Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 13, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Finds Millions in Medicaid Overpayments

New York State’s Medicaid program overpaid providers $11.4 million, largely because providers overstated the amounts of Medicare coinsurance charges and incorrect rate changes, according to two audits of the Department of Health released Tuesday by State Comptroller Thomas P. DiNapoli. The state has recovered $3.8 million of these overpayments.

DiNapoli: Long Beach Faces Fiscal Challenges but Moving in Right Direction

Poor budgeting of the prior administration in the city of Long Beach created an $18 million multi–year deficit while also exhausting $21 million in rainy day funds, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The audit, which was requested by city officials, was conducted prior to the damage caused Superstorm Sandy.

DiNapoli Releases Bronx Economic Snapshot

The Bronx has made impressive economic gains in recent decades according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. Population, business and job growth has been strong and the Bronx continued to add jobs even during the Great Recession.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

Cattaraugus County;

the Lansing Fire District;

the Town of Fremont; and,

the Middle Island Fire District.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced that his office completed audits of

the Child Development Center of the Hamptons Charter School; and,

the Syracuse Academy of Science Charter School.

State Education Department, Rainbow Rhymes Learning Center (Follow-Up) (2012-F-31)

An audit issued in 2010 examined whether selected State Education Department grant payments to Rainbow Rhymes Learning Center were appropriate. Auditors found that Rainbow claimed $473,815 in expenses that were either not adequately supported, not program appropriate or were claimed for a period for which Rainbow was not entitled to receive reimbursement. In a follow-up report, auditors found that of the three prior audit recommendations, one was implemented and two were partially implemented. However, SED has not yet recovered the overpayments.

New York State Thruway Authority, Status of the Board-Approved Capital Plan For 2005-2011 (Follow Up) (2013-F-5)

An audit report issued in 2008 examined the actions taken by the Thruway in monitoring and reporting on the board-approved Capital Plan for 2005-2011. Auditors found the Thruway did not report whether the individual projects were starting and finishing on time and within budget. Furthermore, the authority could not support its decision-making and prioritization of all capital project items. Auditors also found that completing the plan as approved would take longer and cost significantly more than was originally forecast. In a follow-up report, auditors found Thruway officials have made progress in correcting the problems identified. However, additional improvements are needed.

Division of Housing and Community Renewal, Disposal of Electronic Devices (2012-S-101)

Auditors tested a total of 752 electronic devices at both the Albany and the New York City offices. In Albany, two devices still contained general agency information and personal pictures, but none contained personal, private or sensitive information. In New York City, 13 hard drives showed indications that they still contained data. Auditors were unable to locate 17 computer hard drives that had already been removed from computers and were scheduled for shredding. Auditors could also not locate 18 servers listed on the inventory records. Auditors could not locate eight other devices listed on inventory records and found one device recorded as surplus that was still in use.

Department of Corrections and Community Supervision, Seventeen Years of Fraud by the Former Director of the Department of Correctional Services' Food Production Center (Follow-Up) (2012-F-7)

An audit issued in 2010 identified longstanding fraudulent practices committed by former Director of the Food Production Center in Oneida County, Howard Dean. He failed to work on Fridays for 17 years although he claimed to be working a five-day week on his time and attendance records. He also submitted fraudulent travel vouchers and hotel invoices for days he did not stay at a hotel in Rome, N.Y. These practices cost the taxpayers more than a quarter-million dollars. Another quarter million in improper payments occurred because DOCCS failed in its responsibilities to operate in the best interest of the state. In a follow-up report, auditors found DOCCS officials have made progress in addressing the problems we identified in our initial report. Of the five recommendations, three have been implemented and two have been partially implemented.

Tuition Assistance Program - Higher Education Services Corporation, College of Mount Saint Vincent (2011-T-3)

Auditors determined the College of Mount Saint Vincent was overpaid $319,468 because school officials incorrectly certified students as eligible for TAP awards.

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 entities:

State University of New York Upstate Medical Center, Selected Travel Expenses (2012-S-147)

Auditors examined the travel expenses for two individuals paid by SUNY Center with outliers in the area of mileage; one of these individuals also had reimbursements of more than $100,000. In total, auditors examined $175,618 in travel costs associated with these two individuals. Auditors found the travel expenses for the two individuals selected for audit were documented and adhered to state travel rules and regulations.

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 v Buffalo Fiscal Stability Auth., 2013 NY Slip Op 02931, Appellate Division, Fourth Department

The Buffalo Fiscal Stability Authority [BFSA] prohibited the City of Buffalo from complying with an arbitration award known as “Rinaldo I” that set a wage increase for the collective bargaining agreement. The Rinaldo I arbitration award was vacated in its entirety by the Court of Appeals.*

Subsequently an arbitration award involving the same parties designated “Rinaldo II” was issued by the arbitrator. Rinaldo II provided for a wage increase with respect to the collective bargaining agreement in effect from July 1, 2002 to June 30, 2004 between Local 282 and the City. BFSA determined that the wage freeze applied to the wages awarded in Rinaldo II and adopted a resolution, Resolution 11-05, that froze the wages awarded in Rinaldo II..

Local 282 filed an Article 78 petition challenging the authority of BFSA prohibiting the City from effecting the wage increase awarded by the arbitrator in Rinaldo II. Supreme Court dismissed Local 282’s petition.

The Appellate Division affirmed the lower court’s ruling, explaining that “Supreme Court properly determined that the instant proceeding is barred by res judicata.”

Although Local 282’s petition challenged a resolution of the BFSA that applied to Rinaldo II rather than Rinaldo I, the Appellate Division ruled that both arbitrations were between the same parties in interest and concern the same cause of action, i.e., the application of the wage freeze to wage rates for the same CBA.” Thus, said the court, “the instant action therefore is barred by res judicata.…”

* Matter of Buffalo Professional Firefighters Assn., Inc., Local 282, IAFF, AFL-CIO-CLC [Masiello], 13 NY3d 803.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02931.htm

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt
Farrell v New York State Off. of the Attorney Gen., 2013 NY Slip Op 05014, Appellate Division, Third Department

In this proceeding the Appellate Division reviewed a determination of Commissioner of Corrections and Community Supervision which found a prisoner guilty of violating a prison disciplinary rule.

The prisoner contended that, among other things, a meaningful review of the Commissioner’s decision by the court was precluded because a significant portion of the hearing was not transcribed.

The Appellate Division agreed, explaining that it appeared that only the first side of the audiotape made during the hearing was transcribed by the stenographer. The stenographer had noted that "[s]econd side of tape not audible - runs on fast speed only," and then “abruptly ended the transcript.”

The court said that it could not ascertain what was on the second side of the tape or if it would have been beneficial to the prisoner's defense. Accordingly, it ruled that the Commissioner’s determination must be annulled and remanded the matter for a new hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05014.htm

Public officer automatically terminated from his or her position upon conviction of a crime or a violation of his or her oath of office

Public officer automatically terminated from his or her position upon conviction of a crime or a violation of his or her oath of office

Hodgson v McGuire, 75 A.D.2d 763

Public Officers Law §30 provides for an automatic forfeiture of office upon a public officer’s conviction of a felony or a crime involving a violation of his oath of office.

A police officer was dismissed following his entering a plea of guilty to a crime (official misconduct) that was a class A misdemeanor under the Penal Law.

The police officer admitted acceptance of $350 from an undercover police officer and was dismissed without a hearing.

The Appellate Division held that police officers are public officers and that the underlying crime, although not a felony, involved a violation of his oath of office. The court indicated that there is a strong public policy in favor of vacating the office of a public officer convicted of a violation of his oath of office.

As the office was automatically vacated by operation of law, no pre-termination hearing was required.

Suspensions without pay deemed appropriate penalties under the circumstances

Suspensions without pay deemed appropriate penalties under the circumstances

105 AD3d 613

The New York City Department of Correction suspended one correction officer, “M” for sixty days without pay and a second correction officer, “S” for thirty days without pay. M was found guilty using excessive force against an inmate and making false and misleading statements; S was found guilty of misconduct in preparing an official report and making false and misleading statements.

Finding that the Department’s determinations were supported by substantial evidence, the Appellate Division sustained the Department’s decision. As to the penalty imposed, citing the “Pell” standard, the court said that the “The penalty imposed does not shock one's sense of fairness” (Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02698.htm

Determining mandatory subjects of Taylor Law negotiations

Determining mandatory subjects of Taylor Law negotiations

Town of Haverstraw v Newman, 75 A.D.2d 874

The Appellate Division sustained PERB’S determination that “legal insurance”, family sick leave, uniform cleaning allowances and a safety clause in connection with Taylor Law negotiations between the Town and its police officer’s union were mandatory subjects of collective bargaining.

That determination, said the court, was a permissible interpretation of §201.4 of the Civil Service Law and it saw no reason to distinguish legal insurance from health insurance or group life insurance.

 The Appellate Division also commented that PERB was the expert here and that it would not substitute its judgment for that of PERB in this area.

Vacating an arbitration award

Vacating an arbitration award

2013 NY Slip Op 50666(U), Supreme Court, Part-orange County, Judge Catherine M. Bartlett [Not selected for publication in the Official Reports]

It is “black letter law” that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power and every reasonable intendment is indulged in favor of an award." Further, the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the] respondent and must be met by clear and convincing proof."

In this case the employer commenced a special proceeding in an effort to vacate an arbitration award that provided for the temporary suspension of an employee without pay for “the balance of the school year” and required the employee to attend an anger management class.

The employer appealed in an effort annul the penalty imposed by the arbitrator, contending that under the circumstances this "punishment did not fit the crime" that the arbitrator's decision was irrational given the sworn testimony of various witnesses concerning the employee’s [mis]behavior, and argued that the "shockingly lenient penalty" was enough to shock the court's conscience and violated public policy. In lieu of the penalty imposed by the arbitrator, the employer sought the termination of the employee.

In rebuttal, the employee argued that the arbitrator’s decision to suspend him without pay and require his participation in anger management training was well within the bounds of the arbitrator’s decision making authority and should not to be upset by the court.

Judge Bartlett observed that “Under CPLR §7511, the court may scrutinize an arbitration award only on the narrow grounds specified in subdivision (b) and only upon the application of a party.” As to the employer’s public policy argument, the court pointed out that in Civil Serv. Empls. Assn., Town of Callicoon Unit, 70 NY2d 907, the Court of Appeals held that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

In addition, Judge Bartlett commented that “every reasonable intendment is indulged in favor of an award” and that in this instance the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the employer] and must be met by clear and convincing proof,” citing Matter of Mencher, 276 App.Div. 556, 96 N.Y.S.2d 13.

As to the employer’s claim that the arbitrator’s award was violative of public policy, Judge Bartlett observed that an arbitration award will be vacated on public policy grounds only where such policy "prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator."

As to the arbitration award at issue, Judge Bartlett held that “upon review of the arbitration decision on its face, it cannot be said as a matter of law that public policy precludes its enforcement,” explaining that in this instance the hearing officer determined that an effective suspension for almost four months without pay plus remedial action in the form of required anger management training was the appropriate penalty.

Noting that there was no evidence that the employee previously or subsequently engaged in similar conduct, and that the employee had expressed his remorse and complied with the penalties imposed by the arbitrator, the court said that the fact that the employer disagreed with the arbitrator’s determination “does not empower this Court to dismantle the process.”

Accordingly, Judge Bartlett denied the employer’s application in its entirety.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50666.htm