New York State Comptroller DiNapoli Releases Audits

New York StateComptroller DiNapoli Releases Audits

On December 14, 2018 New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations

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State Education Department (SED): Volunteers of America – Greater New York Inc.: Compliance With the Reimbursable Cost Manual (2017-S-32)
Auditors identified $1.6 million in reported costs that did not comply with requirements for state reimbursement, including $541,775 paid to 38 individuals who did not work in VOA-GNY’s SED preschool programs.


Department of Health (DOH): Medicaid Program: Improper Medicaid Payments for Childhood Vaccines (2017-S-41)

Auditors identified $32.7 million in improper Medicaid payments for costs related to administering Vaccines for Children program vaccines between Jan. 1, 2012 and May 31, 2017. Medicaid payments were made for free vaccines and payments of the fee to administer the vaccines were not always accurate.

Department of Health (DOH): Criminal History Background Checks of Unlicensed Health Care Employees (Follow-Up) (2018-F-13)
An initial audit concluded that DOH generally met its obligations for conducting background checks on unlicensed employees of Nursing Homes, Adult Care Facilities and Home Health Care providers. However, auditors identified 24 applicants whose determination letters were not completed timely and, as a result, the individuals could have been allowed to work for periods ranging from 2 months to as long as 28 months without final clearance. In a follow-up, auditors found DOH has made significant progress addressing the issues identified in the original audit.

Department of Labor (DOL): Examination of Unemployment Insurance Benefit Payments, January 1, 2017 – December 31, 2017 (2018-UI-01)
Auditors identified 2,956 overpayments totaling nearly $1.1 million and 902 underpayments totaling more than $98,000.  Based on the overpayments identified, DOL assessed $1,852,169 in penalties to claimants who made false statements or representations to obtain benefits to which they were not entitled.  

New York Power Authority (NYPA): Selected Management and Operations Practices (Follow-Up) (2017-F-17)
A prior audit, issued on August 1, 2016, found that NYPA reported certain information to the public that was incomplete and could lead the public to draw incorrect conclusions about the ReCharge New York (RNY) program. NYPA reported job commitments and included businesses that were awarded a power allocation, but were in pending status because they did not sign a contract. In some cases, these businesses later declined the contracts. In June 2015, this resulted in an overstatement of job commitments reported by 29,795, or 7.7 percent. In a follow-up, auditors found that officials have made progress in addressing the issues identified in our initial report. Of the 12 prior audit recommendations, two were implemented, seven were partially implemented, and three were not implemented.

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08594.htm

Applying the Vehicle and Traffic Law's qualified statutory privilege available to drivers of emergency vehicles involved in an accident

Applying the Vehicle and Traffic Law's qualified statutory privilege available to drivers of emergency vehicles involved in an accident

Chesney v City of Yonkers, 2018 NY Slip Op 08277, Appellate Division, Second Department

Edward Chesney was struck by a City of Yonkers police vehicle as he attempted to cross a street within a crosswalk against a traffic light in Yonkers and sustained personal injuries. Chesney sued the City to recover damages for the injuries he has suffered, advancing the theory injury-causing conduct of the driver of the police vehicle was governed by the "principles of ordinary negligence."

Yonkers moved for summary judgment dismissing the complaint, contending that the police officer's conduct in the operation of the vehicle was governed by the "reckless disregard standard of care" under the qualified statutory privilege for drivers of emergency vehicles engaged in emergency operations set our in Vehicle and Traffic Law §1104[e].

Supreme Court applied the reckless disregard standard of care, and granted the City's motion for summary judgment dismissing the complaint. Chesney appealed.

The Appellate Division explained that the reckless disregard standard of care set out in Vehicle and Traffic Law §1104(e)* "applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by §1104(b)" and "Vehicle and Traffic Law § 1104(b)(3) permits the driver of an authorized emergency vehicle involved in an emergency operation to "[e]xceed the maximum speed limits so long as he [or she] does not endanger life or property." Any other injury-causing conduct of such a driver, said the court, is governed by the principles of ordinary negligence, citing Kabir v County of Monroe, 16 NY3d 217.

The Appellate Division said that Yonkers, in support of its motion for summary judgment, had submitted evidence, including a surveillance video of the accident and deposition transcripts sufficient to show that, at the time of the accident, the police officer was operating an authorized emergency vehicle and involved in an emergency operation, and that he was operating the vehicle in excess of the maximum speed limit. In addition, said the court, Yonkers "demonstrated that, based upon the speed of the vehicle, the officer was unable to stop his vehicle in time to avoid a collision with the plaintiff."

As the "injury-causing conduct" was operation of the vehicle in excess of the speed limit, the Appellate Division said that Supreme Court properly applied the reckless disregard standard of care. The court noted that Yonkers had submitted evidence demonstrating, prima facie, that "the police officer's vehicle had a green light, that Chesney was in the crosswalk near the middle of the road attempting to cross the street against the light, and the officer attempted to brake in order to avoid contact." In contrast, the Appellate Division noted that Chesney failed to raise a triable issue of fact as to whether the officer acted with reckless disregard for the safety of others.

Accordingly, the Appellate Division sustained Supreme Court's granting of Yonkers' motion for summary judgment dismissing the complaint. 

* (e) This provisions does not relieve the driver of an authorized emergency vehicle from his or her duty to drive with due regard for the safety of all persons, nor do these provisions protect the driver from the consequences of his or her reckless disregard for the safety of others.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08277.htm

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Human Resources Admin. v. Brown, OATH Index No. 161/19

A case worker was charged with confronting a security officer at the facility where they worked, using profanity and physically restraining the security officer.

It was also alleged that when the security officer’s supervisor arrived on the scene and directed the officer to her post, the case worker continued to restrain the officer, pushed the supervisor, and directed profanity at the supervisor.

Following a two-day trial, OATH Administrative Law Judge Astrid B. Gloade found testimony of the security guard and her supervisor more credible than the case worker’s testimony concerning the event and she sustained the charges.

Judge Gloade recommended that the appointing authority impose a penalty of a thirty-day suspension without pay, with credit for time served during a pre-trial suspension by the employee.