Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Matter of DeRosa and the Minisink Valley Central School District, et al, Decisions of the Commissioner of Education, Decision No. 17,028

Amanda DeRosa served full-time in her probationary appointment during the 2008–2009 and 2009–2010 school years, with the exception of the period of November 19, 2009 to January 5, 2010, during which she took unpaid maternity leave. 

The Minisink Valley Central School District [Minisink] abolished thirteen full-time positions in the elementary tenure area effective June 30, 2010 and Ms. DeRosa was notified that she would be placed on a "preferred eligibility list" [PEL] with the right to reinstatement to a position in the elementary tenure area. When Minisink recalled two other teachers on the PEL, Ms. Kristen Daly and Ms. Jeni Galligan, Ms. DeRosa claimed that at the time of the recall she had four full years of service in the system, more than Ms. Daly and Ms. Galligan and that,  in accordance with Education Law §§2510 and 3013, she should have been recalled from the PEL prior to either of those educators.

In contrast to Minisink's argument that "long-term substitute service in positions that do not ripen into probationary appointments is not counted towards seniority," the Commissioner of Education ruled that long-term substitute service should be so considered and that tenure area is irrelevant to the calculation of service for the purposes of determining an individual's ranking on a preferred list.

The Commissioner pointed out that paragraph (a) of Education Law §3013(3) addresses a teacher’s recall rights following a layoff and provides, in pertinent part that "If an office or position is abolished ...  the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list.... The persons on such preferred list shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system...."

The Commissioner explained that for purposes of determining the recall rights of teachers on a PEL, length of service in the system is used, not length of service within a particular tenure area. Further, said the Commissioner, "Seniority under Education Law §2510(3), which is identical to §3013(3), has been interpreted as all service within the system, not just a particular tenure area" and it is well-settled that full-time regular substitute service counts for seniority purposes under Education Law §§2510(2). Rather, a teachers loses his or her seniority rights under Education Law §§2510(2) and 3013(2) when he or she severs, or is severed, for his or her employment with the employer, not at the result of "interrupted service" during an "uninterrupted" period of employment as the result of an authorized leave of absence without pay or for such other reason such as military leave as defined in New York State's Military Law.

The question presented in this appeal was whether the calculation of Ms. DeRosa's service in the system under Education Law §3013(3) includes long-term substitute service that did not lead to a probationary appointment in the same tenure area. This, said the Commissioner, appeared to be a question of first impression and neither party has cited to a prior decision that squarely addresses this issue nor could the Commissioner find one.

Although Minisink cited Matter of Kelley, 19 Ed Dept Rep 499, aff’d sub. nom.; Kelley v. Ambach, 83AD2d 733, as authority that substitute service not connected to a probationary appointment should not be counted towards seniority, the Commissioner noted that in Kelley an excessed assistant principal in a junior high school claimed entitlement to appointment from the a PEL to positions of assistant principal at a senior high school. As both of the senior high school positions were in a different tenure area, the Commissioner held that Minisink's "reliance on [Kelley was] misplaced," noting that Ms. DeRosa argued that she should have been recalled by Minisink to a vacant position that was in the same tenure area as the position from which she was excessed.

Accordingly, the question is whether long-term substitute service that did not lead to a probationary appointment would be creditable in determining seniority for the purposes of layoff under Education Law §3013(2) and for recall purposes under Education Law §3013(3). 

In the words of the Commissioner, "[Minisink] has not articulated any compelling policy reason why long-term substitute service that did not lead to a probationary appointment should not be counted for recall purposes when the law is clear that service in another tenure area may be counted [and] Education Law §3013(3) bases recall on length of service in the system, which would encompass full-time service as a professional educator as defined in 8 NYCRR §30-1.1(e) [and] no reason appears why full-time service as a regular substitute in a different tenure area should not be counted as part of service" at Minisink.

In consideration of the facts in this case, the Commissioner found:

1. "Where [a] petitioner is seeking reinstatement to a position in her [or his] original tenure area and [is] only claiming seniority credit for prior long-term substitute service, the petitioner is entitled to such credit for her [or his] service as a professional educator. 

2. "By analogy to the cases under Education Law §§2510(2) and 3013(2), this applies to long-term substitute service that did not immediately precede [a] petitioner’s probationary service and to interrupted service such as [Ms. DeRosa's]. 

3. There was "no basis in the statute, or as a matter of policy, for disregarding service as a professional educator in a long-term substitute position in determining total years of service in the [district] under Education Law §3013(3).

4. Ms. DeRosa's "did not sever service with the district; rather, her service was only interrupted by service in a different tenure area.

5. Ms. DeRosa had "served in a probationary appointment in the elementary tenure area until such position was abolished" and service during that probationary appointment "counted towards her seniority in the [district]."

Ms. DeRosa, at the time that her position was abolished, had four years of service in the elementary tenure area, less unpaid time taken during the 2009–2010 school year for maternity leave. In contrast, Ms. Daly had three years of service in the district and Ms. Galligan had three years of service, less some number of days of unpaid leave." Thus Ms. DeRosa had more seniority at Minisink than either Ms. Daly or Ms. Galligan."

Accordingly, the Commissioner ordered Minisink to reinstate Ms. DeRosa as elementary teacher, with back pay, seniority and benefits as of September 1, 2013, "less any compensation she may have received in the interim."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17028

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book focusing on the relevant laws, rules and regulations, and summarizing selected court and administrative decisions, involving layoff and reinstatement from a preferred list. For more information click on http://nylayoff.blogspot.com/

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An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Kennedy v United States, USCA, Federal Circuit, Docket 16-1512

Although a federal Claims Court held that individual’s disenrollment from a program was lawful and that his breach-of-contract claims for monetary relief lacked merit, the Federal Circuit Court of Appeals reversed.

The Circuit Court ruled that in view of the government’s concession that the individual’s due process rights were violated when he was dissuaded from attending his hearing, the Claims Court erred in concluding that individual’s disenrollment was inevitable.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1512.Opinion.1-12-2017.1.PDF

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity

Newcomb v Middle Country CSD, 2016 NY Slip Op 08581, Court of Appeals, December 22, 2016

The issue in this appeal is whether the Supreme Court and, on appeal, the Appellate Division, abused their discretion in denying the petitioner's motion for leave to serve a late notice of claim on the Middle Country Central School District. The Court of Appeals concluded that “it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner.” 

Accordingly, the Court of Appeals reversed the lower courts’ rulings.

The court explained that “Pursuant to General Municipal Law §50-e(1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises." General Municipal Law §50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law §50-e[5]). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law §50-e[5]).

However, the Court of Appeals observed that ”... a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.”

Decision highlights some essentials of the Freedom of Information Law

Decision highlights some essentials of the Freedom of Information Law

PBA of the New York State, Inc., v State of New York, 2016 NY Slip Op 08918, December 29, 2016

In this decision the Appellate Division addressed elements of the State’s Freedom of Information Law [FOIL] and explained:

"Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)" (Matter of Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237 [2015] [internal quotation marks and citations omitted]; see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Johnson v Annucci, 138 AD3d 1361, 1362 [2016], lv denied 27 NY3d 911 [2016]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986] [citations omitted]; see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]; Matter of MacKenzie v Seiden, 106 AD3d 1140, 1141 [2013]). Notably, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]; accord Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [2013]; Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 196 [2011]), and the agency must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; accord Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation and Fin., 141 AD3d 997, 999 [2016]).

“Public Officers Law §87(2)(b) permits an agency to deny access to records, or portions thereof, if disclosure ‘would constitute an unwarranted invasion of personal privacy.’ The statute does not, however, categorically exempt such documents from disclosure. To the contrary, Public Officers Law §89 expressly permits an agency to delete ‘identifying details’ from records that it makes available to the public (Public Officers Law §89[2][a]), and provides that ‘disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . . when [such] identifying details are deleted’ (Public Officers Law § 89 [2] [c] [i]; see Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294, 298 [1985]; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159 [1998]).”

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction 
Decisions of the Commissioner of Education, Decision #17,002

Addressing the issue of "improper service" of the complaint, the Commissioner explained that the application must be dismissed because there was no personal service of the application on officers and employee as necessary parties where the rights of such an officer or staff member would be adversely affected by a determination of an appeal in favor of a applicant.

With respect to issues in the application or appeal involving subject matter jurisdiction of the Commissioner:

1. To the extent that an application alleges discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate issues of constitutional law or to challenge the constitutionality of a statute or regulation and the complaint must be presented to a court of competent jurisdiction if otherwise timely.

2. To the extent that an application raises claims that do not arise under Education Law, such as defamation, the Commissioner of Education lacks jurisdiction over such claims, which may be raised in a court of competent jurisdiction if otherwise timely.

3. To the extent that an appeal to the Commissioners pursuant to Education Law §310 alleges claims under Title VI of the Civil Rights Act of 1964 or the Americans with Disabilities Act, an appeal to the Commissioner is not the appropriate forum to adjudicate such claims.

4. To the extent that the application asks the Commissioner to provide for an investigation concerning the issues giving rise to the application, a petition submitted to the Commissioner for adjudication is appellate in nature and does not provide for investigations.

5. To the extent that applicant seeks an award of monetary damages, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal filed pursuant to Education Law §310.

6. To the extent that the applicant seeks an apology from an officer of staff member, the Commissioner lacks the authority to order a member of a board of education or a school district employee to issue an apology.

Finally, as relevant in this appeal, the decision notes that in the interest of judicial economy, the Commissioner of Education will not entertain an appeal while there is an action pending in another forum involving the same issues and seeking similar relief.

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry 
2016 NY Slip Op 08368, Appellate Division, Second Department

In this proceeding pursuant to CPLR Article 78 to review the appointing authority’s adopting a Civil Service Law §75 hearing officer's findings and recommendation as to the discipline to be imposed, the Appellate Division sustained the appointing authority’s finding the employee [Petitioner] guilty of certain charges of misconduct and incompetence filed against him and imposing the penalty of dismissal of the Petitioner from his employment.

Among the charges filed against Petitioner was that, in response to a request for an account concerning an incident, Petitioner conceded made a false statement to his superior.

In sustaining the appointing authority’s action, the Appellate Division noted that the privilege against self-incrimination set out in the Fifth Amendment of the U.S. Constitution was not a bar to the disciplinary charge alleging that Petitioner had made the false statement because he was not required to waive his immunity with respect to the use of the statements in a criminal proceeding.

The court, citing Brogan v United States, 522 US 398, explained that "neither the text nor the spirit of the Fifth Amendment confers the privilege to lie." Similarly, in In Matter of Mathis (Commissioner of Labor), 110 AD3d 1412, the Appellate Division held that an employee’s constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully. 

As to the penalty imposed on Petitioner, termination from his position, the Appellate Division said that a court "may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." In this instance, said the court, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Further, there may be unintended consequences if an employee is not truthful in responding to job related inquiries in an effort to avoid disciplinary action. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct than might otherwise have been imposed. Although only federal employees were involved, the ruling may influence cases involving state and local employees.

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Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Decision of the Commissioner of Education, Decision No. 17,011

A teacher [Teacher] appealed the decision of the Board of Education that resulted in his being “excessed” following the abolishment of his position by the Board.  The Commissioner held that his appeal must be sustained in part.

Teacher held permanent certification as a teacher of English 7-12 and a gifted education extension. He was permanently appointed to the position subject to his satisfactory completion of a probationary period and ultimately received tenure in that "area" effective September 1, 2007.

 

Teacher’s position was abolished effective June 30, 2013 whereupon he challenged his being laid-off, contending that the district had “improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents” and he should have been accruing seniority credit in his area of certification pursuant to 8 NYCRR 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area. 

Accordingly, Teacher asked the Commissioner to annul the district’s termination of his employment and direct the school board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

The school district, conceding that it had improperly assigned Teacher to an unrecognized tenure area, argued that Teacher “did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.” In addition, the school district contended that Teacher “failed to mitigate his damages.”

The Commissioner said that in the event a board abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished.”

In this instance, however, the school district mistakenly appointed an educator to a non-existent or incorrect tenure area. Accordingly, said the Commissioner, the school district "had an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing.” In so doing, the Commissioner explained that “it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling.”

On the record before her, the Commissioner said that it was unclear whether the school district ever conducted a detailed analysis of the duties of the position to be abolished.  On the other hand, and conceding that he has never taught in the academic tenure area of English 7-12, Teacher contended that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he was entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Further, Teacher argued that since he was certified in English 7-12, the school district was obligated to assign him to the English 7-12 tenure area, in which tenure area he was not the least senior teacher. 

In contrast, the school district denied the representation that the Teacher’s job duties involved providing instructional support services for a substantial portion of his time, and asserted that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

The Commissioner observed that “it is unclear whether [the school district] ever affirmatively determined the authorized tenure area(s) to which [Teacher’s] position should be reclassified and then determined seniority within such tenure area(s) as it is required to do. Rather, the school district’s superintendent “erroneously asserts that [the school district] could not reclassify [Teacher] to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. However, the Commissioner explained that “a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position.”

The Commissioner ruled that, based on the record before her, Teacher had met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students). Further, noted the Commissioner, Teacher may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services.

Further, the Commissioner determined that the school district failed to refute Teacher’s assertions and the many affidavits submitted on Teacher’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in 8 NYCRR 30-1.1 of the Rules of the Board of Regents. 

However, since it was unclear from the record what percentage of Teacher’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), when Teacher’s position was abolished, the Commissioner ruled that it was  appropriate to remand this matter to school district for a determination of Teacher’s seniority rights with respect to performing instructional support services in the certification area of English 7-12 and Teacher’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, “in accordance with 8 NYCRR 30-1.1 of the Rules of the Board of Regents and this decision.”

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Employee suspended for one year without pay after failing to comply with school directives

Employee suspended for one year without pay after failing to comply with school directives

2016 NY Slip Op 08440, Appellate Division, First Department

The Appellate Division unanimously confirmed the decision of the appointing authority that found a faculty member [Petitioner] guilty of certain charges of misconduct and imposed the penalty of a one-year suspension without pay following a disciplinary hearing that was conducted in absentia.

Noting that Petitioner “was afforded the opportunity to appear at the hearing, which he chose not to attend …,” the court rejected Petitioner’s argument that he was denied due process. The Appellate Division said that substantial evidence supported the appointing officer’s finding that Petitioner engaged in misconduct when he disregarded a school directive that he cease contact with certain faculty members and that he failed to comply with a school directive that he meet with a representative of the Office of Student Affairs.

Further, said the court, the “record belies Petitioner's contention that he was denied due process” in that the charges preferred against him were specified in a two-page letter containing sufficient factual and legal detail to apprise him of the misconduct of which he was accused and the substantive rules he was accused of violating. Indeed, said the Appellate Division, “[t]he initial disciplinary determination, coupled with the hearing exhibits, with which he was supplied, provided Petitioner with factual findings sufficiently detailed to apprise him of the misconduct he was found to have engaged in and to give him a meaningful opportunity to lodge an appeal (of which he availed himself twice).”

The Appellate Division ruled that there was no merit to Petitioner’s contention that he was denied administrative due process as he [1] was apprise him of the misconduct he was alleged to have engaged in; [2] was afforded the opportunity to appear at the hearing, which he chose not to attend and which was then conducted notwithstanding his absence from the proceeding; [3] was provided with detailed written determinations; [4] afforded an administrative appeal process; and [5] obtained judicial review via CPLR Article 78.

Finally, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and; Mamaroneck, Westchester County, 34 NY2d 222, the so-called Pell Doctrine, the court said that the penalty imposed, suspension without pay for one year, did not shock the judicial conscience.

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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. 

Department of Health (DOH): Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (Follow-Up) (2016-F-8) 

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. 

Empire State Development Corp. (ESD): Oversight of International Offices (Follow-up) (2016-F-1) 

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

Clarence Public Library – Audit of Claims (Erie County)

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 of Fort Johnson – Claims Processing (Montgomery County)

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.

Town of Green Island – Justice Court Operations (Albany County)

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.

Village of Lindenhurst – Claims Processing (Suffolk County)

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.

Sayville Public Library – Treasurer (Suffolk County)

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.

Village of Springville – Procurement (Erie County)

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

Belfast Central School District – Procurement (Allegany County)

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.

Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) – Managed Technical Support (2016M-299)

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.

Sherman Central School District – Claims Processing (Chautauqua County)

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.

Southwestern Central School District – Claims Processing (Chautauqua County)

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.

Warsaw Central School District – Financial Management (Wyoming County)

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.

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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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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