverhead, Shelter Island, Southampton, and Southold) ensured disbursements were proper and supported, and debt service payments were for legitimate Peconic Bay Community Preservation Fund purposes and properly allocated. However, Town of Riverhead officials did not always record dates collections were received or deposit payments in a timely manner.

 

Canajoharie Volunteer Fire Department – Financial Activities (Montgomery County)

Department officials did not ensure that financial activities were properly recorded and supported. As a result, the ability to make financial decisions was hindered and officials lacked the information necessary to provide an annual report. The treasurer did not: accurately record 86 transactions (23%) totaling $33,280 or provide timely monthly reports to officials for eight of the 13 months in the audit period; or prepare bank reconciliations. Adequate cash collection controls were not established and 48 deposits totaling $16,655 were not made in a timely manner. Auditors found 248 disbursements totaling $81,595 were not audited and approved before payment, and 111 disbursements totaling $19,650 were made by debit card, circumventing the ability to be audited and approved before payment.

 

Bellmore Union Free School District – Payroll (Nassau County)

District officials did not always approve, support and monitor overtime. As a result, overtime expenditures exceeded budgeted overtime by $49,576 during the audit period and officials increased the risk that employees may have been paid for unnecessary overtime. Auditors reviewed 169 overtime request forms and the associated time sheets for five facilities and transportation department employees who received overtime pay totaling $78,595 and determined that 100 forms lacked the reason officials paid overtime totaling $30,291. In addition, officials paid unapproved overtime totaling $2,176.

 

Town of Cobleskill – Budgeting (Schoharie County)

The board did not develop realistic budgets. Budgeted appropriations were overestimated in the town-wide (TW) general and highway funds, and estimated revenues were underestimated in the town-outside-village (TOV) highway fund resulting in operating surpluses totaling $677,000. Actual expenditures were less than appropriations by an average of $89,000 (15%) and $196,000 (26%) in the TW general and highway funds, respectively and actual revenues exceeded estimated revenues by an average of $112,000 (90%) in the TOV highway fund. As a result, much of the $424,000 of fund balance the board planned to use to fund projected deficits was not used and unrestricted fund balances increased to levels between 100% and 179% of the 2023 appropriations. In addition, the town’s preliminary budgets for the three fiscal years examined did not include fund balance estimates with a breakdown by fund as required.

 

Chateaugay Central School District – Nonresident Homeless Student State Aid (Clinton County)

District officials did not claim state aid totaling $145,164 for nonresident homeless students during the audit period because the superintendent was not aware that the district could claim this aid. As a result, district taxpayers will not benefit from state aid totaling $62,920 because the filing deadlines have passed. The district may also lose the remaining $82,244 in state aid if officials do not properly submit claims for reimbursement by June 30, 2024. District officials did not establish policies and procedures to ensure state aid was claimed for nonresident homeless students. Officials also did not complete and maintain designation forms and submit them to the New York State Education Department.

 

Brushton-Moira Central School District – Tuition Billing (Franklin County)

District officials did not properly bill tuition for nonresident foster care students enrolled in the district. As a result, as of Sept. 30, 2023, officials had not billed or underbilled $40,803 of the $71,192 (57%) in tuition it was entitled to and billed and collected $12,452 in tuition it was not entitled to for the 2019-20 through 2021-22 school years. District officials also did not provide oversight of the officials who prepared the tuition bills or establish adequate procedures to ensure tuition bills were prepared, accurately calculated and issued to the school districts of origin for all eligible nonresident foster care students.

 

Questar III Board of Cooperative Educational Services (BOCES) – Information Technology (IT) Hardware Asset Inventory (Statewide)

As of June 30, 2023, Questar BOCES had IT assets with an original cost of $28.5 million (44,305 items) accounted for in its inventory that were either purchased for a component school district or for use at Questar BOCES. Based on the auditors’ review, Questar BOCES officials properly accounted for all 817 IT hardware assets reviewed with a purchase value of $612,386 and ensured assets declared surplus were properly disposed.

 

 

Selected links to items focusing on government operations posted on the Internet during the week ending March 8, 2024

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City school district superintendent pleads guilty to public corruption

State Comptroller Thomas P. DiNapoli, Oneida County District Attorney Todd Carville, and the New York State Police today announced long-time superintendent of the Utica City School District (UCSD), Bruce Karam, pleaded guilty to the felony charge of public corruption for using taxpayer funds to help support a political campaign relating to the 2021 Utica City School Board election and a non-school related fundraiser. As part of the plea agreement, he will serve five years of probation, pay restitution of $12,000, complete 250 hours of community service and agreed to a consent order to reduce his pension benefits.

“Karam took vital funds meant to support the education of students and instead used them to serve his own needs,” DiNapoli said. “As a consequence of his actions, he is now a convicted felon and has been held accountable for his crimes. I thank District Attorney Carville and the State Police for their partnership in rooting out public corruption.”

District Attorney Carville said: “It is imperative that local leaders understand the responsibility and trust that the public has in the work they do. Those who chose to abuse that trust are not fit to serve and will be held accountable.”

New York State Police Acting Superintendent Steven G. James said: “This case demonstrates the hard work of all our law enforcement partners who are focused on the same goal – holding those who break our laws accountable. Mr. Karam violated the public trust by stealing taxpayer money intended to provide a quality education for students at the Utica City School District. I commend the diligent work of our State Police members, our partners at the State Comptroller’s Office and the Oneida County District Attorney’s Office, for their hard work in putting an end to this dishonest act.”

Karam and a co-defendant, former Utica Mayor and UCSD School Board President Louis LaPolla, were arrested in November 2023. Comptroller DiNapoli’s Office, the district attorney, and the State Police determined that Karam was using taxpayer money and school resources including labor, stamps, envelopes, and other supplies to send election mailers in support of a school board candidate.

He was also accused of using school resources to send invitations for a non-school related fundraiser for a purported charity run by LaPolla. Fundraiser fliers for the charity were inserted by school district employees during school hours in envelopes the school district paid for and were mailed using the district’s stamps.

Karam served as UCSD superintendent from 2011 until he was put on leave in October 2022. He was fired by the school board shortly after his arrest.

Karam pleaded guilty in Oneida County Court before Judge Michael L. Dwyer and is to be sentenced on April 19. LaPolla’s next court date is April 10. The consent order will be filed by the district attorney in Oneida County Supreme Court.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money  by filing a complaint online at  https://www.osc.ny.gov/investigations, by calling the toll-free Fraud Hotline at 1-888-672-4555, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Submitting appeals to the Commissioner of Education

§275.8(a) of the Regulations of the Commissioner of Education [4 NYCRR §275.8(a)] requires that the petition setting out an appeal to the Commissioner be personally served upon each named respondent.  

In the event a school district is named as a respondent, service upon the school district is to be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

In this instance the Petitioner attempted to effectuate service of an appeal to the Commissioner on the named respondent by mailing the petition to the New York State Education Department. 

The Commissioner ruled that the appeal must be dismissed for failure to personally serve the only "named respondent", the Board of Education of the school district.

Click HERE to access the decision of the Commissioner of Education posted on the Internet.

Setting aside a decision denying an application for accidental disability retirement benefits resulting from a "tie vote"

The Board of Trustees of the New York City Police Pension Fund, Article II, [Trustees] rejected Petitioner's application for an accidental disability retirement [ADR] and approved Petitioner for an ordinary disability retirement [ODR] retirement benefit by a tie-vote.  Petitioner initiated a CPLR appeal challenging the Fund's decision. The Appellate Division sustained the Fund's determination, explaining the Petitioner "has not met her burden of establishing that the disability was causally connected to a line-of-duty accident".

The court noted that the denial of Petitioner's application for ADR was the result of a tie vote. Citing Matter Doorley v Kelly, 106 AD3d 554, the Appellate Division observed that a tie vote by the Trustees may only be set aside on judicial review if the court concludes that the applicant is entitled to the increased benefits as a matter of law based on the record because "the disability was the natural and proximate result of a service-related accident".

The court further opined that not every line of duty injury will support an award of ADR, as "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury".

In the words of the Appellate Division, "for ADR benefits to apply, there must be a precipitating accidental event, that is, a fortuitous, unexpected event". Observing that Petitioner testified that she had worked "in the subject intersection several times before without incident, that she had previously been made aware of the condition of the road by pedestrian complaints, and that on the day of her injury, she had been in the intersection at least 30 minutes before she took a misstep," the court concluded "it cannot be said that as a matter of law, [Petitioner's] fall was an unexpected and unforeseeable accident.

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

 

Applying burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

Plaintiff brought this action in federal district court contending her employee organization [Union] declined to demand arbitration of her workload grievances relating to the size of the office space she was required to clean but acted upon a similar grievances advanced by a coworker who was not Hispanic. Plaintiff charged the Union with "unlawful discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ('Title VII'); the New York State Human Rights Law, N.Y. Executive. Law §290 et seq. ('NYSHRL'); and the New York City Human Rights Law, N.Y. City Admin. Code §8-101 et seq. ('NYCHRL'); as well as violation of the Union’s duty of fair representation under the National Labor Relations Act ('NLRA'), 29 U.S.C. §151 et seq."

Upon conclusion of discovery, the Union moved for, and the district court granted, summary judgment in favor of the Union, determining that Plaintiff failed to show that the reason's the Union advanced for declining to file a grievance on behalf of Plaintiff "was pretextual, arbitrary, or taken in bad faith, or that the [Union's] decision was otherwise motivated by discrimination."

The United States Circuit Court of Appeals, Second Circuit [Circuit Court], viewing the federal district court's granting summary judgment de novo and viewing the evidence "in the light most favorable to [Plaintiff] as to 'whether genuine issues of material fact preclude judgment as a matter of law' ....” Also noting the Union withdrew the arbitration of the coworker’s grievance in the aftermath of the COVID-19 pandemic, the Circuit Court said "To the extent that [Plaintiff] challenges the district court’s determination that her duty-of-fair-representation claims were untimely," the Circuit Court said it would resolve those claims on the merits as follows:

Addressing Plaintiff's claim of Unlawful Discrimination Under Title VII and NYSHRL, the Circuit Court opined Title VII bars a Union from discriminating against its members because of, inter alia, race or national origin citing 42 U.S.C. § 2000e-2(c)]. "Under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792," Plaintiff must first establish a prima facie case of Title VII discrimination'by showing that:

"(1) she is a member of a protected class;

"(2) she is qualified for her position;

"(3) she suffered an adverse employment action; and

"(4) the circumstances give rise to an inference of discrimination."

Once Plaintiff establishes a prima facie case, the burden of going forward shifts to the Union to offer “some legitimate, nondiscriminatory reason” for the differing treatment. In the event the Union "offers such a reason for its actions, the burden shifts back to Plaintiff to demonstrate that the proffered reason was pretextual.

The Circuit Court ruled that the Union had satisfied this requirement.

Citing see Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9, the Circuit Court noted that the Second Circuit had recognized that Title VII and NYSHRL discrimination claims are “analytically identical, applying the same standard of proof to both claims”, and that "the reasoning in this section applies to both claims". In this instance, explained the Circuit Court, no reasonable jury could find, based on the record evidence, find that the Union’s articulated reasoning was pretextual or that Plaintiff's race or national origin argument was a motivating factor in the Union’s decision-making.

Pointing out that Plaintiff had "acknowledged that the coworker’s floor was the largest in the building, lending support to the Union’s stated reason (supported by an affidavit from a Union attorney) for taking only the coworker’s claim to arbitration", while [Paintiff] pointed to "a troubling incident in which a Union official referred to her in a text message as a 'stupid Dominican' after a Union election", Plaintiff did not indicate how that statement was connected to the Union’s arbitration decisions.*

Further, the Circuit Court held that "the coworker was not an adequate comparator" because of the relative sizes of their respective assigned cleaning areas.

Accordingly, the Circuit Court held that "the district court did not err in granting summary judgment to the Union under both Title VII and NYSHRL.

Turning to Plaintiff's "Unlawful Discrimination Under NYCHRL" claim, the Circuit Court said that the Second Circuit has "recognized that courts must analyze NYCHRL discrimination claims 'separately and independently from any federal and state law claims'.” In the words of the Circuit Court, summary judgment may be appropriate under the NYCHRL “if no reasonable jury could conclude either that the defendant’s reasons were pretextual, or that the defendant’s stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination.”

Focusing on Plaintiff's Fair Representation Under the NLRA argument, citing Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quoting Vaca v. Sipes, 386 U.S. 171, 177 (1967), the Circuit Court opined that "the duty of fair representation is a 'statutory obligation,'" demanding that a union “serve the interests of all members without hostility or discrimination ... to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct". 

The duty of fair representation, said the Circuit Court, is breached where a union’s actions “with respect to a member are arbitrary, discriminatory, or taken in bad faith.”

Finding that the Union "offered a clear explanation for why its decision was neither arbitrary nor taken in bad faith", the Circuit Court observed that Plaintiff rejected the Union’s stated reasoning, but "offered no evidence supporting her assertion that the Union pursues fewer arbitration grievances raised by Hispanic workers than it does for non-Hispanic workers."

Opining that a reasonable jury could conclude that the Union’s decision was not arbitrary, irrational, or taken in bad faith, the Circuit Court affirmed the district court ruling, holding that the lower court "did not err in granting [the Union's motion for] summary judgment".

* Plaintiff, in her deposition, "did not assert that she thought that the [Union's] arbitration decision was connected to the Union election".

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