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 August 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Report on NY Power Authority

New York State Comptroller Thomas P. DiNapoli Thursday issued a report on the New York State Power Authority (NYPA). The report examines NYPA’s finances, money transferred to support the state budget and expenses related to employee benefits and travel, including a private plane.

DiNapoli Finds Lax Oversight of Private Career Schools

Private career schools in New York are operating without licenses and more than half are ignoring reporting requirements on job placement and graduation rates, according to an audit released Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors also found hundreds of public complaints that have been unresolved, some for more than a decade, with little or no action. The findings of the audit have been referred to Attorney General Eric Schneiderman’s office for further review.

DiNapoli: Poor Budget Practices Found in Halfmoon

The Town of Halfmoon is facing a deficit in its rainy day fund due to budgeting errors and the absence of a long–range financial plan, according to an audit released Tuesday by State Comptroller Thomas P. DiNapoli.

DiNapoli Audit Questions Special Education Contractor Charges

The John A. Coleman School, a special education provider based in Westchester County, submitted almost $640,000 in unwarranted charges to area school districts and New York City, including more than $500,000 for employee bonuses, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli.
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From the BLOGS:

From the BLOGS:

NYMUNIBLOG has posted a new item, '"Reality Check' on the Meaning behind the Drop in State Test Scores'" authored by Howard J. Goldsmith.

Mr. Goldsmith states:

“There is a lot of recent press coverage on the meaning, significance, and/or the lack of significance on the recently released results from the 2013 administration of the grades 3 to 8 mathematics and English Language Arts tests.

”While many students may feel poorly, teachers may feel defeated, districts may be blamed, parents may be confused, and politicians may be pointing fingers, the low scores were to be expected. In addition, and the most unfortunate part about all the attention and misplaced focus and priority being placed upon the results released by the State Education Department, these scores are not useful to educators for teaching and learning.”

The full text of Mr. Goldsmith’s post is on the Internet at:
http://nymuniblog.com/?p=3423

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Substantial evidence required to support a finding of guilt in a disciplinary proceeding

Substantial evidence required to support a finding of guilt in a disciplinary proceeding

34 AD3d 580; 34 AD3d 672

The Town of Islip filed disciplinary charges against an employee pursuant to Section 75 of the Civil Service Law. The charges alleged that the employee had "engaged in misconduct by accepting salary payments from the Town [of Islip] to which he was not entitled." A hearing officer conducted a disciplinary hearing and found the employee guilty of misconduct and recommended that the Town terminate his employment.

The Town adopted the hearing officer’s findings and recommendation and dismissed the employee from his position. the employee sued, contending that the record lacked substantial evidence to support this determination.

The Appellate Division, Second Department, agreed. It ruled that “Under the facts of this case, the determination that [the employee] engaged in misconduct was not supported by substantial evidence.” It annulled the Town’s determination and directed that it reinstate the employee

What constitutes “substantial evidence” for the purposed of a Section 75 disciplinary determination?

This question was considered in the decision in 34 AD3d 580. Here the Appellate Division, Second Department, commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

Concluding that the disciplinary determination finding the accused employee guilty of disciplinary charges was supported by substantial evidence and, additionally, the imposed penalty of dismissal was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing the Pell Doctrine (Matter of Pell v Board of Educ., 34 NY2d 222), the Appellate Division dismissed the plaintiff's petition.

The decision in 34 AD3d 580 is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08243.htm

The decision in 34 AD3d 672 is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08766.htm

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Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Keskin v State of New York, NYS Court of Claims, 14 Misc3d 537

New York State’s "whistleblower" statutes” (Civil Service Law §75-b;* Labor Law §740) provide certain protections to an employee who discloses to a governmental body (Civil Service Law §75-b) or discloses or threatens to disclose to an employer or public body (Labor Law §740), information concerning a violation of a law, rule or regulation.

Kimberly Ann Keskin brought an action in the State’s Court of Claims seeking damages available to whistleblowers pursuant to Civil Service Law §75-b and Labor Law §740. As turned out, she sued in the wrong court.

Justice Philip J. Patti agreed with the State defendants that the Court of Claims "has no subject matter jurisdiction over a claim asserted under Civil Service Law §75-b," relying upon a decision by Judge John L. Bell in Taylor v State of New York (160 Misc 2d 120).

In Taylor, Justice Bell ruled that the State Legislature had not given the Court of Claims jurisdiction to adjudicate claims brought under Section 75-b. Accordingly, he concluded that “a claimant who contemplates an action under the statute would be well advised to institute an action in the Supreme Court rather than the Court of Claims.”

* §75-b 2.(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26480.htm

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