New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending October 29, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending October 29, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School DistrictAudits

Caledonia-Mumford Central School District – Online Banking

Caledonia-Mumford

Genesee Valley Board of Cooperative Educational Services– Purchasing

Genesee Valley BOCES

Heuvelton Central School District – Payroll

Heuvelton

Syracuse City School District – Claims Audit Process

Syracuse

Your Home Public Library – Financial Management

Your Home Public Library

 Other audit reports published 

Gingerbread  Learning Center, Inc. – claimed reimbursement for ineligible expenses.

Gingerbread is a not-for-profit organization that provides center-based (full-day, half-day and integrated) preschool programs and Preschool Special Education Services, formerly known as the Special Education Itinerant Teacher (SEIT) program, to children ages three through five years. State Education Department (SED) contracts with Gingerbread to provide these programs to children throughout Staten Island and neighboring boroughs. The State Comptroller said that Gingerbread claimed nearly $1 million in expenses that did not qualify for reimbursement from taxpayers, including bonuses that were never paid to staff, liquor store purchases and holiday parties. The audit report is posted on the Internet at http://www.osc.state.ny.us/audits/allaudits/093017/14s79.pdf.

The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother

Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color.

On October 28, 2016, New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of John H. Eydeler III, 66, a resident of Glendale, Arizona, on his guilty plea to Grand Larceny in the Second Degree, a Class C felony.  

Eydeler admitted to stealing pension payments from the New York State and Local Employees Retirement System intended for his mother, Dorothy Eydeler, a retired nurse who died in October of 1998. Today, he was sentenced to a five-year term of probation and a judgment in the amount of $131,038.60.

“My office has exposed more than $2.75 million in pension fraud in recent years, and we aggressively pursued prosecution in each case,” said State Comptroller Thomas P. DiNapoli. “If you’re stealing from the retirement system, we will track you down no matter where you live and make sure you pay it back. I thank Attorney General Schneiderman for his prosecution of this case and others through our Operation Integrity partnership.”

“The New York pension fund cannot serve as a personal piggy bank for those looking to scam the system,” said Attorney General Schneiderman. “I will continue to work with Comptroller DiNapoli to protect our pension system and send a message that fraudsters who steal from the state will be punished.”

Eydeler concealed his mother’s death in 1998 from the New York State and Local Employees Retirement System. As a result, between October 1998 and January 2010, over $130,000 in pension benefits were deposited into a bank account in the name of Eydeler’s deceased mother. Eydeler then diverted these monies to himself by claiming to have power of attorney for his mother and writing checks to himself every month for over a decade. Eydeler altered his scheme to conceal the theft, and used the monies to prop up a small automotive repair business that he owned in Glendale, Arizona.

In August 2016, the Attorney General filed an indictmentagainst Eydeler charging him with Grand Larceny in the Second Degree, a Class C felony.  Eydeler pleaded guilty to the indictment on October 12, 2016. Today, he was sentenced by the Honorable Stephen W. Herrick in Albany County Court to a five-year term of probation. Eydeler also confessed to a judgment being entered against him for the entire restitution amount of $131,038.60.

This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and the Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.

 

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York State and Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mitchell Paurowski and Deputy Chief Antoine Karam.  

The Investigations Bureau is led by Chief Dominick Zarrella. This case was prosecuted by Assistant Attorney General John R. Healy of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton.

  
The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law

Thomas, et al. v New York City Dept. of Educ., 2016 NY Slip Op 06989, Appellate Division, First Department

The New York City Department of Education [DOE] appealed an order and judgment handed down by Supreme Court, New York County, granting a petition filed by Michael P. Thomas [Thomas] seeking a determination that DOE violated the Open Meetings Law by denying the general public, including Thomas, access to meetings of a New York City public schools School Leadership Team [SLT].

The State’s Education Law requires each New York City public school to have a “school-based management team” [SBMT]. DOE implemented this mandate by establishing SLTs in every school. SLTs have from 10 and 17 members, made up of school parents, teachers, staff, and administrators, and may also include “representatives of Community Based Organizations.” SLTs must meet at least once a month “at a time that is convenient for the parent representatives” and notice of the meeting must be provided in a manner “consistent with the open meetings law.” Its basic mission is to help formulate “school-based educational policies” and ensure that “resources are aligned to implement those policies.”

Thomas, a retired DOE mathematics teacher, asked for permission to attend a meeting of the SLT. Ultimately his request was denied on the ground that although the SLT Bylaws permits “school community members to attend its meetings,” Thomas was “not a member of the school community.” Thomas, wishing to “challenge that policy in court” decided that he needed to be “denied entrance onsite” in order to “have standing.” He attempted to gain entrance to a meeting of a SLT and on presenting himself to security at a DOE school for this purpose, was denied admittance to the SLT meeting.

Thomas contended that the SLT was a “public body” and its refusal to permit him to attend the meeting violated the Open Meetings Law. Supreme Court granted the petition finding that “SLT meetings entail a public body performing governmental functions,” and are thus “subject to the Open Meetings Law.” DOE appealed.

The Appellate Division agreed with Supreme Court’s ruling and sustained its granting Thomas’ petition. The court held that DOE violated the Open Meetings Law by denying the general public, i.e., Thomas, access to a meeting of a New York City public school's SLT. Citing Perez v City Univ. of N.Y., 5 NY3d 522, the Appellate Division said that in enacting the State’s Open Meetings Law, “the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”

In the words of the Appellate Division, the Open Meetings Law provides that “[e]very meeting of a public body shall be open to the general public.” As to the meaning of the term “public body” it is defined in the law as “any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof.” In addition, the term “meeting” is defined or described as “the official convening of a public body for the purpose of conducting public business.”

In Smith v The City University of New York, 92 NY2d 707, the court said “… a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature . . . should be deemed a public body that is performing a governmental function.” In contrast, in Jae v Board of Education of Pelham Union Free School District, 22 AD3d 581 [leave to appeal denied, 6 NY3d 714 ] the court held that an entity which is “advisory in nature” and “d[oes] not perform governmental functions” will not be deemed to be a “public body” for purposes of the Open Meetings Law.

The Appellate Division rejected DOE’s argument that the SLTs do not perform “governmental functions” characteristic of public bodies under the Open Meetings Law, but rather merely “serve a collaborative, advisory function.” The court explained that “[i]t cannot be disputed that SLTs are established pursuant to state law and are a part of DOE's “governance structure.” The court further opined that it cannot be disputed that SLTs have decision making authority to set educational and academic goals for a school through the CEP, and indicated that “[t]he notion that SLTs merely serve an advisory role is not supported by the regulatory history.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06989.htm

Administrative Law Judge decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings

Administrative Law Judge decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings

Video tape introduced as evidence of employee’s use of unauthorized force

New York City Admin. for Children’s Services v Patterson, OATH Index No. 904/16

A juvenile counselor, Allen Patterson, employed by the New York City Administration for Children’s Services was served with five disciplinary charges setting out 23 specifications of misconduct pursuant to §75 of the Civil Service Law.

Among these charges and specifications were allegations that Patterson used unauthorized force against four different juvenile residents, made false and misleading statements and used profane and threatening language towards a supervisor.

In support of certain of the charges and specifications, Children’s Services introduced video and audio recordings of exchanges between Patterson and the juveniles in the course of the disciplinary hearing.

OATH Administrative Law Judge Noel Garcia found that although Children’s Services did not prove some of the specifications set out in the several Charges it filed against Patterson, it did prove 15 of those specifications.

Finding that Pattersonconsistently exhibited a pattern of behavior that violated agency rules and that portions of Patterson’s testimony at the administrative disciplinary hearing was not credible, Judge Garcia recommended termination of Patterson’s employment, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-904.pdf

Employee found guilty of disrespectful conduct and disruptive and threatening behavior

New York City Admin. for Children’s Services v Yu, OATH Index No. 1924/16

At a disciplinary hearing conducted pursuant to §75 of the Civil Service Law Oath Administrative Law Judge Alessandra F. Zorgniotti found that Laureen Yu engaged in disrespectful conduct towards her supervisor and exhibited disruptive and threatening behavior that caused other employees to feel unsafe.

Yu was alleged to have failed to be courteous and considerate of her fellow employees; sent discourteous text messages and e-mails to certain colleagues; failed to obey lawful orders; engaged in threatening behavior; violated a number of Children’s Services rules prohibiting rude, threatening, insubordinate, and disruptive conduct; and conducted herself “in a manner prejudicial to good order” while at work.

Judge Zorgniotti, noting that Yu had been formally disciplined on five prior occasions for similar misconduct, recommended that Yu be terminated from her employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1924.pdf

Licensed Practical Nurse alleged to have orally and physically abused patient

NYC Health and Hospitals Corp. (Henry J. Carter Specialty Hospital and Nursing Facility) v Johnson, OATH Index No. 1415/16

OATH Administrative Law Judge Noel Garcia found that the Health and Hospitals Corporation failed to prove that Fiona Johnson, a licensed practical nurse, used profane language or was orally and physically abusive towards a patient.

In this administrative disciplinary action brought pursuant to §7:5 of the Personnel Rules and Regulations of the Corporation  Judge Garcia found that the Hospital did not present reliable evidence as to the patient’s injury nor did it prove that Johnson was the person who committed the misconduct alleged. In contrast, said the ALJ, Johnson credibly testified about her interactions with the patient in which she denied any wrongdoing.

The ALJ also explained that the uncorroborated and unreliable “double hearsay” testimony was insufficient to establish that Johnson made threatening remarks towards an employee and a potential witness.

Judge Garcia recommended the charges against Johnson be dismissed and that she be paid for lost wages and benefits that resulted from her pre-hearing suspension without pay. The appointing authority adopted the ALJ’s recommendation.

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Adverse Personnel Decisions:  A766-page E-book focusing challenging penalties imposed following administrative disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions. For more information click on http://nypplarchives.blogspot.com/

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