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May 20, 2013

Audits reports issued by New York State Comptroller Thomas P. DiNapoli


Audits reports issued by New York State Comptroller Thomas P. DiNapoli 

New York State Comptroller Thomas P. DiNapoli announced today the following audits have been issued:

Department of Health, Excessive Medicaid Payments for Services to Recipients Receiving Medicare Benefits (Follow-Up) (2012-F-29)
An initial audit report, issued in September 2010, examined whether DOH was correctly paying claims for services to Medicaid recipients who also had health insurance through Medicare. Auditors identified about $600 million in Medicaid payments that could have been avoided had DOH taken more comprehensive and proactive steps to administer Medicaid reimbursements for services provided to dual eligible individuals. In the audit just released, auditors found DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. All three prior audit recommendations have been partially implemented.

New York State Thruway Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-33)
NYSTA is responsible for inspecting its bridges and repairing any defects found during inspections. If a serious (“red flag”) structural defect is identified during an inspection, NYSTA must notify the New York State Department of Transportation (DOT) within one week. NYSTA has six weeks to take appropriate action. In addition, NYSTA must provide DOT with the written determinations from bridge inspections within 60 days. Auditors found the authority repairs defects identified during inspections. However, highway bridges were not always inspected timely and DOT was not always notified of red flags within one week, as required.

Rochester-Genesee Regional Transportation Authority, Real Estate Portfolio (2012-S-90)
The Rochester-Genesee Regional Transportation Authority provides public transportation services in Monroe, Genesee, Livingston, Orleans, Wayne, Wyoming and Seneca counties. State law requires each authority to maintain adequate inventory controls for its property and report annually on all property held. It also requires authorities to determine which property shall be disposed of and transfer or dispose of such property as promptly as possible. Auditors found the authority has accounted for all of its property holdings and established a value for them. However, it owns two properties that have been identified as excess holdings for more than 14 years. Additionally, the authority did not accurately report its property holdings during the three years ended March 31, 2012.

Department of Environmental Conservation, Pollution Testing on Exhaust Emissions from Heavy Duty Diesel Vehicles (Follow-Up) (2013-F-3)
The initial audit report, issued in March 2010, examined whether DEC adequately fulfilled its testing program responsibilities for exhaust emissions. Auditors found DEC generally fulfilled its responsibilities but could improve by maintaining critical performance data and coordinating with DMV and DOT to ensure such data was maintained for all aspects of the program. Auditors also questioned whether DEC's coverage of inspection facilities was adequate. In a follow-up report, auditors found DEC officials have made progress addressing the issues identified in the initial report. Of the 12 prior audit recommendations four were implemented, five were partially implemented, and three were not implemented.

State University of New York, Fuller Road Management Corp., College of Nanoscale Science and Engineering - Network Security Controls (2012-S-28)
The college has a number of business relationships with both public and private organizations. As part of these relationships, the college facilitates the management and processing of financial, legal, research, and numerous other types of data. The New York Office of Cyber Security’s Information Security Policy defines a set of minimum security requirements that are considered best practices for all state entities, including SUNY campuses. Auditors found that in addition to the security measures established by the university, the college has implemented its own controls that protect the security of systems and data.

Department of Agriculture and Markets, Disposal of Electronic Devices (2012-S-70)
State policy requires all state agencies to establish formal procedures to address the risk that personal, private or sensitive information may be improperly disclosed. One way information can be compromised is through disposal of electronic devices. Auditors found that 15 of the 132 electronic devices readied for surplus by the agency still contained data, even though the department had certified that all memory devices had been removed. One of the hard drives contained personal, private and sensitive information related to an employee. The printer hard drive and cameras also contained retrievable data, and the cell phones had not been programmed back to their original manufacturer settings.

Capital District Transportation Authority, Real Estate Portfolio (2012-S-91)
The authority’s primary responsibility is the management of the capital region’s bus services. State law requires the authority to report its real property holdings, listings of properties purchased or sold and its sale/lease procedures annually. The authority has a real estate portfolio that consists of nine properties/facilities. In connection with this portfolio, the authority reported that it has entered into 23 leases that generate about $808,000 annually. Auditors found the authority’s annual report for 2011-2012 omitted three properties. In addition, the three properties were not disclosed on the authority website and the report that was available on the website was not dated. The authority also could not document that it achieved fair market value for the properties.

Department of Transportation, Collection of Lease and Permit Revenues (2012-S-6)
DOT has land that it does not use continuously. Interested parties can pay a fee for a permit to use such land temporarily. Auditors found DOT is not effectively collecting all unpaid lease and permit fees. As of May 2012, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. In total, 195 permits were more than 30 days past due. Of 45 sampled permits which had outstanding balances, no action was taken on eight. These eight permits had a total of $417,000 outstanding at the time of the audit.

Statewide Travel Audits
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entity:

State University of New York, College at Plattsburgh - Selected Employee Travel Expenses (2012-S-141)
Auditors examined the travel costs of two college employees with $194,805 in travel costs. Most of the expenses examined were appropriate. However, one faculty member charged the College for $708 in expenses that were not related to official business and used his travel card for $177 of other inappropriate expenses.

For other recent audits, including those on travel, go to: http://www.osc.state.ny.us/audits/auditDateList.htm  

An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress


An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress 
2013 NY Slip Op 03252, Appellate Division, Fourth Department


Supreme Court determined that the resignation of a tenured teacher [Educator] formerly employed by the school district, "was involuntarily submitted as a result of fraud, coercion and duress" and directed Educator’s reinstatement with back pay and benefits.”

The school district appealed and the Appellate Division reversed the Supreme Court’s decision, indicating that further consideration and evaluation of Educator’s allegations of duress by the Supreme Court was required.

Citing Gould v Board of Educ. of Sewanhaka Cent. High Sch. Dist., 81 NY2d 446, the Appellate Division said that as a general rule "A resignation under coercion or duress is not a voluntary act and may be nullified."

In contrast, the Appellate Division, citing Rychlick v Coughlin, 99 AD2d 863, affd. 63 NY2d 643, explained that "it has consistently been held that a threat to do that which one has the legal right to do does not constitute duress."

Stated in the alternative, as the Court of Appeals held in Abramovich v Board of Educ. of Cent. Sch. Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450, motion to reargue denied 46 NY2d 1076, cert denied 444 US 845, "[a] person's resignation may not be considered to be obtained under duress unless the employer threatened to take action which it had no right to take.”

Further, said the Appellate Division, under "appropriate circumstances . . . a tenured teacher may, as part of a stipulation in settlement of a disciplinary proceeding brought against him [or her], waive his or her continued right to the protections afforded by §3020-a of the Education Law" provided that such a settlement is “voluntarily and knowingly made” in contrast to having been made "lightly, inadvertently, inadvisedly or improvidently….”

The Appellate Division ruled that under the circumstances Supreme Court should conducted a trial "to resolve the factual issue raised by the pleadings and affidavits concerning [Educator’s] allegations of duress and to make appropriate findings of fact before proceeding any further" and remanded the case to Supreme Court for that purpose.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03252.htm

May 19, 2013

State Comptroller reports a returned 10.38 % on for the State’s pension fund Investments in FY 2013, currently valued at an all time high of $160 billion


State Comptroller reports a returned 10.38 % on for the State’s pension fund Investments in FY 2013, currently valued at an all time high of $160 billion

On May 13, 2013 New York State’s Comptroller Thomas P. DiNapoli announced that the New York State Common Retirement Fund (Fund) was valued at an estimated $160.4 billion and earned an estimated 10.38 percent rate of return on its investments for the fiscal year ending March 31, 2013.

“The New York State Common Retirement Fund has reached a milestone,” DiNapoli said. “The Fund ended the fiscal year at an estimated $160.4 billion, an all-time high, and it remains well-positioned for growth as the financial markets continue to gain strength. Fiscal year 2014-2015 will be the final year that employer contribution rates will reflect the market loss of 2008-2009.”

Returns for the Fund’s asset classes were:
  • Domestic Equities returned 14.48 percent (at 36 percent of the Fund’s total investments)
  • Fixed Income returned 4.87 percent (28.2 percent)
  • Non-US Equities returned 9.47 percent (14.1 percent)
  • Private Equity returned 11.75 percent (8.6 percent)
  • Real Estate returned 11.08 percent (6.8 percent)
  • Global Equities returned 13.88 percent (2.9 percent)
  • Absolute Return Strategies returned 7.95 percent (3.2 percent)
  • Opportunistic Alternatives returned 7.89 percent (0.2 percent)
The Fund is the third-largest public pension fund in the country and remains one of the nation’s best-managed and best-funded pension plans. In February, Funston Advisory Services completed an independent review of the Fund that found it is well-run, operates with an industry-leading level of transparency and invests effectively on behalf of its members.

The New York State and Local Retirement System provides benefits to over one million state and local government employees, retirees and beneficiaries. Over the last 20 years, 82 percent of the cost of benefits have been funded from investment returns.

Click herefor prior year returns.

May 18, 2013

NYPPL's Decision of the Week for the Week ending May 18, 2013 - Allegations of unlawful racial discrimination


NYPPL's Decision of the Week 
For the Week Ending May 18, 2013

Allegations of unlawful racial discrimination

This action was brought by the United States Department of Justice pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. and alleged that hiring of New York City firefighters was tainted by unlawful racial discrimination and that the New York City Fire Department’s employment procedures for screening and selecting entry-level firefighters had an unjustified disparate impact on black and Hispanic applicants.

The principal issues in this appeal were [1] whether summary judgment was properly entered against the City on a claim of intentional discrimination, [2] whether claims against the City’s Mayor and former Fire Commissioner were properly dismissed, [3] whether an injunction, based both on the finding of intentional discrimination and an unchallenged finding of disparate impact in entry-level examinations, is too broad, and [4] whether, in the event of a remand, the case, or some portion of it, should be reassigned to another district judge.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
Heard: June 26, 2012 Decided: May 14, 2013
Docket No. 11-5113-cv(L), 12-491-cv(XAP)
- - - - - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA, Plaintiff-Appellee, THE VULCAN SOCIETY, INC., MARCUS HAYWOOD, CANDIDO NUNEZ, ROGER GREGG, Intervenors-Plaintiffs-Appellees-Cross-Appellants

v.

CITY OF NEW YORK, MICHAEL BLOOMBERG MAYOR, and NICHOLAS SCOPPETTA, NEW YORK FIRE COMMISSIONER, in their individual and official capacities, Defendants-Appellants-Cross-Appellees, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICE, NEW YORK CITY FIRE DEPARTMENT, Defendants.

Before: NEWMAN, WINTER, and POOLER, Circuit Judges

Appeal by the City of New York, Mayor Michael Bloomberg, and former Fire Commissioner Nicholas Scoppetta from the December 8, 2011, order of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, District Judge), issuing an injunction against the City with respect to the hiring of entry-level firefighters, and a cross-appeal by the Intervenors from the February 1, 2012, partial final judgment dismissing federal and state law claims against Mayor Bloomberg and former Fire Commissioner Scoppetta.

The City’s appeal also seeks review of the January 13, 2010, order granting the Intervenors summary judgment on their disparate treatment claim, which alleged intentional discrimination, and, on the appeal from the injunction, seeks reassignment of the case to a different district judge.

Summary judgment on the disparate treatment claim against the City is vacated; dismissal of the federal claims against Mayor Bloomberg is affirmed; dismissal of the state law claims against Mayor Bloomberg and Commissioner Scoppetta is affirmed; dismissal of the federal law claims against Commissioner Scoppetta is vacated; the injunction is modified, and, as modified, is affirmed; and the bench trial on the liability phase of the discriminatory treatment claim against the City is reassigned to a different district judge.

Affirmed in part, vacated in part, and remanded.

[Judge Pooler dissents in part with a separate opinion.]

The full text of the majority’s 59-page opinion, together with the 23-page dissenting opinion of Judge Pooler, is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/155a2259-8686-4d25-b6fc-6a56bd4db3e0/2/doc/11-5113_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/155a2259-8686-4d25-b6fc-6a56bd4db3e0/2/hilite/

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