New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Audit of State Agencies Recommends Better Tracking of Food Purchases from Local Farmers
The Department of Agriculture and Markets and the Office of General Services are now directing all state agencies to submit better reporting of their purchases of New York produced foods according to an auditby State Comptroller Thomas P. DiNapoli found numerous problems. 

 Former Treasurer Arrested in Village of Millport Theft
Former Village of Millport Treasurer Dawn Haverley was arrested for felony grand larceny after an investigation and audit found she allegedly stole more than $4,000 in public funds.


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Town of Carlisle – Fund Balance (Schoharie County)
The board has not developed a fund balance policy or comprehensive long-term financial and capital plans specifying the town"s objectives and goals for using accumulated funds. General fund balance totaled $623,000 at the end of 2016, more than 950 percent of the tax levy and approximately three times actual expenditures that year. 

Keeseville Volunteer Fire Department – Financial Operations (Clinton County)
Department officials did not deposit or account for all donations received or deposit money received from fundraisers and lounge sales. Deposits totaling approximately $158,300 were not supported by adequate documentation. Department officials did not approve 499 disbursements totaling $63,010 before payment was made. 

City of Niagara Falls – Financial Condition (Niagara County)
The city did not maintain a multiyear financial plan and has continued to rely on unreliable revenues and one-time funding sources. From fiscal years 2014 through 2017, city officials balanced the budget using primarily casino revenue, averaging $9 million, and fund balance, averaging $2.9 million. By the end of 2017, auditors project that the city will deplete available fund balance. Assuming no additional casino revenue is received, the city will have a projected general fund budget gap of $12 million for 2019.

Village of Sagaponack – Claims Processing (Suffolk County)
The board did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved, complied with statutory or village requirements or that claims were for proper village purposes. As a result, the board does not have adequate assurance that goods and services are purchased at the best price.

Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d)

Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d) 
Matter of Clemons (Village of Freeport--Commissioner of Labor), 2017 NY Slip Op 04333, Appellate Division, Third Department

Labor Law §565[2], in pertinent part, provides for certain exclusions from eligibility for unemployment insurance benefits. In addition to services not included pursuant to the provisions of §511 the Labor Law, the term "employment" does not include services rendered for a governmental entity by a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency.

The Village of Freeport, Nassau County, [Village] sustained extensive damage as a result of Hurricane Sandy and was declared a major disaster by federal, state and local governments and ultimately received federal funding to assist it with its clean-up and restoration efforts. Village hired two individuals [Claimants] as temporary laborers to help with these clean-up and restoration efforts.

Following the end of their employment by the Village, Claimants filed applications for unemployment insurance benefits, and, over Freeport's objection, the Department of Labor issued initial determinations finding that the wages paid to Claimants were not excluded under Labor Law §565(2)(d) and thus Claimants were entitled to receive unemployment insurance benefits. Ultimately the Unemployment Insurance Appeal Board sustained the Department's determinations and Freeport appealed.

Freeport challenged the Unemployment Insurance Appeal Board ruling that the two Claimants were eligible to receive unemployment insurance benefits because they were not employees of Freeport within the meaning of Labor Law §565(2)(d). Freeport, on the other hand, argued that Claimants fell within the ambit of this statutory exclusion and thus were ineligible for unemployment insurance benefits.

The Appellate Division affirmed the Board's determination, explaining that for the  purposes of determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d), "Whether this exclusion applies presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis"

It was not disputed that Claimants were hired on a temporary basis because of the damage caused by the hurricane. The court said that "the controverted issue is whether the cited exclusion applies and, more specifically, whether the services provided by . [an] emergency."

Claimants had been hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane. However, they both, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by Claimants were related to the hurricane clean-up efforts but "not performed in case of an emergency," the Board also noted that the Claimants were hired almost a year after the hurricane and at a time when "there was no need for immediate action."

The Board, said the Appellate Division, also relied upon a Program Letter issued by the United States Department of Labor [DOL] that provided the DOL's interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency. Letter No. 22-97 stated that "the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed" and that, if the services performed occur "after the need for immediate action has passed, they are not necessarily performed in case of emergency.

As Claimants were employed by Freeport  nearly a year after the hurricane, the court found that there was a rational basis for the Board's decision that the exclusion did not apply and that the services performed by Claimants "were in covered employment" and thus they were eligible for unemployment insurance benefits.

Accordingly, the Appellate Division said that it found "no reason to disturb the decisions of the Board" regarding Claimants.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_04333.htm

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

OATH Index No. 2307/17

A New York City job opportunity specialist [Specialist] was served with disciplinary charges pursuant to Civil Service Law §75 for allegedly having engaged in disrespectful and intimidating behavior directed towards her superiors.

The Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found that on one occasion the Specialist had "loudly confronted the director of her work location to complain about her supervisor," using inappropriate and offensive language. The Specialist also refused to leave the director’s office after she was instructed to do so.

The ALJ found that on another occasion the Specialist "snatched a document from, pointed her finger, and yelled at her supervisor."

In addition, Judge Addison found that the Specialist's employer established that the Specialist failed to follow her supervisor’s instructions on three occasions.  

Considering that the Specialist had had no prior discipline action taken against her, the ALJ said "This tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employer sought to have the Specialist suspended without pay for 35 days, ALJ Addison said that she found such a penalty "excessive" and  recommended the Specialist be given a 20-day suspension without pay as the penalty for the Specialist's proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2307.pdf

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