Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On October 18, 2023 New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Baldwin Union Free School District – Sexual Harassment Prevention (SHP) Training (Nassau County)

SHP training was not provided to all employees or any board members. Of the 120 total individuals tested (115 selected employees and all five board members), 17 employees and the five volunteer board members did not complete the annual training.

 

Burnt Hills – Ballston Lake Central School District – Employee Benefit Plan Forfeited Funds (Saratoga County)

District officials were not aware that the Health Flexible Spending Arrangement and Dependent Care Assistance Program administrator did not return forfeited funds totaling $25,701 to the district, as required. Because officials did not ensure the forfeited funds were returned, the funds were not available for the district’s use.

 

Eastern Suffolk Board of Cooperative Educational Services – Information Technology (IT) (Suffolk County)

Although BOCES officials restricted user account access to the financial application, they did not adequately manage user account access to the network. As a result, BOCES had an increased risk that the network could be accessed by unauthorized individuals. In addition to sensitive IT control weaknesses that were confidentially communicated to BOCES officials, auditors found that officials did not disable 681 network user accounts that were not needed or logged in to for at least six months.

 

South Kortright Central School District – Claims Audit (Delaware County)

Although the board and district officials generally ensured claims were adequately supported and properly audited prior to payment, certain purchases of goods and services auditors reviewed lacked necessary supporting documentation. In addition, the board did not comply with state law when it appointed the clerk of the board as the deputy claims auditor. The claims auditor and deputy claims auditor, as part of their claims audit process, did not verify that requests for proposals were solicited for seven professional service providers and an insurance provider that were paid a total of $205,042 during the audit period. Auditors found 18 claims totaling $20,834 were approved without documentation to verify compliance with the district’s procurement policy.

 

Village of Remsen – Clerk-Treasurer’s Records and Reports Audit Follow-Up (Oneida County)

The purpose of the review was to assess the village’s progress in implementing our recommendations in the audit report released in January 2021. Based on limited procedures, auditors found the village has not made progress implementing corrective action, as none of the nine audit recommendations were implemented. The board was unable to provide a reasonable explanation for taking no corrective action.

 

Uniondale Union Free School District – Information Technology (Nassau County)

District officials did not adequately manage nonstudent network user accounts and permissions. As a result, the district had an increased risk of unauthorized access to and use of the network and could potentially lose important data. In addition to sensitive IT control weaknesses that were confidentially communicated to officials, auditors found that the technology supervisor did not establish written procedures for granting, changing and disabling nonstudent network user account access or regularly review the accounts to ensure they are necessary. Additionally, they did not disable 3,471  of the enabled nonstudent network user accounts that were not needed.

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Former Town of Marion court clerk sentenced to jail, ordered to pay more than $59,000 in restitution

On October 18, ,2023, New York State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco, and Acting Superintendent of State Police Dominick L. Chiumento announced that the former court clerk for the Town of Marion, Eileen Steurrys, was sentenced to serve six months in jail and pay over $59,000 in restitution after her conviction for embezzling from the town court and altering records in an effort to hide her crimes. 

“Ms. Steurrys thought she could abuse her position to steal from the public and conceal her theft.  She now faces the consequences of her betrayal of the public’s trust,” DiNapoli said. “My thanks to District Attorney Calarco and the State Police for their continuing partnership in combating public corruption.”

Wayne County Assistant District Attorney John Ferlicca said, “Eileen Steurrys abused the trust that had been placed in her by the Marion Town Court. Today she answered to the People of the State of New York for her crimes of using her court clerk position for personal enrichment.”

“The sentencing of Ms. Steurrys should serve as a reminder that those who choose to abuse their public position will be brought to justice,” said Acting Superintendent Dominick L. Chiumento. “This former court clerk stole money from the court to support her own lifestyle. We will not tolerate this illegal behavior or abuse of power. I applaud the work of the State Police members assigned to this case, the State Comptroller’s Office, and the Wayne County District Attorney’s Office for their dedicated and hard work in exposing this fraud.”

Ms. Steurrys' thefts were initially discovered when DiNapoli’s office audited the Town of Marion Court Fund. DiNapoli’s office then partnered with Wayne County District Attorney Calarco’s office and the State Police to investigate her crimes, leading to her arrest and conviction. The joint investigation determined that, from 2016 to 2021, Ms. Steurrys pocketed $59,293 in court fees paid by the public instead of depositing the money in the court’s account and altered court records and created phony receipts in an effort to hide the crimes.

On August 16, 2023, she pled guilty to grand larceny in the second degree, corrupting the government in the second degree, tampering with records in the first degree and official misconduct. Steurrys was sentenced in Wayne County Court.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money can be made by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Probationary employee challenges termination from employment without a hearing

The petitioner [Educator] in this CPLR Article 78 action contended that her termination by the school district [District] without a hearing prior to the end of her probationary period was in violation of §3020-a of the Education Law.

Educator had been appointed as a permanent substitute teacher by the District for the 2015-2016 school year and in September 2016, commenced a four-year probationary period* as a bilingual elementary teacher within the District. Based on the recommendation of the District's superintendent, the District summarily terminated Educator's probationary employment effective August 2, 2020.

Educator challenged the District's action, contending that her substitute teaching experience during the 2015-2016 school year, combined with her probationary service for the 2016-2017 through 2019-2020 school years, satisfied her four-year probationary requirement, and thus she had acquired tenure in her position by estoppel prior to the District's terminating her employment in August 2020.

Supreme Court granted the District's motion to dismiss Educator's Article 78 proceeding. Educator appealed the Supreme Court's ruling.

The Appellate Division sustained Supreme Court decision, explaining:

1. "The Education Law distinguishes between probationary teachers and tenured teachers" and teachers in certain school districts must serve a probationary period of four years;

2. "The employment of a probationary teacher can be terminated at any time during the probationary period, without any reason** and without a hearing, whereas the employment of a tenured teacher can be terminated only after formal disciplinary proceedings;

3. "Tenure by estoppel results 'when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term'; and

4. "Service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher" although "a teacher's probationary term may be reduced through 'Jarema' credit for prior service as a 'regular substitute' teacher'. (See Matter of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110)."

Here, opined the Appellate Division, Educator's petition "alleged [she] was employed as a permanent substitute during the 2015-2016 school year, and the evidentiary submissions conclusively established that the [Educator] taught, as a substitute teacher, several different classes over the 2015-2016 school year and that the longest period that she substituted for the same teacher was 26 days. Under these circumstances, the petition does not support a cause of action alleging tenure by estoppel because, contrary to the [Educator's] contention, her service as a substitute teacher did not constitute probationary service."

Further, said the court, evidence established that Educator "did not serve as a 'regular substitute' during the 2015-2016 school year and, therefore, she is not entitled to Jarema credit".

Accordingly, the Appellate Division held that Supreme Court properly granted the District's motion to dismiss the petition and dismissed the proceeding.

* See Education Law §3012(1)(a).

** N.B. Except as otherwise provided by law or the terms or conditions of a collective bargaining agreement, the employment of a probationary employee may be terminated without a hearing and without a statement of reasons after the completion of the probationer's minimum probationary period, if any, in the absence of a demonstration that the termination was made in bad faith, for a constitutionally impermissible reason or an illegal purpose, or in violation of statutory or decisional law. See Matter of Yonkers Firefighters v City of Yonkers, 165 AD3d 816.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Establishing affirmative defenses to alleged pay-discrimination claims brought pursuant to Federal and New York State laws

In ANITA EISENHAUER v. CULINARY INSTITUTE OF AMERICA, [21-2919-cv], decided October 17, 2023, United States Circuit Court [Second Circuit] Judge JOSÉ A. CABRANES introduced the court's majority decision* as follows:

"This case presents the questions of what a defendant must prove to establish affirmative defenses to pay-discrimination claims under federal and state laws: the Equal Pay Act, 29 U.S.C. §206(d), and New York Labor Law §194(1). 

"Plaintiff Anita Eisenhauer alleges that defendant Culinary Institute of America violated these equal-pay laws by compensating her less than a male colleague. 

"The Culinary Institute responds that a 'factor other than sex' — its sex-neutral compensation plan, which incorporates a collective bargaining agreement — justifies the pay disparity. 

"Eisenhauer argues that the compensation plan cannot qualify as a 'factor other than sex' because it creates a pay disparity unconnected to differences between her job and her colleague’s job."

* CHIEF JUDGE DEBRA ANN LIVINGSTON concurred in the judgment in part and filed a separate opinion.

Click HERE to read more.

 

 

Determinations by certain other entities not binding on a retirement system's medical board if the medical board's decision is supported by substantial evidence

Supreme Court denied Plaintiff's petition to annul Medical Board's determination rejecting Petitioner's application for accidental disability retirement [ADR] benefits and dismissed the proceeding Petitioner brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

The Appellate Division opined "Petitioner has not shown that [the Medical Board's] determination to deny her application for ADR benefits was arbitrary and capricious or made in violation of lawful procedure", citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139.

The court explained the evidence submitted at the hearing included the Medical Board's physical examination of Petitioner and its exhaustive review of the conflicting medical evidence from examining physicians, as well as Petitioner's acknowledgment that she could, without assistance, "perform daily life activities such as bathing, dressing, and walking." The Appellate Division's decision also noted "the Medical Board concluded that [Petitioner] did not complain of pain in her back, neck, and extremities when she went to the emergency room immediately after the accident underlying her request for ADR benefits, and that her various orthopedic problems were part of a normal degenerative process in a middle-aged person."

The Appellate Division's opinion noted that the Medical Board's determination conflicted with the finding of the Social Security Administration that awarded Petitioner disability benefits and Petitioner acknowledged "the finding of the Social Security Administration is not binding on the Medical Board [see Matter of Fusco, 136 AD3d at 451]".

Similarly, public safety officers and firefighters who have been deemed as suffering an occupational injury or disease within the meaning of the Worker's Compensation Law are sometimes disappointed to find that decisions of the Workers' Compensation Board have no bearing on their eligibility for other benefits such as accidental retirement benefits or General Municipal Law §207-a or §207-c benefits. For example, in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals ruled that entitlement to benefits under the Workers' Compensation Law and General Municipal Law §207-c are discrete and entirely independent of one another. 

Click HERE to access the Appellate Division's decision posted on the Internet.

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