An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability

An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability*

Coles v New York State Div. of Human Rights, 2014 NY Slip Op 07788, Appellate Division, Fourth Department

Geraldine Colescommenced this proceeding pursuant to Executive Law §298 seeking to annul the determination of the Commissioner of the State Division of Human Rights [SDHR] that she failed to establish that her employer, the Erie County Sheriff's Office (ECSO), discriminated against her based on a disability.

Although initially the Division’s investigators found that Cole had alleged probable cause a Division Administrative Law Judge (ALJ) found that Coles did not establish that ECSO failed to provide her with reasonable accommodations for her disability.** The Commissioner of SDHR adopted the ALJ’s findings and recommendation and dismissed Coles complaint.  We now confirm the determination.

Confirming the Commissioner’s decision, the Appellate Division said that "[i]n reviewing the determination of SDHR's Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence."

ECSO did not dispute that Coles condition constituted a disability and Coles did not dispute that as a deputy sheriff assigned to the position of "inmate escort" at ECSO's correctional facility, her disability does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability. Further, said the Appellate Division, Coles did not dispute the representation that she cannot perform the essential functions of an "inmate escort" without presenting a direct threat to her own safety and others in the workplace.

The accommodation Coles sought was for ECSO to assign her to a “light-duty position.”

The Appellate Division observed that “[i]t is well settled that an employer is neither required to create a new light-duty position to accommodate a disability … nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities.

Noting that ECSO maintained a "light-duty" program,*** the court said that the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a "Transitional Duty Assignment (TDA)" until the employee is medically released to resume his or her regular duties. Significantly, the Appellate Division said that “The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one,” explaining that the expressed intent of ECSO's policy “is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation."

The Appellate Division concluded that there was no basis to disturb the Commissioner's determination that Coles’ disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Thus, said the court, ECSO was not required under the Americans with Disabilities Act (42 USC §12101 et seq.) or the New York State Human Rights Law (Executive Law §296) to accommodate her disability by creating such a light duty position for her.

* See also County of Erie v New York State Div. of Human Rights, 2014 NY Slip Op 07829, Appellate Division, Fourth Department

** Executive Law §296(3)(b) requires employers to make reasonable accommodations to permit the employment of disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined as an action that permits an employee with a disability to perform the duties of his or her job position in a reasonable manner.

*** ECSO Policy # 03-01-07, Light Duty Assignments

The Doles decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07788.htm

The County of Erie decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07829.htm

 

The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard

The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard
Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, Appellate Division, Third Department

This CPLR Article 78 petition was transferred to the Appellate Division by the Supreme Court to review a determination made by John P. Franck, Commissioner of Accounts for the City of Saratoga Springs, terminating City of Saratoga Springs Real Property Clerk Mary M. Zlotnick’s employment.

Zlotnick, believing that an individual representing certain condominium owners was receiving preferential treatment from the City's Assistant Assessor, Anthony Popolizio without going through a formal grievance process initially expressed her concerns to the City's Deputy Commissioner of Accounts, Sharon Kellner-Chille, who, in turn, contacted Franck. The Commissioner met with Zlotnick and explained the difficulties that City had experienced with condominium assessments in the past and advised her that the representative* in question was participating in an informal — and entirely permissible — grievance process.

Zlotnick, however, was not persuaded by the Commissioner’s explanation and ultimately brought her suspicions regarding this procedure to, among others, the Saratoga County District Attorney and the Attorney General.

In June 2012 Franck preferred disciplinary charges against Zlotnick alleging that she had violated City policy by making personal use of the Internet during working hours, and suspended her for a period of one week without pay. A disciplinary hearing was held in August 2012 and the Hearing Officer found Zlotnick guilty of the charges and recommended a one-week suspension without pay, such penalty to be satisfied by the earlier imposed suspension without pay. Franck adopted the findings and recommendation of the hearing officer.

In the course of the hearing Zlotnick testified as to her ongoing concerns regarding the manner in which condominium assessments were being reduced. Upon reviewing a transcript of her testimony, Franck  again investigated Zlotnick's allegations and, in so doing, "looked at every [assessment] reduction from December 27, 2010 through mid August 2012 to [ascertain] if they were done properly."

Franck advised Zlotnick that additional disciplinary action would be taken against her. Subsequently Zlotnick was served with a notice of discipline setting forth five specifications of misconduct and, or, insubordination. She was suspended for 30 days without pay and after a lengthy hearing, the Hearing Officer issued a report sustaining three of the five preferred charges and recommended that Zlotnick be terminated from her employment. The Commissioner adopted the Hearing Officer's recommendation and terminated Zlotnick from her position. Zlotnick than appealed the Commissioner‘s action, contending, among other things, Franck, having investigated Zlotnick's initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against her and testified at her disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer's recommendation and rendering a final determination in this matter.

The Appellate Division found merit in these claims, noting that “whether disciplinary charges are pursued in the judicial or administrative realm, ‘[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions‘."

Citing Baker v Poughkeepsie City School District, 18 NY3d 714, the court said that “[a]lthough a particular individual's involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that "individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges." Thus, explained the court, when an officer institutes the disciplinary action and testifies at the hearing, he or she must disqualify himself or herself from reviewing the Hearing Officer's recommendations and rendering a final determination."

In an effort to nonetheless sustain the underlying determination, the Commissioner attempted to invoke the "Rule of Necessity." This rule provides a limited exception to the requirement of an unbiased adjudicator by permitting “a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard” and favors of delegating adjudicatory authority to others whenever possible.

Here, Franck contended, the only individual to whom he could have named to review the hearing officer’s determination was Deputy Commissioner Kellner-Chille and she had also provided extensive and detailed testimony in support of the charges against Zlotnick and thus the rule of necessity permitted the Commissioner to undertake that task here.

The Appellate Division disagreed. The court noted that in Gomez v Stout, 13 NY3d 182, the Court of Appeals interpreted Civil Service Law §7 (2) to "require that the power to discipline be delegated, if necessary, with the governmental department's chain of command….” here the parties debate whether, consistent with the provisions of the Saratoga City Charter, there is a body or officer to whom the Commissioner validly may delegate the power to review the report and recommendation issued by the Hearing Officer. Finding that the  Commissioner have failed to demonstrate — on this record — that no such body or officer exists, the Appellate Division said that it was unable to conclude that the rule of necessity may be properly invoked here.

The court remitted the matter to the City "for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual [or body]" to be designated by the Commissioner.“

In the course of this appeal Zlotnick raised an number of other issues that were considered by the court, including the following, that it may instructive to consider.

1. The underlying notice of discipline were so vague as to deprive Zlotnick of a fair hearing. The court, agreeing with the Hearing Officer, said that the notice of discipline and the subsequently furnished bill of particulars "could have been more illuminating" but the notice of discipline and the individual charges at issue "need only be reasonably specific, in light of all the relevant circumstances[,] to apprise [petitioner] of the charges and enable . . . her to adequately prepare a defense."

The Appellate Division concluded that “Viewing the notice of discipline, the corresponding bill of particulars and the materials supplied therewith against the backdrop of petitioner's prior disciplinary proceeding,” it was satisfied that Zlotnick was afforded adequate notice of the misconduct alleged with respect to the sustained specifications (set out in charges Nos. 1, 2 and 4) and thus this aspect of Zlotnick‘s due process claim must fail.

2. Zlotnick asserted that the Hearing Officer should have been disqualified for a myriad of reasons that generally fall under the heading of exhibiting bias or creating the appearance of impropriety.

The Appellate Division commented that "… hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination.” The challenger must provide factual support for his or her claim of bias and prove that the outcome flowed from that bias. The court said that "[b]ased upon our review of the record as a whole, we do not find that [Zlotnick] made such a showing here.

3. Zlotnick argued that the Hearing Officer should have been disqualified due to an alleged affiliation between the Hearing Officer's spouse and respondents' counsel.

The court said that Zlotnick did not seek disqualification upon this ground at the administrative hearing and, hence, this issue is unpreserved for its review. The Appellate Division then noted that  the Commissioner averred that “he selected the Hearing Officer based upon a recommendation from a local attorney and that he did not discuss the Hearing Officer's designation with ‘any attorney or representative‘ of the law firm representing respondents in this matter prior to making such designation.”

4. Zlotnick argued that the Hearing Officer should have been disqualified based upon the fact that he presided over the first of her disciplinary hearings.

The Appellate Division rejected this argument, explaining that “absent record evidence that the Hearing Officer may have prejudged the matter under review, ‘an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges.’" To the extent that the record reflects that the Hearing Officer may have considered petitioner's overall employment record or the prior disciplinary proceeding in fashioning a penalty, the court said that it could discern no impropriety in this regard.

* The court, in a footnote, commented “the Commissioner conducted an initial investigation, spoke with [Assistant Assessor, Anthony] Popolizio and "satisfied" himself that "everything was being done above board." 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08289.htm

___________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

___________________ 

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

OATH Index No. 2614/14

A supervisor was served with disciplinary charges alleging she had included confidential information about agency clients in an email to supervisors that she had “e-mail copied” to her attorney.

Acknowledging that she had sent the email contained confidential information, she argued that she had not redacted the confidential information in the copy of her communication sent to her attorney because she considered her communications with her attorney to be privileged and confidential.

Oath Administrative Law Judge Ingrid M. Addison explained that the attorney-client privilege “enables one seeking legal advice to communicate with counsel ... secure in the knowledge that the contents of the exchange will not be revealed against the client’s wishes and that the communication over which privilege is asserted must have been made for the purpose of obtaining legal services and advice in the course of a professional relationship.

Judge Addison ruled that the e-mail the accused employee sent to her attorney was not privileged because it was directed to her supervisors, not her attorney, and was not an attempt to solicit legal advice of her attorney nor could it be interpreted as such. 

The ALJ found the supervisor was insubordinate when she walked out of a meeting with supervisors after being warned not to.

However Judge Addison dismissed a second charge alleging insubordination involving the supervisor's walking out of a meeting with her superior when another supervisor was called in to what was to be a “one-on-one” meeting with the superior.

The ALJ recommended that the supervisor be suspended without pay for 23 day, consisting of a 3-day suspension without for with respect to charges of insubordination related to her walking out of the meeting with a group of supervisors and a 20-day without pay for "wanton disregard" of the employer’s rules when she a copy of an e-mail to other supervisors that contained confidential agency information to her attorney.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2614.pdf

Failing to report for a medical examination

Failing to report for a medical examination

OATH Index No. 1402/14

A food service manager was found to have failed to report for scheduled medical examinations, that he was ordered to attend pursuant to §2568 of the Education Law, on three occasions.

Further, Administrative Law Judge Faye Lewis found that the manager had not been at work for more than two years.

After having had his disciplinary hearing postponed, the manager did not appear at his hearing scheduled for July 23, 2014.

On the day before the rescheduled trial date, his attorney requested another adjournment of the trial because the manager was in Ohio caring for his ailing mother and was unable to make other care taking arrangements.

The adjournment request was denied for lack of good cause when the manager declined to avail himself of the opportunity to participate at the hearing via telephone.

Other cases involving disciplinary action following an employee’s failure to report for a medical examination include Santiago v. Koehler, 155 A.D.2d 24, O'Neill v City of Schenectady, 194 AD2d 1044, and Decisions of the Commissioner of Education, Decision #13005.

Judge Lewis recommended termination of the food service manager’s employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1402.pdf
.

Appealing the denial of an application for General Municipal Law §207-c disability benefits

Appealing the denial of an application for General Municipal Law §207-c disability benefits
Lowther v County of Rockland, 2014 NY Slip Op 08018, Appellate Division, Second Department

The Rockland County Sheriff denied Deputy Sheriff Charles Lowther’s application for disability benefits pursuant to General Municipal Law §207-c. A hearing officer confirmed the Sheriff’s determination and Lowther appealed the arbitrator’s ruling.

The Appellate Division sustained the arbitrator’s decision and dismissed Lowther ’s appeal “on the merits.”

As a procedural matter, the court first explained that it would treat this appeal as one that had been transferred here by the Supreme Court and would review the administrative determination de novo *

The standard of review in an administrative determination made after a hearing is limited to the Appellate Division's considering whether the determination was supported by substantial evidence. The test of whether an administrative determination is supported by substantial evidence is whether, on the record, a reasonable person might have made the findings and conclusions made by the administrative agency.

The Appellate Division then observed that in order to be eligible for disability benefits pursuant to General Municipal Law §207-c, a covered municipal employee must prove a direct causal relationship between his or her job duties and the resulting alleged illness or injury. In this instance the court found that the arbitrator's determination that Lowther was not entitled to benefits pursuant to General Municipal Law §207-c was supported by substantial evidence in the record.

In contrast, where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis, which questions are to be initially addressed in Supreme Court.

* When a petition raises a question of whether an administrative determination made after a hearing is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08018.htm

________________________

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure

Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure

Kilduff v Rochester City Sch. Dist., 2014 NY Slip Op 08056, Court of Appeals

The Rochester City School District notified Roseann Kilduff, a tenured school social worker,that she was to be suspended for 30 days without pay for certain alleged misconduct. In response to Kilduff’s written request for a hearing pursuant to Education Law §3020-a., the School District advised her that she was not entitled to have this disciplinary action processed pursuant to §3020-a  but could challenge the School District’s disciplinary determination by availing herself of the disciplinary grievance procedures set out in the collective bargaining agreement (CBA) between the School District and the Rochester Teachers Association.

The CBA provided, in relevant part, that "Except as provided elsewhere in this Section, any disciplinary action imposed upon any eligible teacher may be processed as a grievance and arbitration procedure.”*

The Court of Appeals, affirming a ruling by the Appellate Division, said that §3020(1)** of the Education Law, as amended, requires that all CBAs becoming effective on or after September 1, 1994, permit eligible employees facing discipline the right to elect the disciplinary review process provided by Education Law §3020-a.notwithstanding a provision in the CBA to the contrary. 

The Appellate Division had explained that inasmuch as the controlling CBA took effect in 2006, Kilduff, “in the court's view,” had the right pursuant to Education Law §3020(1) to choose the §3020-a disciplinary procedure in lieu any alternative grievance procedure contained in the CBA. Accordingly, said the Appellate Division, Rochester's failure to honor Kilduff’s request, it was required by law to respect, mandated the annulment of the disciplinary action taken against her.

In the words of the Court of Appeals, “the statute unambiguously provides that when a CBA is altered by renegotiation or takes effect on or after September 1, 1994, it must permit tenured employees to elect §3020-a's discipline review procedures, notwithstanding the availability of alternative, CBA-prescribed procedures.”

The court said that while the statute would trump a CBA provision effective on or after September 1, 1994 that relegated a tenured employee exclusively to a non-statutory discipline procedure, “we perceive no reason to conclude that the present CBA in fact does that. It provides merely that a disciplinary action ‘may,’ not that it ‘must,’ be processed in accordance with the agreement's grievance and arbitration provisions which were retained unaltered in the parties' subsequent CBAs.”

Further, in a footnote the majority observed that while the CBA required the §3020-a process where the discharge of a tenured employee was sought, this does not mean, as the School District contended, that it precludes a tenured employee from electing such process where less serious discipline was at issue, in this instance a 30-day suspension without pay.

Accordingly, the court in this 4 to 3 ruling, Judge Smith dissenting in an opinion in which Judges Read and Pigott concur, held that the order of the Appellate Division should be affirmed, with costs.

It should be noted that with respect to eligible employees in the classified service, §76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law “… may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter [emphasis supplied]. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred”.

* The Court of Appeals noted that a subsequent subsection of the CBA provided that “no eligible teacher may be discharged without the process prescribed in Education Law §§3020 and 3020-a..”

** The portion of Education Law §3020(1) relevant to the issues raised in this action states: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation, or in accordance with alternative disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that becomes effective on or after September first, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty-a or the alternative disciplinary procedures contained in the collective bargaining agreement" (emphasis by the Court).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08056.htm

 __________________________ 

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

__________________________

An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits

An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits

Matter of Birnbaum (Commissioner of Labor), 2014 NY Slip Op 07719, Appellate Division, Third Department

Julian R. Birnbaumserved as the Deputy Commissioner for Division Initiated Investigations and Complaints with the New York State Division of Human Rights (DHR) in a “nontenured position classified as management/confidential and served at the discretion of the Commissioner of Human Rights as well as the Governor.

When Birnbaum’s employment ended, he applied for unemployment insurance benefits.

The Department of Labor issued an initial determination finding that Birnbaum was not entitled to receive benefits because his base period employment was in a major nontenured policymaking or advisory position that was excluded under Labor Law §565(2)(e).

An Administrative Law Judge, however, overruled the initial determination and found that Birnbaumwas entitled to receive benefits. On appeal, the Unemployment Insurance Appeal Board rescinded the ALJ's decision and remanded the matter for another hearing to further develop the record. The resulted in the ALJ‘s sustaining the Department of Labor’s initial determination, which determination was subsequently upheld by the Board Birnbaum appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that for purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Whether this exclusion applies typically presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis.

According to the decision, Birnbaum’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR's issuance of exemptions for certain housing providers and, in addition, participated in other agency functions.

The Appellate Division noted that Birnbaum reported directly to the Commissioner, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. Although Birnbaum did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner.

Under these circumstances, said the court, there is a rational basis for the Board's decision that Birnbaum held a major nontenured policymaking or advisory position excluded under Labor Law §565(2)(e).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07719.htm

New York State Comptroller Thomas P. DiNapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli releases municipal audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipalities listed below. Cick on text highlighted in color  to access the full report

Town of Berkshire – Town Clerk (Tioga County)
The town clerk did not properly safeguard taxpayer funds. As a result, auditors could not determine if the clerk is receiving, recording, depositing, disbursing and reporting all the money owed to the town and/or paid to her. In addition, the clerk and code enforcement officer failed to compare the money received for building permits with the permits actually issued.

Bethlehem Public Library – Selected Cash Receipts (Albany County)
The board has established adequate internal controls for processing over-the-counter cash receipts to ensure that all cash collections are properly accounted for and deposited timely and intact. These controls include policies and procedures that provide guidance to the library staff involved in the cash collection process. The procedures also adequately segregate duties within the cash collection process to ensure that no one individual controls all phases of a transaction.

Town of Cherry Valley – Budget Review (Otsego County)
The significant revenue and expenditure projections in the preliminary budget are reasonable, except for the estimated revenues from Federal Emergency Management Agency reimbursements. Although the budget does slightly raise taxes for all funds, town officials did not include a contingency amount in the budget, which would provide for anticipated events and could help to improve the town’s financial position. The town has adopted a local law to override the tax levy limit in 2015.

City of Cohoes – Purchasing (Albany County)
Because city officials did not consistently seek appropriate competition for purchases, they cannot assure taxpayers that they are obtaining the best price possible, as well as the desired quality and quantity, for goods and services. Auditors found the city made purchases totaling $145,759 from three vendors without using competitive bidding or state contract pricing, as required by law.

Town of Deerpark – Budget Review (Orange County)
The revenue and expenditure projections in the proposed budget are reasonable. The town’s preliminary budget complies with the property tax levy limit.

Town of Deposit – Budget Review (Broome County)
The significant revenue and expenditure projections in the proposed budget are reasonable. Additionally, town officials have increased the real property tax levy for the general fund and implemented cost saving measures in the highway funds to help address the town’s declining financial condition. The town has adopted a local law to override the tax levy limit in 2015.

East Aurora Volunteer Fire Department, Inc. – Controls Over Financial Activities (Erie County)
The treasurer did not prepare adequate monthly reports. Auditors found the treasurer’s monthly financial reports consisted of a listing of department bank account balances. However, the department bylaws require the treasurer to keep a complete record of all funds received and disbursed and furnish a report showing this activity at the department’s regular meetings.

Town of East Hampton – Budget Review (Suffolk County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The town’s 2015 tentative budget complies with the property tax cap levy limit.

Town of Edinburg – Justice Court Operations (Saratoga County)
The town justice did not maintain complete and accurate accounting records. Bank reconciliations, month-end accountabilities and reports submitted to the state Justice Court Fund were not accurate. Also, the justice did not maintain adequate case files and did not take appropriate action to ensure that fines and fees were collected in a timely manner.

Village of Fort Ann – Financial Condition (Washington County)
The village board consistently appropriated excessive amounts of fund balance in the general fund to finance operations which caused this fund to be in fiscal stress at the end of the 2013-14 fiscal year. The board also overestimated expenditures for the water and sewer funds with the intention of increasing the levels of fund balance to guard against unforeseen repairs and finance future capital costs.

Town of Islip Industrial Development Agency – Controls Over Payments in Lieu of Taxes (PILOTs) (Suffolk County)
The agency’s process for billing, collecting and recording of PILOTs was efficient and payments were accurately billed and collected. However, PILOT payments were not always distributed to affected taxing jurisdictions within 30 days, as required by law.

Town of Laurens – Budget Review (Otsego County)
The significant revenue and expenditure projections in the tentative budget are reasonable. To address fiscal concerns, the board has proposed real property tax levy increases in the general and highway town-wide funds. However, these increases alone may not fully address the town’s potential for fiscal stress. The town’s tentative budget complies with the property tax levy limit.

Volunteer Firemen’s Benevolent Association of North Tonawanda – Foreign Fire Insurance Tax Moneys (Niagara County)
The board did not ensure that foreign fire insurance tax moneys were spent in accordance with the special act that created the association. Although the 106 payments made during 2013 totaling $49,545 were supported with itemized claims, it is unclear if they were all proper because the association bylaws were not adequately detailed regarding allowable expenditures.

Town of Ogden – Financial Management and Justice Court (Monroe County)
Town officials have not developed adequate policies, procedures or financial plans to govern budgeting practices and the amount of unexpended surplus funds to maintain. The board has repeatedly adopted budgets with unrealistic estimates of revenues, expenditures and the amount of fund balance that would be used. Therefore, the town has levied more real property taxes than necessary and accumulated a significant amount of unexpended surplus funds.


Town of Otsego – Financial Condition (Otsego County)
The budgets for the town’s four operating funds varied significantly from the actual results each year. Over a four-year period, auditors found each of the funds’ estimates generally varied from actual results. For example, the general town-wide and highway part-town funds overestimated revenues and expenditures; the general part-town fund underestimated revenues and overestimated expenditures; and the highway town-wide fund underestimated both revenues and expenditures.

Town of Sardinia – Tax Relief Rebate Program (Erie County)
Auditors reviewed the local law adopted by the town board establishing a tax relief rebate program and a sample of tax rebates issued during the 2013 fiscal year. Because the State Constitution prohibits towns from loaning or giving money to any private corporation or person, including property owners and residents, the town lacked authority to issue the tax refunds to property owners without a special act from the State Legislature.

Village of Schuylerville – Procurement (Saratoga County)
Village officials did not always use competitive procedures for the procurement of goods and services as required by law. Auditors found a contract for public work for $51,150 and two equipment purchase contracts for $50,000 and $109,970 that were not competitively bid. As a result, the village may have incurred higher costs than necessary.

Town of Sidney – Budget Review (Delaware County)
The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the town’s projections for rental income in the hospital fund were not based on amounts expected to be received according to current lease agreements. The town’s preliminary budget complies with the property tax levy limit.

Sidney Fire Department and Related Fire Companies – Financial Activities (Delaware County)
The board did not ensure that cash disbursements and receipts were properly accounted for because it did not implement proper internal controls over the department and the three companies. Auditors found that 134 of the department’s and companies’ expenditures totaling $47,093 lacked sufficient support and/or board approval to verify that they were appropriate.

Slingerlands Fire District – Professional Services (Albany County)
District officials did not obtain quotes or requests for proposals for most professional services during the audit period. The district made payments to eight professional service vendors totaling $153,238 for six types of services. In 2013, the cost of these services consisted of $84,584 for insurance coverage, $11,086 for legal services, $10,675 for physician services, $7,800 for investment management services, $5,000 for external audit services and $650 for engineering services.

Town of Stony Point – Claims Processing and Purchasing (Rockland County)
The town’s claims processing policies and procedures are adequate. Board members approve the payment of claims against the town each month by reviewing and signing an abstract listing current claims for goods and services provided.

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party

Delanoy v City of White Plains, 2014 NY Slip Op 07615, Appellate Division, Second Department

Joseph J. Delanoy, Jr sued the City of White Plains seeking to recover damages for personal injuries.

The jury issued a verdict on the issue of liability finding White Plains 58% at fault in the happening of the accident. The City appealed the jury’s finding that there was a “special relationship” and asked the Appellate Division to set aside the verdict on the issue of liability or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence.

The Appellate Division denied the City’s appeal.

The court held that there a “special relationship” between the City of White Plains and Delanoy was created when the City's plumbing inspector directed Delanoy to perform a clearly unsafe air pressure test.

The Appellate Division explained that the Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship between a public entity and a plaintiff:

"(1) the plaintiff belonged to a class for whose benefit a statute was enacted;

“(2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or

“(3) the municipality took positive control of a known and dangerous safety condition"

In this instance only the third situation was at issue, i.e.: Did the City take positive control of a known and dangerous safety condition?

Notwithstanding the City’s arguments to the contrary, the Appellate Division ruled that the jury's determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to Delanoy’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence.

Neither, said the court, was the jury's determination that the inspector was performing ministerial acts rather than discretionary acts contrary to the weight of the evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07615.htm

New York State Comptroller Thomas P. DiNapoli releases school audits

New York State Comptroller Thomas P. DiNapoli releases school audits

Source: Office of the State Comptroller

On November 18, 2014, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the school districts listed below.

Click on text highlighted in color  to access the audit report for the school district.

Brewster Central School District – Financial Condition (Putnam County)
District officials have taken appropriate action to manage the district’s financial condition. Officials provided for effective financial planning and management by ensuring unrestricted unappropriated fund balance levels are in accordance with statutory requirements, and budget estimates and reserve balance levels are reasonable.

General Brown Central School District – Financial Condition (Jefferson County)
The board has balanced recent budgets with appropriations of fund balance and reserves while limiting tax increases, resulting in a deficit unrestricted fund balance of $435,655 at the end of fiscal year 2012-13. District expenditures, specifically those related to employee benefits, increased by more than $1.2 million since the 2008-09 fiscal year despite the elimination of 46 positions over the last four fiscal years.

Onondaga Central School District – Non-payroll Disbursements (Onondaga County)
District officials need to improve internal controls over non-payroll disbursements. The accounts payable clerk performed all non-payroll disbursement processes for the general fund with little oversight or any other compensating controls. The clerk is responsible for recording all general fund non-payroll disbursement transactions, initiating check printing, receiving printed checks and distributing checks.

Spencer-Van Etten Central School District – Financial Condition (Tioga County)
Over the last three fiscal years, the district developed budgets that were reasonable and based on historical or known expenditures. District officials have also implemented multiple cost-savings measures in an effort to minimize expenses. For example, due to anticipated increases in health insurance premiums, the district switched to lower cost health insurance coverage during the 2011-12 fiscal year and achieved savings of approximately $850,000 in the first year of the change.

Watervliet City School District – Fiscal Stress (Albany County)
The board did not adopt realistic, structurally balanced general fund budgets or adequately monitor the financial activity of capital projects to ensure fiscal stability. The board also did not adopt a policy regarding establishing an adequate level of unrestricted fund balance to maintain. As a result, the general fund’s financial condition has diminished in recent years. In addition, the district spent $741,000 more than the total amounts authorized for two projects causing a fund balance deficit in the capital projects fund in that amount.

White Plains City School District – Procurement of Professional Services (Westchester County)
District officials did not always seek competition for professional services and did not have documentation to support why contract providers were chosen for all professional service contracts. The district did not have adequate documentation to support the payment of certain claims made to professional service providers.