Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 8, 2014

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Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:

the Town of Amenia;

the Jericho Water District; Town of Poland; and

the Town of Porter.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday, March 6, 2014, announced his office completed audits of:

the Ausable Valley Central School District;

the Frontier Central School District; and

the Utica City School District.

DiNapoli Announces $15 Million Investment in Northern Ireland

New York State Comptroller Thomas P. DiNapoli Tuesday, March 4, 2014, announced that the New York State Common Retirement Fund is investing $15 million (£9 million) with Northern Ireland venture capital firm Crescent Capital.

DiNapoli: Nearly $1 Million in Questionable Payments Result from Poor Monitoring by OASAS

Samaritan Village Inc., a contractor of substance abuse treatment for the Office of Alcoholism and Substance Abuse Services (OASAS), was paid nearly $1 million in inappropriate and questionable expenses over a one–year period, according to an auditreleased Monday, March 3, 2014, by State Comptroller Thomas P. DiNapoli. The questionable expenses included more than $400,000 given to clients to spend on day trips and transportation.

DiNapoli: Audits Reveal Problems with Local IDAs

Industrial Development Agencies (IDAs) in Dutchess, Greene and Putnam counties granted questionable tax incentives and failed to enforce job creation goals, according to audits released Tuesday, March 4, 2014, by State Comptroller Thomas P. DiNapoli. DiNapoli renewed his call for better accountability for IDAs and urged the State Legislature to consider his proposed IDA reform legislation.

DiNapoli Calls for Improvements to Capital Planning Process

Over the past 10 years, New York spent an estimated $81.7 billion — including tax dollars, federal aid and long–term borrowing proceeds — to support its capital program, with another $9.6 billion proposed for the upcoming fiscal year, according to a reportreleased Thursday, March 6, 2014, by State Comptroller Thomas P. DiNapoli. The report, which reviews New York’s capital spending over the past decade and plans for the coming years, concludes that reforms are needed to ensure that New York State is spending its billions of capital project dollars wisely.

State Pension Fund Makes New Commitment of $10 Million for Investments in New York Companies

New York State Comptroller Thomas P. DiNapoli announced Thursday, March 6, 2014, a $10 million commitment to venture capital firm Tribeca Venture Partners (TVP) through the New York State Common Retirement Fund’s (Fund) In–State Private Equity Program. TVP will use the funds to provide early stage venture capital funding to New York state–based companies. This is the Fund’s second commitment to TVP.

DiNapoli Statement on Special Education Provider Guilty Plea in Federal Court

New York State Comptroller Thomas P. DiNapoli Friday, March 7, 2014, issued the following statement on the guilty plea to mail fraud in federal court by Cheon Park, the owner of Bilingual SEIT & Preschool Inc., which stemmed from a referral from DiNapoli’s office.
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Fraternization on the job

Fraternization on the job

OATH Index No. 391/14

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him.

AJJ recommended that the correction officer be termination from employment.

Other disciplinary actions taken against employees as a result of alleged fraternization on the job are posted on the internet at:

http://publicpersonnellaw.blogspot.com/2012/03/applying-employers-anti-fraternization.html

http://publicpersonnellaw.blogspot.com/2010/01/correction-officer-dismissed-after.html

http://publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html

and

http://publicpersonnellaw.blogspot.com/2010/02/hearing-officer-recommends-termination.html

Decision 391/14 is posted on the Internet at:

http://archive.citylaw.org/oath/14_Cases/14-391.pdf
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BOCES takeover of school district positions

BOCES takeover of school district positions

Decisions of the Commissioner of Education, Decision No. 16,592

A tenured certified physical education and health teacher [Petitioner] taught in a .2 physical education and .8 health position. Subsequently the school district reduced her position to a .5 health teacher position and ultimately Petitioner was notified that “due to fiscal resources” the board had adopted a resolution abolishing the .5 position and that her name would be placed on a preferred eligible list.

Learning that teachers employed by a BOCES would teach physical education in kindergarten through fifth grade in the district in the following academic year, Petitioner filed an appeal with the Commissioner of Education contending that the school board had  “improperly circumvented her tenure and seniority rights” by making an improper arrangement with the BOCES to provide teachers to teach the courses she had previously taught.

In addition, Petitioner alleged that the school district “improperly assigned” another physical education teacher in the district to teach seven physical education classes in violation of the terms of the relevant collective bargaining agreement.

Petitioner also argued that because BOCES took over “a single teaching job” and not the district’s entire physical education program, there was no permissible BOCES takeover within the meaning of Education Law. 

After addressing a number of procedural matters, the Commission addressed the merits of Petitioner’s allegations and dismissed her appeal.

Noting that Petitioner had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which Petitioner sought relief, the Commissioner held that Petitioner failed to meet these burdens.

The Commissioner explained that Education Law §1950 provides that a BOCES “for the purpose of carrying out a program of shared educational services in the schools of the supervisory district ... at the request of component school districts and with the approval of the Commissioner of Education,*may provide certain services on a cooperative basis, including physical education services.”

Further, said the Commissioner, “prior case law has held that an entire tenure area need not be transferred to a BOCES in order to constitute a permissible BOCES takeover.”

Accordingly, the Commissioner ruled that the school district’s transfer of its pre-kindergarten through fifth grade physical education classes to the BOCES, while retaining physical education for grades six through twelve constitutes a permissible takeover by the BOCES within the meaning of Education Law §3014-a.

Turning to Petitioner’s claim that the takeover was invalid because a district teacher continued to teach seven physical education classes in alleged violation of the collective bargaining agreement, the Commissioner found that “upon the record” before him it appears that relevant provision of the district’s collective bargaining agreement permitted the challenged assignment.

Petitioner, said the Commissioner, also failed to demonstrate that the transfer to the  BOCES of the school district’s pre-kindergarten through fifth grade physical education program was for an illegal purpose.

The school district had indicated that that the takeover of the elementary physical education program by the BOCES was expected to result in a significant cost savings to the district. Although Petitioner disputed the actual cost savings, the Commissioner said that she had not met her burden of establishing that school district’s expectation of savings was a ruse for an illegal purpose.

The bottom line: The Commissioner held that “After careful review of the record, I can not conclude that the BOCES takeover of [the school district’s] pre-kindergarten through fifth grade physical education program, pursuant to Education Law §3014-a, was impermissible.” Thus abolishing Petitioner’s position and her placement on its preferred eligibile list was ruled proper.

* The records of the Education Department revealed that, pursuant to Education Law §1950(4)(d)(1) and (4)(bb), a cooperative services application was approved for the BOCES to provide, among other things, shared itinerant physical education services to component districts, including Petitioner’s school district.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16592.pdf
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Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

2014 NY Slip Op 01234, Appellate Division, Third Department

An attorney [Petitioner] provided legal services to a central school district on a part-time basis from 1969 until his retirement in 2006. Following a review of Petitioner's relationship with the school district the Comptroller determined that Petitioner was an independent contractor and not an employee and, therefore, was not entitled to membership in the New York State and Local Employees' Retirement System and thus ineligible for retirement pension benefits.

Plaintiff appealed and the Appellate Division said that “on this record, we cannot conclude that the Comptroller's determination that Petitioner was an independent contractor and not an employee of the school district was supported by substantial evidence” and annulled the Comptroller’s decision.

The Appellate Division explained that it had recently said that “[w]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship," citing Mowry v DiNapoli, 111 AD3d 1117. Rather, said the court, “such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means"

In other words, said the court, "over-all control is sufficient to establish the employee relationship where [professional] work is concerned."

Factors considered by the Appellate Division in vacating the Comptroller’s decision included:

1. Testimony by the school district's former superintendent, who worked with Petitioner for nearly four decades, that during his tenure he supervised all staff at the school district, including Petitioner and Petitioner was required to attend all regular and special meetings as part of his employment;

2. Petitioner's biweekly paycheck included withholdings for FICA, Medicare, and federal and state income taxes;

3. Petitioner received health insurance benefits and participated in a tax shelter annuity program that was available to employees of the school district;

4. Although Petitioner did not have set hours, both he and the former superintendent testified that he was available on an as-needed basis.

5.Petitioner would receive a paycheck for a pay period even if he did not perform work for the school during that period;

6. Petitioner was required to report to the Superintendent of the school district, as well as the school district's Board of Education, and his work was subject to approval by the Board;

7. Petitioner was reappointed every year at annual reorganization meetings and took an oath of office annually; and

8. Although Petitioner used his own law office and staff, the competent testimony established that Petitioner was provided with school stationary and that, on occasion, he used school facilities and resources.

In contrast, the court said that the Retirement System relied on the testimony of two employees of the Comptroller, both of whom admitted that they neither spoke with Petitioner nor his former or current supervisors and although the Retirement System also relied on information retrieved from current employees at the school district's administrative offices, none of these employees testified at the hearing.

Noting that the Retirement System failed to provide testimony from anyone with direct knowledge regarding Petitioner's engagement with the school district, the Appellate Division ruled that the Comptroller's determination was not supported by substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01234.htm
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