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December 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued as indicated


New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Office of General Services (OGS): Business Services Center Shared Services (2016-S-16)
The state’s 2012-13 budget established the Business Services Center within OGS as a centralized office for processing human resources and finance transactions that are common across state agencies. Auditors found the center has improved the consistency and efficiency of certain services it provides to its customers. Procurement card rebates have increased by over $4 million, and interest paid by the state has decreased by $350,000 since fiscal year 2013-14. Also, the center estimates it has reduced staffing costs for administering these services by $34 million annually. 

Department of Health (DOH) Medicaid Payments Made Pursuant to Medicare Part C (Follow-Up) (2016-F-16) 
An audit released in May 2014 found the state’s Medicaid program did not have limitations on the amounts it paid for Part C cost-sharing liabilities and could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities. The audit also identified several scenarios under which Medicare Part C cost-sharing liabilities were improperly paid. In a follow-up report, auditors found DOH officials made progress in addressing the problems identified in the initial audit report. This included developing controls to limit the amounts paid for Medicare Part C cost-sharing liabilities and controls to prevent concurrent payments of Medicaid Advantage premiums and Medicare cost-sharing liabilities on behalf of the same recipient. However, further actions were still needed. 

An audit issued in October 2014 identified about $13.9 million in inappropriate or potentially inappropriate Medicaid payments for low birth weight infants that did not meet billing requirements as well as overpayments due to duplicate fee-for-service and managed care claims. At the time the initial audit’s fieldwork concluded, auditors recovered over $7 million of the overpayments identified. In a follow-up, auditors found DOH officials made significant progress implementing the recommendations made in the initial audit report. This included recovering another $2 million in overpayments that were identified in the initial report and strengthening controls that prevented $13 million in improper claims. 

An initial audit report, issued in June 2013, examined whether ESD monitors the effectiveness of its international offices and manages payments to foreign representatives to ensure they are made only for authorized contract purposes. Auditors concluded that, while ESD had made significant improvements in managing payments to foreign offices, it did not have an appropriate performance monitoring system in place to evaluate foreign offices’ activities against contract requirements. In a follow-up, auditors found ESD made some progress in addressing the issues identified in the initial audit report; however, further action is needed. 

State Education Department: HTA of New York Inc., Compliance with the Reimbursable Cost Manual (2016-S-36)  
For the fiscal year ended June 30, 2014, auditors identified $28,952 in ineligible costs that HTA reported for state reimbursement, including $22,207 in other than personal service costs, and $6,745 in personal service costs, which consisted of $4,065 in unsupported staff time, $1,546 in employee compensation that was reported as more than one full-time equivalent and $1,134 in other non-reimbursable costs. 

Office of Information Technology Services (ITS): Security and Effectiveness of Department of Motor Vehicles’ (DMV) Licensing and Registration Systems (Follow-Up) (2016-F-15)
An audit report issued in September 2014 found that ITS and DMV were not in compliance with security standards that govern the systems that process credit card transactions. Auditors also found ITS did not comply with state cybersecurity policies and did not establish adequate processes for managing user access of DMV systems. In a follow up, auditors found DMV officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed. Of the five prior audit recommendations, two recommendations have been implemented and three recommendations have been partially implemented.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 20, 2016 
Source: Office of the State Comptroller


Audits of Municipal Entities

The board did not audit and approve claims prior to payment. The library’s bylaws do not address the requirement for an audit of claims and the board did not adopt a written claims audit policy. The director reviews and approves invoices and provides them to the library’s senior clerk, who then prepares checks. Checks require two signatures prior to payment – the director and the board president. However, the board president pre-signs blank checks and does not review the claims for which checks are written.

Village officials have established effective procedures that ensure claims are adequately documented and properly supported, for legitimate village purposes and approved prior to payment. The clerk-treasurer receives vendor invoices from a department head or by mail and prepares claim packets. Each board member reviews each individual claim packet and board resolutions approving payment of claims are then passed and documented in the meeting minutes.

The justices properly collected, recorded and reported court money in a timely manner. Court records were current and accurate and reports to the Justice Court Fund were timely and complete. The justices also ensured that court money was deposited in a timely manner.

While the board, by resolution, generally approved abstracts of claims, it did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved or that claims were for proper village purposes. Although all claims reviewed appeared to be reasonable and legitimate, the use of confirming purchase orders circumvents internal controls and weakens the procurement and budget control process. Moreover, when the board does not audit and approve claims prior to payment and has the same person that audits the claims sign checks, there is an increased risk that the village could pay for goods and services that are not proper village expenditures.

The treasurer’s status, as either a library officer or independent contractor, is unclear. While this appointment and the duties attached to this function are indicative of those of a public officer, it appears this individual was engaged to perform the duties of treasurer as an independent contractor. Among the indications of an independent contractor relationship, the treasurer does not take an oath of office, which is a requirement for holding public office, and is not compensated through the payroll, as are other library officers and employees.

Although the board adopted a procurement policy that required obtaining competition for purchases not subject to bidding requirements, village officials did not always ensure that purchases were made in compliance with the requirements. Furthermore, the policy did not include procedures for procuring professional services. Auditors selected a sample of purchases from 30 vendors totaling approximately $1.7 million and found that village officials did not use competitive methods to procure goods and services from six vendors who were paid a total of $196,732 for professional services. In addition, village officials did not competitively bid purchases from four vendors totaling $148,387, as required.


Audits of BOCES and School District

Although the board has adopted a procurement policy that requires competition for purchases not subject to bidding requirements, the policy does not clearly establish procedures for procuring professional services. Also, the purchasing agent and claims auditor did not always ensure that purchases were made in compliance with the policy or require district officials to properly document compliance when they sought competition.

BOCES did not properly oversee the managed technical support cooperative service agreement, which resulted in errors in reporting reimbursable expenditures to the New York State Education Department (SED). Specifically, BOCES reported district-based staff who were not eligible for aid reimbursement from SED. As a result, BOCES claimed $2.5 million in additional aid to which it was not entitled.

The board and district officials have not developed adequate written policies and procedures governing the claims processing function. In addition, the board did not develop a comprehensive job description that outlines the claims auditor’s expectations and requirements. The claims auditor compares invoices against only the purchase orders, which does not always provide adequate documentation about the vendors’ prices. The claims auditor does not compare invoices against quotes, bids or government contracts, and there is no policy that requires that these documents be attached to the claims.

The board delegated its responsibility to a claims auditor who generally ensured claims were adequately supported, properly audited before payment and in compliance with district policies. The claims auditor verified that claims were supported by original documentation such as detailed invoices or receipts and that each claim had been properly authorized.

Although the board and district officials reported unrestricted fund balance levels that were in accordance with statutory limits, they have annually appropriated fund balance towards the next year’s budget that was not used due to a practice of overestimating appropriations. This trend is projected to continue through 2015-16. Once the unused appropriated fund balance is included in unrestricted fund balance, the district’s recalculated unrestricted fund balance exceeds the statutory limit, ranging from approximately $2.4 million (12 percent) in 2012-13 to $930,000 (5 percent) in 2014-15. In addition, three reserves totaling approximately $3.8 million were overfunded, and the debt reserve totaling approximately $600,000 has not been used since 2010-11 for related debt principal and interest payments, as statutorily required.

December 22, 2016

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances


Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances
2016 NY Slip Op 08412, Appellate Division, Third Department

A police officer [Petitioner] was observed on a surveillance video pumping gasoline from his employer’s fueling system into his personal vehicle. Following an investigation by the State Police conducted an investigation. The investigation revealed that Petitioner has  access his employer’s fueling system and told the State Police investigator that he filled his personal vehicle and then made a sworn written statement describing, among other things, his accessing his employer’s fueling system to obtain gasoline.

Petitioner was charged with violating his employer’s rules of conduct by “wrongfully taking gasoline … and by making a false statement under oath. 

Following the disciplinary hearing, the Hearing Officer found:

1. The evidence did not substantiate the charges that Petitioner wrongfully took gasoline from his employer;  

2. The evidence did support a finding that he made a false statement under oath to the State Police.

As to the penalty to be imposed, the hearing officer recommended the termination of Petitioner’s employment. The appointing authority adopted the Hearing Officer's findings of fact in their entirety and the hearing officer's recommendation as to the penalty to be imposed and terminated Petitioner.

Petitioner commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the appointing authority’s and the matter was transferred to the Appellate Division.

One of the major issues raised by Petitioner concerned his contention that the penalty imposed, termination, was excessive. The Appellate Division observed that in evaluating whether the penalty is excessive, a Court "must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness." In so doing, said the court, "[t]his calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

The Appellate Division said that it was mindful of "the high standard of character to which police officers are held" and the “substantiated charges of providing a false statement under oath should not go unpunished.”

Noting that all six charges pertaining to the false statement given to the State Police were sustained by the Hearing Officer, Petitioner was subject to the penalty or punishment provided in Civil Service Law §75(3), including "a reprimand, a fine not to exceed one hundred dollars . . ., suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal." 

Here, said the court, without further expansion on the Hearing Officer's findings and recommendations, the appointing authority adopted the harshest penalty, dismissal.

The Appellate Division then noted that it had sustained:

1. A two-month suspension where a police officer admitted to falsely reporting an incident;

2. A two-month suspension, letter of reprimand and $100 fine when a police officer was found guilty of improperly completing an offense report, refusing to comply with an order and refusing to report to a superior officer; and

3. A 30-day suspension and six months of probation for a State Trooper charged with misconduct for advising a friend to revoke her consent to the search of her residence by other troopers who were conducting a marihuana investigation.

As Petitioner’s personnel record does not indicate any other disciplinary actions or warnings and considering he had served as a police officer for 14 years and that the charges that he wrongfully took his employer's gasoline for his personal use were not sustained and there was no financial loss to the employer, the Appellate Division said that based on the totality of the circumstances, that the penalty imposed is so disproportionate to the offense as to shock its sense of fairness.

Accordingly, the Appellate Division remitted the matter to appointing authority for a redetermination of the disciplinary penalty to be imposed. 

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December 21, 2016

Refusing to accept the resignation submitted by an employee


Refusing to accept the resignation submitted by an employee
Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of Petitioner’s appeal the Commissioner said that “In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Another example: §1133.1 of the State Education Law provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].
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