August 16, 2010

State auditors find former Sodus Town Clerk embezzled town funds

State auditors find former Sodus Town Clerk embezzled town funds
Source: Office of the State Comptroller

An audit report released on August 10, 2010 by New York State Comptroller Thomas P. DiNapoli indicates that a former Sodus town clerk embezzled approximately $50,000 during the period January 1, 2008 to September 28, 2009.

The Comptroller’s audit was limited to a review of the clerk's monthly and annual reports and did not include an examination of the books, records, cancelled checks and check images.

The auditors found that when collecting taxes, water rents and clerk fees, the clerk took some of the cash payments and used the interest and penalties paid by others to cover the amounts taken.

In addition, the auditors noted that the board had not establish adequate policies and procedures to safeguard computerized data and assets.

The Comptroller's audit states that the objective of the audit was to determine if the former Town Clerk was properly recording, reporting and distributing all moneys received by her office for the period January 1, 2008 to September 28, 2009 and addressed the following related questions:

1. Did the former Town Clerk record, deposit, disburse and report all clerk fees, real property
taxes and water rents that she received in a timely and accurate manner?

2. Did the Board implement adequate internal control policies and procedures to protect and
account for Town assets?

The Auditors found that the former Town Clerk did not accurately record and deposit all moneys collected, resulting in a shortage of over $50,000 and has admitted that she embezzled Town funds for the last eight years.

Additionally, the reports states that the Board retained the responsibility for examining the Town Clerk’s books and records but did not perform an adequate examination of the former Town Clerk’s supporting books, records, receipts, canceled checks or check images. The Board’s examination consisted only of reviews of the former Town Clerk’s monthly and annual reports.

As a result, the Board was not aware that the former Town Clerk did not keep complete and accurate records and reports of receipts and disbursements, perform regular and competent reconciliations of those records to the bank accounts, and properly deposit moneys and issue payments in a timely manner.

DiNapoli recommended the board and incumbent Town Clerk:

1. Take appropriate action to recover town monies from the former town clerk;

2. Adequately support and deposit all monies received into the proper accounts intact and in a timely fashion;

3. Reconcile accounts on a monthly basis and analyze and reconcile available cash with liabilities;

4. Perform or contract for a thorough annual examination of the town clerk’s financial operations; and

5. Adopt information technology policies and procedures that address user access rights.

The Comptroller’s office said that Town officials generally agreed with these recommendations and plan to take corrective action.

The complete text of the Comptroller's report is posted on the Internet at:

Other recent reports issued by the Officer of the State Comptroller are listed below. Click on the highlighted caption to access the full report posted on the Internet.

Report: New York is "Nationwide Pension Leader" and CRF is "Highest Funded" in U.S. Comptroller DiNapoli released a statement on Wednesday in response to an article in Governing magazine that cites New York as the nationwide pension leader.

DiNapoli Shines a Light on Public Authorities Despite employing 159,000 people and spending $44 billion annually, New York's 1,100 state and local public authorities remain largely unknown and unrecognized entities, according to a report released by State Comptroller Thomas P. DiNapoli. Recent legislative changes have begun to improve reporting by and oversight of these entities.

DiNapoli: Local Governments Need to do Better at Preventing Fraud and Abuse More than 51 fraud and abuse cases totaling approximately $10 million have been uncovered in local governments and school districts across New York since 2007, according to a report released on Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli's Office Completes Audit Of Nassau Health Care Corp. State Comptroller Thomas P. DiNapoli on Thursday announced his office completed the audit report: Nassau Health Care Corporation (NuHealth) - Faculty Practice Plan (FPP).

DiNapoli: Town Of Wales' Property Tax Increases Were Unnecessary The Town of Wales failed to adopt realistic budgets and, over the past 10 years, continued to raise taxes despite excessive fund balances, according to an audit released on Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Learning Center Collected Funds For Services Not Rendered An audit released by State Comptroller Thomas P. DiNapoli found that the Rainbow Rhymes Learning Center (Rainbow) of the Bronx spent nearly a half million dollars in reported expenses that were either not adequately supported, not program appropriate or were claimed for a period Rainbow was not entitled to reimbursement. Furthermore, auditors found Rainbow did not provide significant contract deliverables including no after school program for inner city children at one facility.

Failing to investigate without more is not an adverse employment action

Failing to investigate without more is not an adverse employment action
Source: Adjunct Law Prof Blog;
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Fincher v. Depository Trust & Clearing Corp., ____F.3d____ (2d Cir. May 14, 2010), is an important case, here. In this Title VII case, the 2d held that employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the complaint. As the court states:

“We are of the view nonetheless that, at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discriminationcomplaint.

“We thus adopt the position previously taken by several district courts in this Circuit. See, e.g., Thomlison v. Sharp Elecs. Corp., No. 99 Civ. 9539, 2000 WL 1909774, at *4,2000 U.S. Dist. LEXIS 18979, at *12-13 (S.D.N.Y. Dec. 18, 2000). "Affirmative efforts to punish a complaining employee are at the heart of any retaliation claim." Id., 2000 WL1909774, at *4, 2000 U.S. Dist. LEXIS 18979, at *12.

“An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all. Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge.

”We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action….”

Mitchell H. Rubinstein

The text of the decision is posted on the Internet at:

Claiming unemployment insurance benefits during the school's summer recess

Claiming unemployment insurance benefits during the school's summer recess
Huff v Sweeney, 222 A.D.2d 919

Teacher’s aides who are provided with a reasonable assurance of reemployment following a summer recess are ineligible for unemployment insurance benefits during the recess period.

Dennis Huff, challenged a denial of such benefits by the Unemployment Insurance Appeals Board. Huff, a teacher’s aide employed by the Buffalo City School District, was told that his employment would temporarily come to an end at the end of the school year and that his employment would resume in September.

Huff applied for unemployment insurance but his application was rejected on the grounds that “he had been given reasonable assurance that he would be rehired on the same terms in the fall.” The Appellate Division affirmed the Unemployment Insurance Appeals Board’s decision disqualifying Huff for benefits.

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance

County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance procedure
Vaillancourt v Putnam County, 250 A.D.2d 617

Grievance procedures typically provide for a series of steps ultimately leading to arbitration. Pre-arbitration determinations are made by the employer’s designated representative, which may be a hearing officer or a panel.

Typically the appointing authority accepts and implements the findings of its designated representative. But what happens if the employee’s grievance is sustained by the employer’s designated representative, but employer refuses to implement it? This somewhat unusual circumstance is examined in the Vaillancourt case.

Patricia Vaillancourt filed a grievance after her employer, Putnam County, refused to grant her a lateral transfer from the County Department of Mental Hygiene to the County Department of Social Services.

The County Grievance Committee ruled in her favor at Step III of a five-step grievance procedure. But the Commissioner of the Department of Social Services refused to implement the Committee’s decision. When the County Executive refused to take action implementing the decision, Vaillancourt’s union sued.

Initially, the union lost. A State Supreme Court justice dismissed the union’s petition, observing that the union never took advantage of the fifth step of the grievance procedure -- proceeding to arbitration. The Supreme Court found that this constituted a failure to exhaust the available “administrative remedy.”

On appeal the Appellate Division reversed the lower court’s ruling. It said that the collective bargaining agreement provided for a “Step 4” appeal to the County Executive in the event the Grievance Committee dismissed the grievance. In contrast, the Court noted, “the agreement did not afford the County the same right in the event that the Committee sustained [Vaillancourt’s] grievance.”

Since the Grievance Committee sustained Vaillancourt’s grievance, the court concluded that this had been the final resolution of the grievance. The Appellate Division therefore held that Vaillancourt was entitled to have the decision in her favor enforced and that there was no need to go to arbitration.

There was a different outcome in a grievance case with similar procedural facts [Weed v Orange County, 209 A.D.2d 627; 209 A.D.2d 628].

Weed had been injured on the job and applied for leave with full pay, claiming he was eligible for such leave under the terms of the collective bargaining agreement then in effect. The Orange County Commissioner of Personnel disapproved Weed’s request. Weed filed a contract grievance and won at Step I, when his supervisor ruled in his favor. The Commissioner refused to implement the Step I decision and Weed sued.

The Appellate Division dismissed Weed’s petition, citing the language of the contract. Under the terms of the agreement “the Commissioner of Personnel is given sole discretion in granting paid leave.” Therefore, the issue was not grievable in the first place.

Presumably the Court would have enforced the decision by Weed’s immediate supervisor had the contract not reserved the authority to make paid leave decisions exclusively in the Commissioner.

August 13, 2010

Appointing an individual to serve as an election commissioner

Appointing an individual to serve as an election commissioner
Wood v County of Cortland, 72 AD3d 1447

County Legislature has the authority to appoint an Election Commissioner where the mechanism for making such an appointment set out in Election Law § 3-204 did not result in an appointment.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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