Audits and reports were issued by New York State Comptroller Thomas P. DiNapoli during the week ending September 28, 2018

Audits and reports were issued by New York StateComptroller Thomas P. DiNapoli during the week ending September 28, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

 
City University of New York (CUNY): Controls Over CUNY Fully Integrated Resources and Services Tool (Follow-Up) (2018-F-4)
An initial audit released in September 2016 found that CUNY’s processes and controls did not adequately ensure that users had access only to functions that were necessary to meet their needs. In a follow-up, auditors found CUNY officials have made progress in addressing the issues identified in the initial report. Of the nine prior audit recommendations, one was implemented, six were partially implemented, and two were not implemented.

Department of Labor (DOL): Examination of Unemployment Insurance Willful Overpayments (2016-BSE1-02)
DOL did not consistently assess penalties in accordance with law and/or DOL procedures resulting in the failure to assess up to $311,775 in penalties—more than 10 percent of the penalty amount examined. This includes up to 1,679 penalties valued at $307,753 that were not assessed at all and up to 71 penalties valued at $4,022 that were under-assessed by DOL.

State Education Department: Programs for Little Learners (PFLL): Compliance With the Reimbursable Cost Manual (2017-S-87)
For the three fiscal years ended June 30, 2015, auditors identified $66,597 in ineligible costs that PFLL reported for state reimbursement, including $58,481 in personal service costs and $8,116 in other than personal service costs.

Department of Health (DOH) and the Office of Temporary and Disability Assistance (OTDA): Oversight of Hotels and Motels Used for Homeless Mixed-Use Temporary Residency (Follow-Up) (2018-F-12)
An initial audit report released in June 2017 concluded that, of the 80 hotels and motels auditors visited, 24 (30 percent) were in generally unsatisfactory condition, exhibiting problems such as mold; water damage; structural damage; and fire safety issues, such as exposed wiring and missing smoke detectors. Further, OTDA had not provided local Social Services Districts (SSDs) with sufficient guidance about corrective action plans to address unsatisfactory conditions. In a follow-up, auditors found that OTDA and DOH have implemented the joint recommendation contained in the original audit report, while OTDA has implemented two of its three recommendations.

Department of Health: Examination of Island Peer Review Organization (IPRO) (2018-BSE03-01)
DOH entered into a $79 million contract with IPRO to provide services related to Medicaid activities.  This contract and its amendments were not subject to approval by the Comptroller’s Office. IPRO entered into subcontractor agreements with five firms to help perform the services. Auditors found DOH approved payments to IPRO for subcontractor expenses that were not allowable under the contract. As a result of the audit, DOH prevented or recovered more than $133,000 in unallowable expenses. DOH has since strengthened their review of similar contract payments.

Department of Health (DOH): Medicaid Payments to Medicare Advantage Plan Providers (2016-S-54)
Auditors reviewed selected Medicare Advantage plan contracts offered by Fidelis and WellCare and, based on judgmental sampling, determined certain providers reported inflated Medicare Part C cost-sharing liabilities on 7,072 Medicaid claims resulting in overpayments of $770,935. Auditors determined three of the providers were overpaid 58, 74, and 79 percent of the total Medicaid payments they received for claims in the review. Auditors analyzed the remaining Part C cost-sharing claims billed by these providers during the audit period and found – if the rate of overpayment is consistent with the initial review – Medicaid potentially overpaid an additional $562,356 to these providers.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 150,000 contracts, billions in state payments and public authority data. 

 

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

The availability of General Municipal Law §50-e(1)(b) rights to "defense and indemnification" to a municipal employees in an action brought in federal court

Richard Hardy  v Daley et. al., [New York City police officers in their personal rather than their official capacities], United States Court of Appeals, Second Circuit, C.V. 17‐2906

The United States District Court, Southern District, dismissed Richard Hardy's amended complaint alleging sexual assault, intentional infliction of emotional distress, and failure to intervene federal civil rights claims with prejudice for failure to state a cause of action.

The Circuit Court sustained the district court's ruling with respect to the federal civil rights claims explaining that such a complaint must plead "enough facts to state a claim to relief that is plausible on its face ... and allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Hardyʹs federal complaint, however, included New York State law claims, which the district court dismissed "failure to serve a timely notice of claim." The Circuit Court ruled that the district court had err in so doing.

Under New York law, explained the Circuit Court, service of a notice of claim is a condition precedent to tort actions against a municipal entity or its employees and these provision apply "to state law claims even when they are brought in federal court." In contrast, in actions commenced against a municipal employee but not against the employing municipal corporation,* the service of a notice of claim upon the corporation is "required only if the corporation has a statutory obligation to indemnify [the employee]" pursuant to §50-e(1)(b) of the General Municipal Law.

A municipality, however, is required to indemnify its employee only if his or her liability arose as the result of an act or omission constituting conduct "within the scope of his [or her] employment and in the discharge of his [or her] duties." Noting that Hardyʹs state law tort claims against defendants in their individual capacities are founded on alleged conduct that would be well beyond the scope of employment the Circuit Court explained that such allegations "would, by definition, have constituted 'intentional wrongdoing' [whereby] defendants would not have a right to indemnification by their public employer" otherwise available to such employees pursuant to §50-e(1)(b) of the General Municipal Law.

Accordingly, the Circuit Court found that Hardyʹs state law tort claims were not procedurally barred for failure to file a notice of claim and remanded the case is "for further proceedings consistent with this ruling."

* Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law. The defendants are New York City police officers being sued in their personal rather than their official capacities and the City of New York is not a defendant in this action.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/doc/17-2906_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ed1af089-8cc6-4bef-b0d9-6a58e44cfc23/4/hilite/

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court decisions that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/doc/17-2045_SO.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ad835c46-7c98-435f-8b11-09d6d90547f6/1/hilite/

How much privacy do public employees actually have?

How much privacy do public employees actually have?

Source: WORKFORCE, a publication of Governing.com

The digital age, new laws and recent events have created tension between government's transparency and the privacy of the people who work for it.

The full text of the article is posted on the Internet at:

http://www.governing.com/topics/workforce/gov-government-public-employee-privacy.html?utm_term=How%20Much%20Privacy%20Do%20Public%20Employees%20Actually%20Have&utm_campaign=LGBT%20Rights%27%20Longtime%20Leader%20Becomes%20Transgender%20Battleground%20State&utm_content=email&utm_source=Act-On+Software&utm_medium=email