New York State Comproller DiNapoli spotlights New York’s Veterans

New York State Comproller DiNapoli spotlights New York’s Veterans

Source: Office of the State Comptroller

Nearly three-quarters of the approximately 890,000 veterans living in New York served during wartime, including 31 percent in the Vietnam War-era, according to State Comptroller Thomas P. DiNapoli.

The Comptroller said that “New York is home to nearly 900,000 men and women who have served bravely to safeguard our freedom. Across the country and in our state, we’ll be forever indebted to our veterans for their service and their sacrifices. We need to offer essential programs for the men and women who serve in our military to show our appreciation for their service and support their return to civilian life.”

DiNapoli’s report highlighted the programs and services offered to New York’s veterans by the state’s Division of Veterans’ Affairs and other agencies. The 2014-15 state budget allocated more than $21 million for veteran’s programs and services including counseling and benefit assistance services, tuition awards, peer-to-peer support services and nursing homes.

To access the Comptroller’s report please click on http://www.osc.state.ny.us/reports/other/veterans_11_2015.pdf

With both federal and state programs providing important services, DiNapoli urged policy makers at all levels to continuously examine whether existing initiatives appropriately meet the needs of New York's veterans.

DiNapoli also noted that the New York State Common Retirement Fund has a program to provide loans to veterans. The state pension fund partnered with the New York Business Development Corporation (NYBDC) Partnership to create a $5 million commitment for fixed-rate small business loans for returning military veterans who are also business owners. Veterans who serve in the Guard or Reserve, or have been honorably discharged from active duty may apply, through the NYBDC, for small business loans up to $150,000 to start or expand a business.

To learn about the New York State Common Retirement Fund’s loan program for veterans please click on http://www.nybdc.com/how-can-we-help/Loans_for_Veterans_69_7_sb.htm

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Tamucci v DiNapoli, 2015 NY Slip Op 08027, Appellate Division, Third Department

Between 1989 and 2009, Town and Village of Harrison Police Department [HPD] police sergeant Mark Tamucci was a member of New York State Police and Fire Retirement System [PFRS].

During his last three years of employment, Tamucci received special-duty overtime wages for services performed on special details.* After his retirement, the New York State and Local Retirement System sent Tamucci a letter indicating this his final average salary was based on calculations that did not include salary payments he received for his “special-duty overtime” work.

Tamucci asked PFRS to recalculate of his final average salary to include such overtime wages. A hearing was held and the Hearing Officer concluded that the wages that Tamucci earned for services performed on those special details were properly excluded from the calculation of his final average salary. The Comptroller adopted the decision of the Hearing Officer and denied Tamucci 's application for a recalculation of his final average salary.

Tamucci commenced a CPLR Article 78 proceeding in Supreme Court. Supreme Court, finding that Tamucci’s petition raised an issue of substantial evidence, transferred the proceeding to the Appellate Division.

The Appellate Division observed that the Comptroller is vested with the “exclusive authority to determine all applications for retirement benefits and the determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence.”**

The relevant elements set out in the Retirement and Social Security Law with respect to determining an individual’s "final average salary" for retirement purposes in this instance are:

1. The average annual compensation of the member for credited government service not exceeding his [or her] three years of credited government service immediately preceding his [or her] date of retirement (See Retirement and Social Security Law §302 [9] [a]).

2. Government service includes, among other things, paid "[s]ervice as an officer or employee of an employer (See Retirement and Social Security Law §302 [12])

The term "Employer" is defined as "[t]he state, a participating employer,*** and any other unit of government or organization obligated or agreeing . . . to make contributions to the retirement system on behalf of its police [officers] and fire [fighters]" (Retirement and Social Security Law §302 [8]).

The Appellate Division said that the Comptroller's finding that Tamucci's services during special details were provided to the relevant private entities, rather than to or for the police department, was supported by substantial evidence. Noting that uncontested evidence in the record established that the private entities HPD order to receive services performed by Tamucci and other officers in the form of special details, the court explained that “A reasonable person could infer that the police department required these private entities to pay for the services because it had determined that such services were not within the scope of its responsibilities to the public.”

The Appellate Division, citing Cannavo v Regan, 122 AD2d 523, said it had previously indicated that the voluntariness of such services is relevant to the inquiry and that  Tamucci “unambiguously testified that he had volunteered for all of the special details on which he had performed services.” In addition, the court noted that there was nothing in the records to indicate that HPD had ever ordered or otherwise compelled Tamucci or any of his fellow officers to perform services on special details.

Considering the evidence that the private entities had contracted with HPD to have these “special detail” services provided to them and the lack of any evidence these “special detail services” were, in fact, required to be performed by HPD, the court concluded that substantial evidence supported the Comptroller's determination that the services that Tamucci performed on special details were not provided to his employer, HPD.

NOTA BENE: An off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement nor eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer. The Disability Leave for fire, police and other public sector personnelhandbook addresses these and similar situations. For more information click on http://booklocker.com/3916.html

* These “special details” result from private entities contracting with the police department for its officers to provide various services that would not otherwise be provided to such entities.

** Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

*** The term "participating employer" includes "any municipality participating in the [police and fire] retirement system" (see Retirement and Social Security Law §302 [20]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08027.htm 

See, also, Pitzel v DiNapoli, 2015 NY Slip Op 08015, Appellate Division, Third Department,  posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08015.htm

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

Monti v New York State Div. of Human Rights, Serv. Empls. Intl. Union, AFL-CIO, Local 200 United, 2015 NY Slip Op 07092, Appellate Division, Fourth Department

Zajac v New York State Div. of Human Rights & Serv. Empls. Intl. Union, Local 200 United, 2015 NY Slip Op 07097, Appellate Division, Fourth Department

The Commissioner of the New York State Division of Human Rights, adopting the findings and recommendation of the Administrative Law Judge [ALJ] who conducted the administrative hearing concerning their respective complaints, dismissed the complaint filed by Carl A. Monti and the complain filed Corrine Zajac alleging Local 200 had subjected them to unlawful discrimination in violation of the State’s Human Rights Law.

In both actions the Appellate Division unanimously confirmed the decisions of the Commissioner of Human Rights and dismissed their respective petitions.

The Appellate Division explained that its review of a determination by the Commissioner of Human Rights is limited to the issue of whether substantial evidence supports the Commissioner's determination. Further, said the court, an ALJ’s assessment of credibility of the testimony given by the witnesses testifying at the hearing is "unassailable," and the determination must be confirmed if the testimony credited by the ALJ is supported by substantial evidence.

With respect to Monti’s complaint the court said that it concluded that substantial evidence supported the ALJ's determination that Monti failed to establish a prima facie case of unlawful retaliation and that Monti’s termination was based upon legitimate, nondiscriminatory reasons.

Addressing Corinne Zajac’s appeal, the Appellate found that Zajac had not met her burden of establishing that Local 200 had engaged in unlawful discrimination when it terminated her employment. Zajac had alleged that she had been terminated by Local 200  in “retaliation for filing an age discrimination complaint.” Nor, said the court, did Zajac submit any complaint, much less evidence, that Local 200 had further retaliated against her by denying her severance benefits.

The Monti decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07092.htm

The Zajac decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07097.htm
Motion to appeal: Motion, insofar as it seeks leave to appeal as against respondent Service Employees International Union, Local 200 United, dismissed as untimely (see CPLR 5513[b]); motion, insofar as it seeks leave to appeal as against respondent New York State Division of Human Rights, denied.

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Click on text highlighted in color to access the full report 

Guilty plea of the theft of $78,000 of NYSERS pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Terence Fitzpatrick, 53, of Monmouth County, New Jersey, to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick faces a maximum penalty of 2 and 1/3 to 7 years in prison.

http://www.osc.state.ny.us/press/releases/nov15/110515a.htm?utm_source=weeklynews20151108&utm_medium=email&utm_campaign=110515arelease 

New York State Comptroller Thomas P. DiNapoli”s office completed the following audits of political subdivisions of the State:

Village of Clayville – Board Oversight

The clerk-treasurer did not provide the board with comprehensive financial reports so that it could properly oversee the village’s financial activities. In addition, the board did not ensure that the clerk-treasurer filed the village’s annual financial reports in a timely manner.

http://www.osc.state.ny.us/localgov/audits/villages/2015/clayville.pdf

Cortland Housing Authority – Financial Condition

Housing authority officials have worked effectively to maintain a strong financial position by controlling expenditures.

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/cortlandhousing.pdf

Essex Fire District #2 – Cash Disbursements

The board does not provide adequate oversight of the district’s cash disbursements. The treasurer did not prepare monthly bank reconciliations or reports, or prepare and file the district’s annual reports with the Office of State Comptroller for the past two years.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/essex2.pdf

Lockport Public Library – Claims Processing

The board did not routinely audit and approve claims prior to payment. Instead, claims were audited and approved for payment by the director, who also signed the disbursement checks to pay the claims.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/lockport.pdf

Port WashingtonFire Department – Budgeting

The board’s adopted budgets have not accurately portrayed expected department operating costs to the companies and the public. Furthermore, by relying on net assets to fund budget shortfalls, the department is not adopting structurally balanced budgets and is instead funding recurring expenditures with one-shot uses of accumulated net assets.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/portwashington.pdf

Roosevelt Fire District – Fire Station Project

Auditors reviewed the process used to construct a new fire station as well as construction-related expenditures and found that the expenditures were within the board-approved amount. However, the board did not enter into written agreements with four contractors that provided services during the project.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/roosevelt.pdf

Town of Sidney – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The town took appropriate action to implement or resolve recommendations contained in the 2014 budget review report issued in November 2014. The town’s proposed budget complies with the property tax levy limit.

http://www.osc.state.ny.us/localgov/audits/towns/2015/sidney_br.pdf

Stony Creek Volunteer Fire Company – Cash Disbursements

The board did not establish effective internal controls to address a lack of segregation in the treasurer’s cash disbursement duties. The board did not establish policies or implement any procedures governing debit card use or review or approve any card-related transactions.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/stonycreek.pdf

Western Sullivan Public Library – Library Operations

The library’s fixed costs for operating its three buildings are high, and officials did not perform any comparative cost analysis of operations or segregate cost information by building.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/westernsullivan.pdf

Recent appointments in the Executive Chamber and by State departments and agencies

Recent appointments to the Executive Chamber and by State departments and agencies

Source: Office of the Governor

On November 5, 2015, Governor Andrew M. Cuomo announced the following  appointments to his administration and to State departments and agencies:

Joanne Choi has been appointed Assistant Director of Constituencies for Asian American Affairs for the Executive Chamber. Ms. Choi is currently the Queens Community Liaison for the New York City Department of Health and Mental Hygiene. Previously, she served as a constituent liaison for Congresswoman Grace Meng, and also has experience in community and constituency relations from the Congresswoman’s 2012 campaign and previously-held Assembly office. Ms. Choi earned a B.A. in political science and an M.A. in public policy from Stony Brook University.

Ruth Noemí Colón has been appointed Vice President of Corporate Shared Services for the New York Power Authority (NYPA). Ms. Colon has worked for NYPA since 2011, most recently as Director of Administration and Environmental Justice. Prior to her work with NYPA, she served in various roles at the New York State Department of State, most recently as Acting Secretary of State from 2010 to 2011, as well as the New York City Housing Authority. She holds both a B.A. and an M.A. from the University of Puerto Rico – San Juan, as well as a J.D. and International Law Certificate from the Pace University School of Law.

Lisa Bova-Hiatt has been appointed Executive Director of the Governor’s Office of Storm Recovery. Ms. Bova-Hiatt has served with the Office of Storm Recovery since January 2014, first as General Counsel, then Acting Chief Operating Officer and most recently as its Acting Executive Director. Previously, she served in the administration of New York City Mayor Michael Bloomberg doing legislative affairs. She also held a variety of senior positions with the New York City Law Department between 1995 and 2014. Ms. Bova-Hiatt received her B.S in business administration from Villanova University, and her J.D. from Brooklyn Law School.

Kitty Kay Chan has been appointed New York State Chief Data Analytics Officer. She is currently the Chief Economist at the Department of Financial Services. Previously Dr. Chan served as the Chief Economist and Director of Audit and Review for the New York State Joint Commission on Public Ethics, and as a Deputy Inspector General for the New York State Inspector General’s Office. Before that, she served as the Director of Economics for the New York State Office of the Attorney General and held positions at the US Federal Communication Commission, the US Department of Agriculture, and a private economic consulting firm. Dr. Chan has taught at New York University, and currently teaches at Columbia. She was a National Science Foundation Fellow and holds a Ph.D. in Economics and a Doctoral Certificate in Environmental Sciences, Policy, and Engineering from the University of Southern California.

Norma Ramos has been appointed Deputy Secretary for Civil Rights. Ms. Ramos has served as the Executive Director of the Coalition Against Trafficking of Women, and previously was the Executive Director of the South Bronx Clean Air Coalition. In addition, she has held positions at the New York City Department of Environmental Protection and the U.S. Environmental Protection Agency. Ms. Ramos has a B.A. From Fordham University, and a J.D. From Temple University School of Law.

Caroline Griffin has been appointed Chief of Staff for DASNY where she is responsible for overseeing intergovernmental relations and managing the Communications + Marketing Department, as well as coordinating policy and operations across DASNY’s multiple business lines. Ms. Griffin has served in the Executive Chamber for Governor Cuomo since 2011, most recently as his Director of Intergovernmental Affairs. Previously, she served in the Office of Intergovernmental Affairs for the administrations of both Governor David Paterson and Governor Eliot Spitzer. Ms. Griffin holds a B.A. in Communications from Boston College.

Kim Nadeau has been appointed Chief Financial Officer and Treasurer of the Dormitory Authority of the State of New York. Ms. Nadeau is currently Vice President for Accounting and Controller at US Light Energy (USLE). Prior to her work with USLE, she served as a Vice President of Accounting and Controller for CH Energy Group, Inc. from 2006 to 2014, and previously held various positions for Northeast Utilities for 1995 to 2006, as well as Coopers and Lybrand LLP from 1989 to 1995. Ms. Nadeau holds a B.S. in Accounting, an M.B.A. and a J.D. from the University of Connecticut.

Emily Saltzman has been appointed Assistant Vice President/Director, Office of Economic Opportunity and Partnership Development, at NYS Homes & Community Renewal. Ms. Saltzman has served as the Director of Community Affairs to Governor Andrew M. Cuomo since 2011. Before joining the Executive Chamber of the State of New York, Ms. Saltzman represented a range of nonprofits, corporations and associations as Government Relations Manager at Brown and Weinraub PLLC. She also held positions at Manhattanville College, Ticketmaster/Citysearch and the New York City Council and served as Assistant Director of Intergovernmental and Constituency Affairs under former Governor Mario M. Cuomo. Ms. Saltzman holds a B.A. from Dartmouth College and an M.P.A. from Columbia University School of International and Public Affairs.