State Comptroller DiNapoli Releases Audits

State Comptroller DiNapoli Releases Audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations December 5, 2018

Click on text highlighted in color to access the full report

Department of Environmental Conservation (DEC): Oversight of the Pesticide Reporting Law (2017-S-57)
Tests of samples of pesticide application and sales data entries found that they were reasonably accurate based on the certified applicators’ and sellers’ self-reported data. However, there are some inaccuracies in the database.

Gaming Commission: Equine Health and Safety (2017-S-77)
The commission’s director has implemented new measures to improve its practices to promote equine health and safety in New York state. However, auditors found the commission could better document daily operating policies and procedures; improve how incident information is recorded in the Equine Breakdown, Death, Injury and Incident Database; and ensure adherence to drug testing requirements.

Higher Education Services Corporation: Oversight of the STEM Incentive Program (2017-S-75)
Auditors found HESC did not always ensure that applicants met Science, Technology, Engineering, and Mathematics (STEM) Incentive Program eligibility requirements. Auditors tested a random sample of 271 award recipients at the three universities that received the most program payments (SUNY Binghamton, SUNY Buffalo, and SUNY Stony Brook) and found that HESC made $81,198 in payments on behalf of 20 recipients who did not meet the program requirements.

Division of Homeland Security and Emergency Services: Awarding and Oversight of Statewide Interoperable Communications Grants (Follow-Up) (2018-F-27)
An initial audit issued in July 2017 examined whether the division awarded contracts to entities that met eligibility requirements and provided adequate oversight of Statewide Interoperable Communications Grant (SICG) awards to ensure grant funds were allocated and spent for intended purposes. Auditors concluded that the division awarded SICG funding to qualified recipients in accordance with its requirements. However, auditors identified process deficiencies in the areas of monitoring and documentation that could increase the risk of inappropriate use of funds. In a follow-up, auditors found the division has significantly addressed the issues identified in the original audit. Of the three prior recommendations, all three were implemented.

Homes and Community Renewal, Housing Finance Agency (HFA): The 80/20 Housing Program (Follow-Up) (2018-F-18)
An initial audit report issued in May 2017, concluded that, based on the rents charged for our four sampled developments, the proper number of affordable units were made available to low-income tenants. A review of the files for a sample of 43 low-income tenants found that the developments used "reasonable judgment" in determining eligibility. However, some problems were found. In a follow-up, auditors found HFA has made some progress in addressing the issues identified in the prior report. Of the three recommendations, one was implemented and two were not implemented.

Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Maintenance, Inspection, and Testing of the Event Recorder System (2017-S-8)
Auditors determined that the LIRR has a maintenance and inspection program for its Event Recorder System; however, it was not always in compliance with the program. For example, from Jan. 1, 2014 to Feb. 27, 2017, there were five months when the non-functioning ERS exceeded the 10 percent “effective maintenance standard” established by the Federal Railroad Administration.

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2018-F-9)
An initial report issued in July 29, 2016 found that while 9,604 offenders overseen by the office received court orders to install an ignition interlock device (IID), only 1,952 (20 percent) did. Auditors also found material non-compliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. In a follow-up, auditors found the office has made significant progress in addressing the issues identified in our initial report.

State Education Department (SED): Bank Street College of Education: Compliance With the Reimbursable Cost Manual (2017-S-5)
For the fiscal year ended June 30, 2014, auditors identified $585,047 in ineligible costs that Bank Street reported for state reimbursement. These ineligible costs included $338,175 in personal service costs, $246,707 in administrative overhead costs, and $165 in other than personal service costs.

State Education Department (SED): Security Over Critical Information Systems (Follow-Up) (2018-F-17)
An initial audit report issued in July 2017, found that although SED had taken a number of steps to secure its critical information systems and associated data, there was still a risk that unauthorized persons could access these systems. In a follow-up, auditors found SED officials have not made significant progress in correcting the problems identified in the initial report. Of the two recommendations, one has been partially implemented and one has not been implemented.

State Education Department (SED): NYSARC Inc. – NYC Chapter: Compliance With the Reimbursable Cost Manual (2017-S-47)
For the three fiscal years ended June 30, 2015, auditors identified $1,311,070 in reported costs that did not comply with requirements for state reimbursement and recommended such costs be disallowed. These ineligible costs included $791,114 in personal service costs and $519,956 in other than personal service costs.

Employee alleges unlawful retaliation after reporting the unauthorized use of a computer program by another employee

Employee alleges unlawful retaliation after reporting the unauthorized use of a computer program by another employee

Gorman v Rensselaer County et al, USCA Second Circuit, No.17-1120-cv

John Gorman alleged that the Rensselaer County defendants in this Civil Rights action brought pursuant to 42 U.S.C. §1983 retaliated against him in violation of his First Amendment rights as the result of his filing a report that a fellow employee in the Sheriff’s Department had misused the New York State's Division of Criminal Justice Services' [DCJS] "eJusticeNY" program.*

DCJS' eJusticeNY computer program is a digital repository of criminal justice information, including information concerning individuals outside New York State, and is used by law enforcement agencies throughout New York.

The auditor of the eJusticeNY program had been advised that the program had been used by a county correction officer to run an unauthorized background check for allegedly personal reasons. The matter was ultimately referred to the District Attorney.

The correction officer reported by Gorman to have accessed the eJusticeNY for personal reasons was suspended from work, charged with misuse of the eJusticeNY program and subsequently pleaded guilty to “misuse of a computer,” a misdemeanor.

In adjudicating Gorman's civil rights complaint, the Circuit Court found it necessary to address a number of collateral issues, including the following:

1. Protected speech

Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer’s retaliation. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). Whether an employee’s speech constitutes a matter of public concern is a question of law. Id. “Only if the court concludes that the employee did speak in this manner does it move on to the so-called Pickering balancing, at which stage ‘a court . . . balances the interests of the employer in providing effective and efficient public services against the employee’s First Amendment right to free expression.’” Id. (quoting Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999)).

“To constitute speech on a matter of public concern, an employee’s expression must ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

But speech that “primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Id. (internal quotation marks and alteration omitted). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48.

Relevant considerations include “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Lewis, 165 F.3d at 163–64.

[See, also, https://publicpersonnellaw.blogspot.com/2015/09/a-public-employees-first-amendment_23.html]

2. Qualified immunity

“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted).

Clearly established law “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Walker v. Schult, 717 F.3d 119, 125–26 (2d Cir. 2013) (quoting Ashcroft v. Kidd, 563 U.S. 731, 741 (2011)). “Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and alteration omitted).

[See, also, https://publicpersonnellaw.blogspot.com/search?q=qualified+immunity]

3. Official misconduct

“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Jackler, 658 F.3d at 236 (citation and internal quotation marks omitted). In Jackler, the plaintiff was a probationary police officer who corroborated a civilian complaint of excessive force, and resisted pressure to conceal the misconduct. Id. at 230–31.

Observing that the Fourth Amendment prohibits the use of excessive force by police, and that the misconduct at issue implicated “public safety and welfare” and the “preservation of the public fisc,” we held that “police malfeasance consisting of the use of excessive force is plainly a matter of public concern.” Id. at 236-37.

At the same time, “[n]o authority supports [the] argument that reporting an alleged crime always implicates matters of public concern.” Nagle, 663 F.3d at 107. In Nagle, the plaintiff was a special education teacher who informed several individuals that her signature had been forged on an official report. Id. at 103. The forgery was not a matter of public concern because, “even if such conduct were criminal, [it] had no practical significance to the general public.” Id. at 107. Furthermore, the forgery did not reveal “an ongoing pattern of conduct or even a particularly important instance of bad judgment” that might implicate public concern. Id. at 108.

[See, also, https://publicpersonnellaw.blogspot.com/2010/08/official-misconduct.html]

* The Division of Criminal Justice Services has a variety of responsibilities, including law enforcement training; collection and analysis of statewide crime data; maintenance of criminal history information and fingerprint files; administrative oversight of the state's DNA databank, in partnership with the New York State Police; funding and oversight of probation and community correction programs; administration of federal and state criminal justice funds; support of criminal justice-related agencies across the state; and administration of the state's Sex Offender Registry.

The Gorman decision containing these observations is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/doc/17-1120_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/hilite/

Determining the appropriate evidence standard to be applied in a disciplinary action

Determining the appropriate evidence standard to be applied in a disciplinary action

Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021, Appellate Division, Second Department

Joe Nell Johnson II, a tenured teacher employed by the Riverhead Central School District, was served with disciplinary charges pursuant to Education Law §3020-a alleging that he was guilty of misconduct that was "incompatible with the standards required to be seen as a positive role model for the students."

Ultimately the disciplinary hearing officer found Johnson guilty of the charges filed against him and directed the school district to terminate his employment.

Johnson filed a petition pursuant to CPLR Article 75 seeking a court order vacating the hearing officer's determination. Supreme Court denied Johnson's petition and dismissed the proceeding, whereupon Johnson appealed the Supreme Court's ruling to the Appellate Division contending that the hearing officer should have applied the preponderance of the evidence standard in making his findings.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

However §3032-a.3, as amended, provides that the Commissioner of Education, "upon receipt of a request for a hearing in accordance with subdivision two of this section" the commissioner shall notify the American Arbitration Association of the need for a hearing and request the Association to provide a list of names of persons from the Association's panel of labor arbitrators to serve as hearing officers. Accordingly, in Martin v Ambach, 67 NY2d 975, the Court of Appeals held that to determine whether charges were properly brought under Education Law §3020-a, the proper standard is “preponderance of evidence”, not substantial evidence.

The Appellate Division then pointed out that where the obligation to arbitrate arises through a statutory mandate such as §3020-a, the hearing officer's determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would otherwise receive. Here the parties were required to arbitrate the disciplinary action as mandated by statute. In the words of the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, in an Article 75 review of the hearing officer's determination the court considers "whether the decision was rational or had a plausible basis" but, as the Court of Appeals held in Matter of Berenhaus v Ward, 70 NY2d 436, when reviewing compulsory arbitrations in §3020-a proceedings the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

Finding that the hearing officer's determination has evidentiary support and was not arbitrary and capricious, the Appellate Division held that Johnson [1] was provided with adequate notice of the charges that was reasonably specific and in light of all the relevant circumstances Johnson [2] was apprised of charges against him sufficient "to allow for the preparation of an adequate defense."

As to the penalty imposed by the hearing officer, termination, the Appellate Division said that the penalty of termination "was not irrational or shocking to one's sense of fairness."

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08021.htm

State Comptroller DiNapoli Releases Audits

State Comptroller DiNapoli Releases Audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations December 5, 2018

Click on text highlighted in color to access the full report

Department of Environmental Conservation (DEC): Oversight of the Pesticide Reporting Law (2017-S-57)Tests of samples of pesticide application and sales data entries found that they were reasonably accurate based on the certified applicators’ and sellers’ self-reported data. However, there are some inaccuracies in the database.

Gaming Commission: Equine Health and Safety (2017-S-77)The commission’s director has implemented new measures to improve its practices to promote equine health and safety in New York state. However, auditors found the commission could better document daily operating policies and procedures; improve how incident information is recorded in the Equine Breakdown, Death, Injury and Incident Database; and ensure adherence to drug testing requirements.

Higher Education Services Corporation: Oversight of the STEM Incentive Program (2017-S-75)Auditors found HESC did not always ensure that applicants met Science, Technology, Engineering, and Mathematics (STEM) Incentive Program eligibility requirements. Auditors tested a random sample of 271 award recipients at the three universities that received the most program payments (SUNY Binghamton, SUNY Buffalo, and SUNY Stony Brook) and found that HESC made $81,198 in payments on behalf of 20 recipients who did not meet the program requirements.

Division of Homeland Security and Emergency Services: Awarding and Oversight of Statewide Interoperable Communications Grants (Follow-Up) (2018-F-27)An initial audit issued in July 2017 examined whether the division awarded contracts to entities that met eligibility requirements and provided adequate oversight of Statewide Interoperable Communications Grant (SICG) awards to ensure grant funds were allocated and spent for intended purposes. Auditors concluded that the division awarded SICG funding to qualified recipients in accordance with its requirements. However, auditors identified process deficiencies in the areas of monitoring and documentation that could increase the risk of inappropriate use of funds. In a follow-up, auditors found the division has significantly addressed the issues identified in the original audit. Of the three prior recommendations, all three were implemented.
Homes and Community Renewal, Housing Finance Agency (HFA): The 80/20 Housing Program (Follow-Up) (2018-F-18)An initial audit report issued in May 2017, concluded that, based on the rents charged for our four sampled developments, the proper number of affordable units were made available to low-income tenants. A review of the files for a sample of 43 low-income tenants found that the developments used "reasonable judgment" in determining eligibility. However, some problems were found. In a follow-up, auditors found HFA has made some progress in addressing the issues identified in the prior report. Of the three recommendations, one was implemented and two were not implemented.

Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Maintenance, Inspection, and Testing of the Event Recorder System (2017-S-8)Auditors determined that the LIRR has a maintenance and inspection program for its Event Recorder System; however, it was not always in compliance with the program. For example, from Jan. 1, 2014 to Feb. 27, 2017, there were five months when the non-functioning ERS exceeded the 10 percent “effective maintenance standard” established by the Federal Railroad Administration. 

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2018-F-9)An initial report issued in July 29, 2016 found that while 9,604 offenders overseen by the office received court orders to install an ignition interlock device (IID), only 1,952 (20 percent) did. Auditors also found material non-compliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. In a follow-up, auditors found the office has made significant progress in addressing the issues identified in our initial report. 

State Education Department (SED): Bank Street College of Education: Compliance With the Reimbursable Cost Manual (2017-S-5)
For the fiscal year ended June 30, 2014, auditors identified $585,047 in ineligible costs that Bank Street reported for state reimbursement. These ineligible costs included $338,175 in personal service costs, $246,707 in administrative overhead costs, and $165 in other than personal service costs. 

State Education Department (SED): Security Over Critical Information Systems (Follow-Up) (2018-F-17)
An initial audit report issued in July 2017, found that although SED had taken a number of steps to secure its critical information systems and associated data, there was still a risk that unauthorized persons could access these systems. In a follow-up, auditors found SED officials have not made significant progress in correcting the problems identified in the initial report. Of the two recommendations, one has been partially implemented and one has not been implemented.

State Education Department (SED): NYSARC Inc. – NYC Chapter: Compliance With the Reimbursable Cost Manual (2017-S-47)
For the three fiscal years ended June 30, 2015, auditors identified $1,311,070 in reported costs that did not comply with requirements for state reimbursement and recommended such costs be disallowed. These ineligible costs included $791,114 in personal service costs and $519,956 in other than personal service costs.

Remedy to be provided in the event the rejection of an administrative appeal was marred by a procedural error

Remedy to be provided in the event the rejection of an administrative appeal was marred by a procedural error

Clark v NYS Board of Parole, 2018 NY Slip Op 08071, Appellate Division, First Department

Supreme Court granted the petition to annul the determination of the Commissioners of the New York State Department of Parole [Board] affirming the determination of a panel of the Board denying Petitioner's application for parole. Supreme Court then remanded the matter for a new review before a new panel of the Board. The Board appealed the court's decision.

The Appellate Division unanimously modified the Supreme Court's ruling on the law, reinstating the panel's denial of parole but remanded the matter to the Commissioners of the Board for a new administrative appeal of that action to be considered by a new panel.

The Appellate Division explained that Supreme Court had correctly determined that the rejection of the administrative appeal was marred by procedural error when the administrative Panel permissibly considered communications in opposition to a Petitioner's application for parole submitted by public officials and members of the community and refused to provide the Petitioner with access to any of the communications it had considered in connection with the Petitioner's application for parole.

However, said the Appellate Division, the correct remedy for this procedural error in the conduct of the Panel is the annulment of the decision and the remand of the matter for new administrative appellate proceedings in which the Board should turn over the requested material, with any authorized and necessary redactions, to the Petitioner rather than the annulment of the initial denial of parole by the Panel as the matter must still undergo a proper administrative review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08071.htm

Determining the appropriate evidence standard to be applied in a disciplinary action

Determining the appropriate evidence standard to be applied in a disciplinary action

Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021, Appellate Division, Second Department

Joe Nell Johnson II, a tenured teacher employed by the Riverhead Central School District, was served with disciplinary charges pursuant to Education Law §3020-a alleging that he was guilty of misconduct that was "incompatible with the standards required to be seen as a positive role model for the students."

Ultimately the disciplinary hearing officer found Johnson guilty of the charges filed against him and directed the school district to terminate his employment.

Johnson filed a petition pursuant to CPLR Article 75 seeking a court order vacating the hearing officer's determination. Supreme Court denied Johnson's petition and dismissed the proceeding, whereupon Johnson appealed the Supreme Court's ruling to the Appellate Division contending that the hearing officer should have applied the preponderance of the evidence standard in making his findings.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

However §3032-a.3, as amended, provides that the Commissioner of Education, "upon receipt of a request for a hearing in accordance with subdivision two of this section" the commissioner shall notify the American Arbitration Association of the need for a hearing and request the Association to provide a list of names of persons from the Association's panel of labor arbitrators to serve as hearing officers. Accordingly, in Martin v Ambach, 67 NY2d 975, the Court of Appeals held that to determine whether charges were properly brought under Education Law §3020-a, the proper standard is “preponderance of evidence”, not substantial evidence.

The Appellate Division then pointed out that where the obligation to arbitrate arises through a statutory mandate such as §3020-a, the hearing officer's determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would otherwise receive. Here the parties were required to arbitrate the disciplinary action as mandated by statute. In the words of the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, in an Article 75 review of the hearing officer's determination the court considers "whether the decision was rational or had a plausible basis" but, as the Court of Appeals held in Matter of Berenhaus v Ward, 70 NY2d 436, when reviewing compulsory arbitrations in §3020-a proceedings the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

Finding that the hearing officer's determination has evidentiary support and was not arbitrary and capricious, the Appellate Division held that Johnson [1] was provided with adequate notice of the charges that was reasonably specific and in light of all the relevant circumstances Johnson [2] was apprised of charges against him sufficient "to allow for the preparation of an adequate defense."

As to the penalty imposed by the hearing officer, termination, the Appellate Division said that the penalty of termination "was not irrational or shocking to one's sense of fairness." 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08021.htm