ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

December 23, 2023

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

On December 21, 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


Town of Ballston – Water Fund Financial Operations (Saratoga County)
Officials did not provide adequate oversight of water fund operations. As a result, delinquent accounts were not accurately re-levied, and the town did not receive all of the revenue it was entitled to. Officials did not maintain an inventory or list of meters purchased and issued to track costs and ensure rates were applied consistently, and meters were accounted for. In addition, the water clerk inaccurately re-levied all 25 accounts reviewed because she included $3,784 that was not yet overdue. Also, officials did not reconcile water purchased or delivered with water used and could not account for water totaling $300,000. Lastly, to meet minimum purchase requirements, the town paid the Town of
Glenville $135,000 for 38.5 million gallons of water it did not receive or use. Officials could have saved $90,000 of this cost by monitoring water flow.

 

Orleans/Niagara Board of Cooperative Educational Services (BOCES) – Capital Assets
BOCES’ capital asset records were not complete or accurate to ensure that assets were accounted for and protected from loss, theft, misuse and obsolescence. Auditors selected 94 capital assets purchased for $247,918 and identified one or more exceptions for 49 capital assets purchased for $115,351. Specifically: 27, purchased for $33,349, were not recorded in the capital asset records; 13, purchased for $22,099, were recorded with either an incorrect or missing location; and nine, purchased for $59,571, were recorded without a model or serial number. In addition, a wheel balancer and a portable video magnifier purchased for $4,769 could not be located. These discrepancies occurred because staff did not always follow BOCES’ capital asset inventory policy. BOCES officials also did not verify whether capital asset purchases were recorded in the records and did not investigate discrepancies and update the capital asset records when exceptions were found in the June 2022 fiscal year-end physical inventory.

 

Fairport Central School District – Payroll and Employee Benefits (Monroe County)
District officials generally paid the 33 employees tested accurately and properly calculated their leave accruals. However, one of the five employees that received a retirement incentive should not have been paid $2,000 because they retired prior to the end of the school year, a requirement for this incentive.

 

Cattaraugus-Allegany-Erie-Wyoming Board of Cooperative Educational Services (BOCES) – Capital Assets
BOCES’ capital asset records were incomplete and inaccurate. In addition, the BOCES’ purchasing agent was unfamiliar with the requirements of, and did not comply with, BOCES’ capital asset policies. As a result, the required annual inventories were not conducted, and we were unable to locate approximately $31,000 in capital assets, which included tablets, audio equipment, tools, data storage devices and a gaming console. Auditors reviewed capital asset records for 150 assets with a historical recorded cost totaling approximately $149,000 and identified one or more pieces of required information was incorrect or missing from BOCES’ records. Examples of the discrepancies included: 130 assets totaling approximately $133,000 did not have their current value, salvage value or replacement cost recorded; 76 assets totaling approximately $88,000 did not identify the employee to whom the assets were issued; and eight assets totaling approximately $24,000 did not have a recorded serial or identification number.

 

Fire Island Union Free School District – Claims Auditing (Suffolk County)
The board did not properly audit claims before payment. As a result, there was an increased risk that improper or unsupported payments could have been made and may not have been detected and corrected. The board did not develop and adhere to adequate guidance on performing its claims audit duties. Of the 198 claims totaling $258,969 auditors reviewed; 51 claims totaling $82,743 could not be properly audited due to one or more of the following; 17 claims totaling $59,992 contained 53 confirming purchase orders (issued after goods or services were received), which prevented the board’s approval and price verification; and 31 claims totaling $20,714 were missing 28 requestor copies of purchase orders and signatures on another five requestor copies, which prevented the board from ensuring that the business office had authorized payment for the goods and services received. Ten claims totaling $10,980 were missing the audit checklist required by district procedure to verify that all supporting documentation was available for audit of the claim.

 

Herkimer County – Court and Trust Funds
While the treasurer filed an annual report with the Office of the State Comptroller showing court and trust fund activity for 2022, including beginning balances, receipts, payments and ending balances totaling $50,700, the treasurer did not file an annual report for activity in 2021. In addition, the county’s depository did not pay any interest on the court and trust funds or provide the treasurer and the Comptroller’s Office with an annual certificate of cash balances, along with other information, as required by state rules.

 

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December 21, 2023

Summary of a California decision concerning a "leafletting campaign" by a labor union representing nurses and healthcare workers posted on the Internet by Justia

Palomar Health v. Nat. Nurses United

Docket: D080962 (Fourth Appellate District [State of California])

Opinion Date: December 18, 2023

Areas of Law: Government & Administrative Law, Labor and Employment Law

Posted by on the Internet by Justia.

This case is a labor dispute between Palomar Health, a public healthcare district, and unions representing nurses and healthcare workers employed by Palomar Health. 

In 2021, during negotiations to renew their collective bargaining agreements, union organizers began a leafletting campaign outside Palomar Health’s main hospital and sought to meet with employees inside the hospital. Palomar Health responded by filing a complaint for trespass and unlawful picketing in San Diego Superior Court, seeking to ban the organizers from their facilities. 

The unions filed an unfair practice charge with the [State of California's] Public Employment Relations Board (PERB), asserting Palomar Health’s attempts to ban their representatives and the civil lawsuit violated the unions’ rights under the [State of California's] Meyers-Milias-Brown Act.

The trial court overruled the unions’ demurrer and denied their motion to strike, maintaining jurisdiction of the state law claims. On appeal, the unions argued that the trial court lacked jurisdiction over the dispute as their activities were arguably protected by the [State of California's] Meyers-Milias-Brown Act and that jurisdiction fell exclusively under PERB. 

The Court of Appeal, Fourth Appellate District Division One State of California, agreed with the unions, finding that Palomar Health’s claims were preempted and therefore, the trial court lacked jurisdiction over the dispute. The trial court’s order overruling the demurrer was reversed and the matter was remanded with directions to enter an order sustaining the demurrer without leave to amend, and to dismiss the case on the grounds that it is subject to the exclusive jurisdiction of PERB.

Click here to Read Opinion.

 

Handbooks focusing on New York Public Personnel Law

NYPPL e-books concerning laws, rules, regulations, policies, provisions in collective bargaining agreements and court and administrative decisions addressing the employment of individuals in the public service of New York State and its political subdivisions published by BookLocker, Inc.

 

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html

 

A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

 

The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

 

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 


December 20, 2023

Documents that are prepared within the meaning of the attorney-client privilege are exempt from disclosure pursuant to New York State's Freedom of Information Law

The Court of Appeals [Court] said that in this appeal it "must determine whether the Department of Corrections and Community Supervision [DOCCS] properly withheld 11 documents* prepared by counsel [Counsel] for the Board of Parole [Board] as privileged communications exempt from Freedom of Information Law [FOIL] disclosure.

The Court indicated that Counsel had prepared the documents to train and advise members of the Board on how to comply with their legal duties and obligations and reflected Counsel's legal analysis of statutory, regulatory and decisional law. The Court concluded that the 11 documents at issue "constitute attorney-client communications that were prepared 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' specifically, to provide guidance on matters relevant to the Commissioners' exercise of their discretionary authority."

Accordingly, opined the Court, "DOCCS properly invoked the statutory FOIL exemption for privileged matters", citing Public Officers Law §87[2][a] and CPLR §4503[a].

Following an in-camera review Supreme Court had earlier affirmed DOCCS' denial of disclosure of the 11 documents that were withheld and dismissed the petition.* 

The Appellate Division affirmed the Supreme Court's ruling in a 3-2 decision, concluding that the documents were protected by the attorney-client privilege**

The Court affirmed the lower courts' rulings.

Citing Public Officers Law §87[2][a] and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Court said that under New York State's FOIL, "documents are to be disclosed unless they fall within an enumerated statutory exemption" and, in the words of the Court, "the attorney-client privilege exemption also reflects the state's policy to protect attorney-client communications to foster candid discussion between lawyer and client*** and FOIL is "liberally construed and its exemptions narrowly interpreted" to achieve its legislative purpose of maximizing public access to government records." In addition, the Court, citing Matter of Town of Waterford, 18 NY3d at 657, indicated that the Government "bears the burden of establishing an exemption."

In sum, the Court held "DOCCS properly withheld the 11 documents relevant in this action as privileged communications because they are exempted from FOIL disclosure pursuant to §87(2)(a)" and "the order of the Appellate Division should be affirmed, with costs."

* During the pendency of this action, the Court of Appeals noted that the parties entered a settlement pursuant to which DOCCS disclosed approximately 400 additional documents, leaving undisclosed the 11 documents at issue in this appeal.

** The Court's decision notes "In order for the privilege to apply, the communication from attorney to client must be made 'for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship'" and "[t]he communication itself must be primarily or predominantly of a legal character" (See Spectrum Sys. Intl. Corp. v Chem Bank, 78 NY2d 371, 377-378, quoting Rossi, 73 NY2d at 593-594).

*** Other examples of such statutory exemptions: Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

Click HERE to access the decision of the Court of Appeals posted on the Internet.

 

December 19, 2023

Workers’ Comp 101 with the New York State Advocate for Injured Workers: A Webinar to be held on December 20, 2023

The Workers’ Compensation Board (Board) continues its webinar series for workers tomorrow Wednesday, December 20, 2023, 11:00 A.M. - 12:00 P.M.

During this session, the Board’s Advocate for Injured Workers will cover the basics of the workers’ compensation system, including employees’ rights if they become injured or ill on the job. The one-hour presentation will also cover:

● Employees’ benefits under workers’ compensation

● How to file a claim

● How to get help with your claim if needed

● Tips and best practices for injured workers

● Information to be aware of regarding COVID-19 claims

 The session is free and there will be time at the end for questions.

Register here.

 

For additional information:

1. Visit the Advocate for Injured Workers section of the Board’s website for additional resources.

2. You may also call the Advocate for Injured Workers at (877) 632-4996 or email advocateforinjuredworkers@wcb.ny.gov.


 

 

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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