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.

Taylor Law amended to clarify an employee organization's duty of fair representation of non-members in a collective bargaining unit  

Section 209-a.2 of the Civil Service Law

In Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 138 SCt 2448, the Supreme Court held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

In response to the Janus decision, §209-a.2 of the Civil Service Law was amended and now provides* that it is not a violation of an employee organization's duty of fair representation if the employee organization limits its services to and representation of non-members in accordance with this subdivision or declines to provide representation to a non-member in the relevant negotiating unit:

[1] during questioning by the employer;

[2] in statutory or administrative proceedings;

[3] to enforce statutory or regulatory rights; or

[4] at any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to [i] proceed without the employee organization and [ii] be represented by his or her own advocate.

[5] the employee organization is not prohibited from providing legal, economic or job-related services or benefits beyond those provided in the relevant collective bargaining agreement with a public employer "only to its members."

In addition, §209-a.3 provides that in the event a charge  is filed alleging that the employee organization has breached its duty of fair representation in its processing of, or it failure to process, a claim, the public employer is to be made a party in the action.  

* §4 of Part RRR of Chapter 59 of the Laws of 2018

Other bills signed into law by the Governor:

1. Chapter 271 of the Laws of 2018 amended the §75 of the Civil Service Law to provide that certain  persons  holding  a  position in the Labor Class shall not be removed or otherwise subjected to any disciplinary penalty except  for incompetency or misconduct; and

2. Chapter 403 of the Laws of 2018 directs the President of the New York State Civil Service Commission to study and publish a report evaluating wage disparities among public employers.

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

Decision of the Commissioner of Education, Decision No. 17,544

Brian Butler appealed the decision of the Board of Education of the Massapequa Union Free School Districtto declare his position on the Board vacant and remove him as a board member to the Commissioner of Education. The Commissioner dismissed Butler's appeal.

The record before the Commissioner indicated that Board's president asked all board members to remain for a discussion following a board’s public and executive sessions to address Butler's alleged "public Facebook posts calling for the dismissal of the School District's Superintendent and his references to her as ‘Kim Jong Un,’” for the purpose of discussing "how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”

The Commissioner's decision also included two footnotes reporting:

[1] The record indicates that the School District's recent efforts to reorganize the grade configuration of its schools resulted in considerable animus within the community and among individual board members and the superintendent and that a grade configuration matter came before the Commissioner in three separate appeals on which the Commissioner issued decisions, Appeal of Paglia, et al., 57 Ed Dept Rep, Decision No. 17,251; Appeal of Kaufmann, et al., 57 id., Decision No. 17250; and Appeal of Pulizzi, et al., 57 id., Decision No. 17,249.  The record also indicated that Butler made known on social media in profane and incendiary ways his personal feelings regarding the superintendent and others with whom he disagreed on policy matters; and

[2]  The School Board contended that Butler also failed to attend three consecutive meetings on April 4, April 12 and April 17, 2018 without a valid excuse and that Butler, in an affidavit, asserted that he missed the April 4, 2018 meeting because he was in California and advised the board president of that prior to the meeting.  However, in light of Butler's failure to attend five consecutive meetings without a valid excuse in May-June 2018, which alone is sufficient grounds for vacating Butler’s position pursuant to Education Law §2109, the Commissioner said that she did not need not consider whether the Board properly determined that Butler failed to present a valid excuse for missing the three consecutive meetings in April 2018.

The Board's president had sent a letter to Butleroffering him "an opportunity to attend a special meeting of the board on June 28, 2018 at which [Butler] would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if Butlerfailed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

Butler responded that he would not attend the June 28 meeting because of “a prior business arrangement" but that he would attend a future meeting of board to explain the reason for his absences, "but only if the board president and trustee Baldinger did not attend.  

By letter dated June 29, 2018, the School District's district clerk notified Butler that the Board had declared his seat vacant because of his habitual absences and that, "effective immediately," he was no longer a board trustee.

In his appeal Butlercontended that "he provided [the Board] with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety" and that "the board president did not object to his absences."

In rebuttal, the Board argued that Butler"failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings" and thus "the decision to vacate [Butler's] seat on the board was a proper exercise of its authority that should not be disturbed."

Noting that Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve,” the Commissioner observed that in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner, noting that a board of education makes [1] the determination as to whether a trustee has rendered a valid excuse for missing board meetings and [2] that the excuse tendered is satisfactory to the board, explained the for the Commissioner to overturn the board’s determination, the petitioner must demonstrate that the board was arbitrary and capricious or otherwise abused its discretion in determining that the petitioner had vacated his or her seat.

It is undisputed that Butlerrefused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It was therefore incumbent on Butler to demonstrate that he provided the other trustees a good and valid excuse for his frequent absences from board meetings.  The Commissioner said that on the record before her, Butlerfailed to meet that burden.

On this record, said the Commissioner, Butler failed to meet his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018, nor has Butler demonstrated that the Board's rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Accordingly, ruled the Commissioner, "... based on the record before me, I cannot conclude that [the Board's] decision to declare [Butler's] position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17544