Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on September 10, 2015. Click on the material highlighted in color below to access the full report.

Department of Economic Development - certain local development corporations

In April 2014, DED made a $16,250.00 advance payment to the LDC. Two months later, the LDC claimed the remaining $48,750 of the contract amount. To receive the second claim, the LDC needed to demonstrate that the entire $65,000 in expenses was incurred during the contract period for work relevant to the contract objectives, and was for expenses not previously paid from another funding source. Auditors found the LDC was able to substantiate only $4,284.09 in expenses under the contract.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150824.pdf

Department of Environmental Conservation – oil spill funds

DEC generally collected all fees due the Oil Spill Fund for the facilities tested. However, of 11 sampled major oil storage facilities, auditors identified eight that inaccurately reported the number of barrels of petroleum products received, subject to fees and surcharges, or transshipped. For the sampled facilities, these inaccuracies did not materially affect the revenue collected. DEC’s internal controls over payment of cleanup, administrative, and indirect costs provide reasonable assurance that only appropriate expenses were charged to the fund.

http://osc.state.ny.us/audits/allaudits/093015/14s59.pdf

Department of Environmental Conservation – electronic waste fees

Auditors found DEC properly collected, recorded, and deposited fees and surcharges due, but did not segregate the responsibilities for collecting and recording cash receipts of the fees and surcharges. Also, supervisory review of revenue and deposit activities was not documented.

http://osc.state.ny.us/audits/allaudits/093015/15s18.pdf

Division of Housing and Community Renewal – modernization program at NYC Housing Authority

DHCR officials did not have accurate and up-to-date management information regarding the status of NYCHA’s projects. The information officials provided was dated February 2010. Specifically, five projects (totaling about $4.6 million) were not yet finished, although DHCR officials indicated that they were complete. In addition, eight of the ten projects officials listed as incomplete were, in fact, finished. DHCR officials paid $6.8 million for a change order for one project that was not adequately supported. DHCR did not have formal timeframes for awarding a contract once funding was approved.

http://osc.state.ny.us/audits/allaudits/093015/14s21.pdf

State Education Department – Astor services for children

Auditors identified $39,050 in costs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $25,565 in other-than-personal-service (OTPS) costs that were either not allowed, not properly documented, or were not reasonable or necessary. In addition, auditors identified $13,485 in non-reimbursable fundraising activities as well as two teachers and seven teacher’s assistants who did not have the required certifications for their job titles.

http://osc.state.ny.us/audits/allaudits/093015/14s66.pdf

Unified Court System – Legal Aid Society

Auditors reviewed select payments totaling $5,448,384 UCS made to Legal Aid for salaries, equipment, and real estate rentals and found Legal Aid spent these funds appropriately.  However, UCS overpaid Legal Aid $412,184 for fringe benefit expenses that were not actual and allowable under the terms and conditions of the contract.  Legal Aid did not appropriately reconcile fringe benefits at year end, moved funds in every non-personal services budget category without providing UCS with the required notification, and moved $546,803 from non-personal services budget categories to personal services budget categories without obtaining the required prior written approval from UCS.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150826.pdf

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

Steve Poole et al, v Orange County Fire Authority, Supreme Court of California, Ct. App., G047691, G047850

The California Firefighters Procedural Bill of Rights Act (Gov. Code, §3250 et seq.) provides that a firefighter has the right to review and respond to any negative comment that is “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.”

In the Poole case, the California Supreme Court considered whether §3255 gives a firefighter the right to review and respond to negative comments in a supervisor’s daily log, consisting of notes that memorialize the supervisor’s thoughts and observations concerning a firefighter which the supervisor uses as a memory aid in preparing performance plans and reviews.

The court held that in this instance because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file “used for any personnel purposes by his or her employer” and thus §3255 did not apply.

The decision is posted on the Internet at:

http://hr.cch.com/ELD/PooleOrangeCounty.pdf

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Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

2015 NY Slip Op 06756, Appellate Division, Third Department

An employee [Claimant] sought workers' compensation benefits based upon an alleged disability resulting from her exposure to toxic mold at the workplace and her claim for hypersensitivity reaction to occupational presence of fungi was established.

Claimant was found to have a temporary total disability and an award of benefits was made. Subsequently the claim was amended to include "multiple chemical sensitivity" and awards for a marked disability were continued. In a decision filed March 31, 2010, a Workers' Compensation Law Judge (WCLJ) classified Claimant with a permanent total disability as a result of the work-related injury.

The Workers' Compensation Board modified the March 31, 2010 decision by rescinding the finding of permanent total disability and referring the matter to an impartial specialist to examine Claimant and report to the Board with respect to Claimant's disability classification.

When the matter was restored to the calendar, Theodore Them, the impartial medical specialist who examined Claimant, testified that “multiple chemical sensitivity” was not a medically-recognized condition and, in any event, it was his opinion that Claimant was not suffering from any causally-related disability.

The Board credited the testimony of Them, found no further causally-related disability, thereby reversing the WCLJ's finding of total permanent disability. In this December 19, 2012 decision the Board "closed the case."

Following a number of procedural steps by Claimant, Claimant’s employer sought Board review of a second WCLJ's ruling,*which ruling included a direction to depose Claimant's doctor. The employer contended that the Board's had promulgated a decision on December 19, 2012 that resolved the issue of Claimant's degree of disability by finding that Claimant suffered no causally-related disability and properly closed the case. The Board agreed with the employer and Claimant appealed that determination.

The Appellate Division affirmed the Board’s decision, observing that its review was limited to determining whether the Board abused its discretion or acted in an arbitrary or capricious manner in precluding further development of the record regarding the issue of Claimant's causally-related disability.

The court then ruled that the Board had “properly precluded further development of the record” since the issue of Claimant's causally-related disability was addressed and decided by the Board in its December 19, 2012 decision.

The Appellate Division then explained that “To the extent that Claimant now asserts, on the instant appeal, that the Board erred in crediting the opinion of the impartial specialist that Claimant had no causally-related disability, her remedy was to perfect her appeal from the Board's December 19, 2012 decision,” which had not been done.**

* In a ruling issued April 8, 2013 the WCLJ construed the Board's December 19, 2012 decision as rejecting his prior decision that Claimant suffered a causally-related total disability, but continued the case for further development of the record to determine Claimant's appropriate, lesser degree of disability.

** The Appellate Division noted that Claimant “filed a notice of appeal with this Court as to the December 19, 2012 Board decision, but failed to timely perfect that appeal.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06756.htm

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Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Bill v Brewer, USCA, 9^th Circuit, Docket #13-15844

In this civil rights action brought pursuant to 42 U.S.C. §1983 by three Phoenix police officers, the United States Court of Appeals for the 9^thCircuit affirmed a federal district court’s dismissal of their complaint. The three police officers had alleged that two other Phoenix police officers violated their rights under the Fourth* and Fourteenth** Amendments as the result of their obtaining DNA samples from the three officers for the purpose of excluding them as contributors of DNA at a crime scene.***

Noting that the samples had been obtained pursuant to an Arizona state court order, the Circuit Court ruled that a state court’s order authorizing the collection of DNA samples satisfied the Warrant Clause of the Fourth Amendment.

The Circuit Court also held that it was not unreasonable, under the circumstances, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that the DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.

The court explained that “The policeman’s employment relationship by its nature implies that in certain aspects of his [or her] affairs, he [or she] does not have the full privacy and liberty from police officials that he [or she] would otherwise enjoy.” It was hardly unreasonable here, said the court, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.”

Although the Circuit Court said that it shared the police officers’ concerns “over potential misuse of DNA samples to reveal private information about contributors,” the court observed that “no such danger is realistically posed” in this situation as the memorandum concerning obtaining such DNA samples “expressly guarantees” that the DNA samples taken from the police officers would be used” for comparison to evidence in this report only” and would not be used for any research type testing, including race, ethnicity or health, provided to any outside organization for those purposes, entered into the employee database, or entered into CODIS, the Combined DNA Index System.**** 

The court noted that the police officers had not alleged “any plausible reason to believe that the Phoenix Police Department will not abide by these limitations,” and the federal district court did not err in declining to speculate about possible future abuse.

* The Fourth Amendment prohibits the unreasonable search of persons. The police officers alleged “obtaining, analyzing, and retaining” their DNA samples violated their rights under the Fourth Amendment.

** The Circuit Court did not specifically address the police officers’ Fourteenth Amendment arguments which presumably contended that the taking of the DNA samples violated their right to “due process.”

*** The samples had been obtained pursuant to an Arizona state court order.

**** CODIS is “a centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons.”

The decision is posted on the Internet at:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/31/13-15844.pdf