Employee terminated after being found guilty of misuse of funds

Employee terminated after being found guilty of misuse of funds

OATH Index No. 494/13

The New York City Department of Educationcharged a custodial engineer with the misuse of funds. 

OATH Administrative Law Judge Kevin F. Casey found that the custodian failed to repay more than $43,000 he owed to the Department in excess funds, that he wrote a check to the Department for $43,620, knowing that there were insufficient funds in his account to cover the check, and that he overpaid himself by $14,000

The Department apportions funds to custodian engineers based on the square footage of buildings that they maintain. Funds are kept in a custodial bank account which custodian engineers can access online. Custodian engineers must repay the Department any excess funds that they receive each year. In this instance the custodian acknowledged overpaying himself and his staff.

Judge Casey recommended termination of the employee, which recommendation was adopted by the Chancellor of the New York City Department of Education.

.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-494.pdf

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation
Kigin v State of N.Y. Workers' Compensation Bd., 2013 NY Slip Op 05360, Appellate Division, Third Department

In this challenge to a determination by the Workers’ Compensation Appeal Board, one of the arguments advanced by the claimant denied certain benefits was that the Board lacked the authority to promulgate the regulations and the “incorporated Guidelines” relied upon by the Board for its ruling, contending that they were inconsistent with the enabling legislation and the workers' compensation statutory scheme.

Addressing this argument, the Appellate Division said that “[a]lthough administrative agencies have no inherent legislative power, they have ‘all the powers expressly delegated to [them] by the Legislature and are authorized to ‘fill in the interstices in the legislati[on]’ by promulgating rules and regulations consistent with their enabling legislation.”

Further, said the court, "[I]t is not always necessary that the Legislature provide precise guidelines to an agency charged with carrying out the policies embodied in a legislative delegation of power. In certain technical areas, where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

Also, said the Appellate Division, courts will uphold regulations that are consistent with and supplemental to the relevant statute “provided they have a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated."

The Appellate Division ruled that the Board acted within its legislatively conferred authority in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05360.htm

Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Andrew M. Cuomo announced that the Department of Financial Services (DFS) has approved health insurance plan rates for 17 insurers seeking to offer coverage through New York’s Health Benefits Exchange, including eight new entrants into the market that do not currently offer commercial health insurance plans.

In 2012 Governor Cuomo took action to issue an Executive Order establishing the New York Health Benefit Exchange, which is expected to help more than one million uninsured New Yorkers access quality, affordable health care coverage.

The following companies had health insurance plan rates for the health benefits exchange approved today by DFS. The rates approved are subject to final certification of the insurers’ participation in the exchange.

· Aetna

· Affinity Health Plan, Inc.

· American Progressive Life & Health Insurance Company of New York

· Capital District Physicians Health Plan, Inc.

· Health Insurance Plan of Greater New York

· Empire BlueCross BlueShield

· Excellus

· Fidelis Care

· Freelancers Co-Op

· Healthfirst New York

· HealthNow New York, Inc.

· Independent Health

· MetroPlus Health Plan

· MVP Health Plan, Inc.

· North Shore LIJ

· Oscar Health Insurance Co.

· United Healthcare

Enrollment for the exchange begins on October 1, 2013 for coverage that will be effective January 1, 2014.

Additional information about the New York Health Benefit Exchange is available on the Internet at: www.HealthBenefitExchange.ny.gov

An article, Municipalites Need to be Well Positioned in 2013 to Address the Health Care Reform Act, has been posted on the Internet by NYMuniBlog, a LawBlog published by Harris Beach PLLC, a law firm, as a public service, at http://nymuniblog.com/?p=2869

The U.S. Department of Health and Human Services Internet page dedicated to the Affordable Health Care Act is at: http://www.hhs.gov/healthcare/rights/law/index.html

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 19, 2013 [Click on text highlighted in bold to access the full report] 

A.G. Schneiderman & State Comptroller DiNapoli Announce Arrest of Not–For–Profit Executive in Five–Year Public Corruption Scheme

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Tuesday announced the arrest of a nonprofit executive accused of pocketing tens of thousands of dollars in taxpayer funds intended for public services in New York City. The joint investigation conducted by the Office of the Attorney General and the State Comptroller–s office revealed that Van R. Holmes —— the president of the Young Leaders Institute, Inc. —— stole more than $85,000 by creating dozens of false records and forged documents which he filed with State and City agencies in order to obtain public money.

DiNapoli: Binghamton Facing Fiscal Challenges, But Outlook Improving

The city of Binghamton is grappling with high rates of unemployment and poverty, but its outlook is improving as it builds up reserve funds, according to a fiscal report issued Thursday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on cities across the state.

DiNapoli: Lax Board Oversight Allowed Former Village of Old Field Treasurer to Steal Nearly $60,000

Poor oversight by the Board of Trustees of the Village of Old Field allowed its former Treasurer Andrea Brosnan to steal nearly $60,000 in village funds without detection, according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. The findings of the audit were shared with Suffolk County District Attorney Thomas J. Spota whose office charged Brosnan with second–degree grand larceny, first–degree falsifying business records, defrauding the government and official misconduct on May 22. Criminal proceedings are pending.

DiNapoli: State Tax Receipts Down in June, but Overall State Fiscal Picture Positive

Personal Income Tax and business tax collections were down in June compared to last year, but the state’s General Fund balance ended the month higher than anticipated, in part because of a $250 million regulatory settlement, according to the June cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Questionable Charges for Rochester Special Education Provider

The Norman Howard School, a Rochester–based special education provider, submitted more than $200,000 in improper charges over a three–year period, mostly for salaries that went to uncertified teachers, according to an auditreleased Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Budgeting Problems at East Ramapo Central School District

Poor financial practices by the East Ramapo Central School District, including inaccurate budget estimates, have left the district with operating deficits for the past two years and could jeopardize future district operations, according to an auditreleased Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Improperly Overpaid Oneonta Dentist $66,000

The state Department of Health improperly paid an Oneonta dentist $66,402 for 2,361 inflated or questionable Medicaid claims he submitted for unwarranted services, including “behavior management,” and dentures that were not delivered to the recipients, according to an auditreleased Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Urges President Obama To Direct Federal Agencies To Adopt “Place Of Celebration” Standard For Recognition Of Same–Sex Marriages

New York State Comptroller Thomas P. DiNapoli Friday released a letterto President Barack Obama calling on him, in light of the recent Supreme Court decision overturning the Defense of Marriage Act, to direct all federal agencies under his control to adopt a marriage “Place of Celebration” standard. This would require federal agencies and programs to recognize all valid same–sex marriages, regardless of the current residence of the same–sex spouses.

Comptroller DiNapoli Releases Municipal Audits

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

the Jefferson Fire District and

the Town of Lagrange.

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] nominated by Governor Cuomo

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] to be nominated by Governor Cuomo

On July 19, 2013 Governor Andrew M. Cuomo announced the appointments of Courtney Burke as the administration’s new Deputy Secretary for Health, Laurie Kelley to serve as the Acting Commissioner of the Office for People with Developmental Disabilities (OPWDD) and Dr. Ann Sullivan to serve as the Acting Commissioner of the Office of Mental Health.

The Governor intends to nominate both Ms. Kelley and Dr. Sullivan to serve as Commissioners of OPWDD and OMH, respectively, during the next legislative session. Their nominations are subject to confirmation by the New York State Senate.

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Galindo (Board of Higher Educ., City Univ. of N.Y.--Commissioner of Labor), 108 AD3d 906

"Services rendered for an educational institution by a person who is enrolled and is in regular attendance as a student in such an institution" does not constitute employment within the meaning of the Labor Law §511(15) for the purposes of an individual’s eligibility for unemployment insurance benefits. Whether a claim for unemployment insurance benefits is within the ambit of this exclusion depends on the facts and circumstances of the employment to determine whether the primary purpose of the work was to earn a living or to further the claimant's education.

A claimant for unemployment insurance benefits challenged the Workers’ Compensation Appeal Board’s determination that she was ineligible to receive unemployment insurance benefits.

The claimant began working as an office assistant for the City University of New York [CCNY] and about a year later began taking classes at a community college affiliated with CUNY. The claimant continued working full time for CUNY, thereby obtaining a tuition fee waiver.

When the claimant earned her degree, her employment with CUNY “was discontinued by agreement” and she filed for unemployment insurance benefits. The claimant’s application was denied as excluded under Labor Law §511(15) and she appealed the Board’s determination.

The Appellate Division sustained the Board’s ruling, explaining that “the record contains substantial evidence supporting the factual finding of the Board that claimant was ‘in regular attendance as a student’ and, therefore, ineligible for benefits pursuant to the statute.”

Accordingly, the Appellate Division declined to “disturb” the Board’s determination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05269.htm