Municipal audits issued during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits was issued.

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City of Amsterdam – Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2020-21 adopted budget are not reasonable and other matters that require city officials’ attention. Auditors identified several funds that are not balanced or are not reasonable. The city’s tax levy of $6,047,472 also exceeds the allowable tax levy limit by $187,957. However, the council adopted a local law to override the tax levy limit prior to budget adoption and, as such, was authorized to adopt a budget that included a levy in excess of the tax levy limit.

 

Failure to satisfy procedural requirements bars considering the merits of a CPLR Article 78 petition challenging the termination of a probationary employee

The Petitioner [Teacher] initiated a CPLR Article 78 proceeding in which she challenged her dismissal from her employment as a probationary teacher. Supreme Court dismissed Teacher's Article 78 petition for a number of procedural reasons and Teacher appealed.

Supreme Court dismissed Teacher's petition after determining that Teacher had failed to exhaust her administrative remedies. The decision notes that with respect to the "ineffective" performance rating in her evaluation, her administrative appeal was still pending at the time she had filed her Article 78 petition. The Appellate Division sustained the Supreme Court ruling with respect to Teacher's failure to exhaust her administrative remedy.

Supreme Court had found that Teacher's challenge to the discontinuance of her probationary employment status was time-barred. The Appellate Division affirmed the Supreme Court's ruling concerning the issue of Teacher's failure to file a timely Article 78 petition, explaining that statute of limitations to challenge the decision to terminate her employment as a probationary employee expired on December 12, four months after the effective date of her termination the previous August 11.

Addressing Teacher's motion "to renew," the Appellate Division explained that such a motion must be based upon new facts, i.e., facts that were not offered on Teacher's prior motion "to renew" and that would change the prior determination. As Teacher presented no new relevant facts in the motion to renew she had submitted to Supreme Court, the Appellate Division affirmed Supreme Court's refusal to grant her motion to renew, opining that Teacher's motion to renew failed to meet this standard. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05141.htm

Sisters admit theft of $22,000 of their deceased mother's New York State pension payments

State Comptroller Thomas P. DiNapoli and Westchester County District Attorney Anthony A. Scarpino, Jr. announced the convictions of two sisters alleged to have concealed the death of their mother in order to unlawfully obtain nearly $22,000 from the Retirement System following her death.

The two Westchester County residents each pleaded guilty to one count of felony grand larceny in the fourth degree.* In addition, the sisters have judgments against them to repay the stolen Retirement System funds.

The Comptroller said "[t]hose who try to scam the retirement system will be held accountable" and thanked Westchester County D.A. Scarpino, Jr. "for prosecuting these thefts.”

It was reported that both are to appeared before Westchester County Court Judge David Zuckerman on January 6, 2021, for sentencing.

Individuals may report alleged fraud involving public monies to the State Comptroller by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a report of such allegations to the Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236, or by reporting alleged misconduct using the Internet [investigations@osc.state.ny.us].

Westchester County District Attorney Scarpino, Jr. leads the second largest district attorney’s office in New York State. Individuals may email the District Attorney's Office [info@westchesterda.net] to report allegations of fraud involving public funds.

* New York State Penal Code Article 155, posted on the Internet at http://ypdcrime.com/penal.law/article155.htm