Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

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Only the employees of the public employer, a union actingon their behalf or the public employer itself may intervene in an improperaction pending before PERBCity of New York v New York State Pub. Empl. Relations Bd.,2012 NY Slip Op 09130, Appellate Division, Third Department
The State’s Public Employment Relations Board found that theBoard of Education of the City School District of the City of New York [Board]committed an improper employer practice in response to a complaint filed by theunion representing certain employees employed by the Board. The union had alleged that theBoard unilaterally changed a condition of employment by eliminating theautomatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 
The City of New York filed a petition in Supreme Court seeking an annulment of PERB'sdecision. PERB counterclaimed seeking enforcement of its remedial order.Supreme Court dismissed the City’s petition and granted PERB's counterclaim.
Addressing a “procedural issue,” the Appellate Division,noting that PERB's order did not make any findings against the City nor did itorder the City to do anything, ruled that the City did not have standing tocommence a proceeding seeking to annul PERB's decision. Thus, said the court,Supreme Court properly dismissed that the petition brought by the City,explaining thatthe City and the Board are separate legal entities.
Further, said the court, the City was not a party to the PERBproceeding and although it was argued that “the City could have intervened,”the court noted that PERB’s regulations only permit intervention by publicemployees, a union acting on their behalf or the public employer, citing 4NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City ofNew York.
As to PERB’s ruling concerning the merits of the alleged improper practicecharge filed against the Board, the Appellate Division considered Board’s argument that it had nocontrol over changes with respect to parking that was imposed upon it by theCity and therefore had no power to negotiate anything regarding this parkingpermit situation.
Conceding that the power to regulate traffic and parking oncity streets is expressly delegated to the City, the Appellate Division saidthat the relevant questions for it to address were [1] did the Board had anycontrol over the change in producing and distributing parking permits and [2]did PERB intruded on an area under the authority of the City or its Departmentof Transportation [DOT].
The Appellate Division’s answer: it agreed with PERB thatthe Board did have control over some aspects of the new parking permitsituation as DOT produced and provided to Board 10,007 site-specific placardsand 1,000 three-hour permits for on-street parking and did not have anyoversight responsibilities as to the distribution of such placards and permits.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09130.htm

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department

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An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State EducationDepartmentDecisions of the Commissioner of Education, Decision #16,440
In this appeal the issue concerned an applicant's challenge to a decisionby the New York State Education Department Office of Teaching Initiatives that the applicant for a permanent teaching certificate was not eligible for such acertificate.
Dismissing the appeal on the grounds that the Commissionerof Education does not have jurisdiction to consider such an appeal, theCommissioner explained that “it is well settled that Education Law §310 doesnot authorize an appeal to the Commissioner from actions taken by members ofthe staff of the State Education Department.
However, said the Commissioner, such a challenge may be advancedin a proceeding brought in a court of competent jurisdiction pursuant toArticle 78 of the Civil Practice Law and Rules. 
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume52/d16440.html

Code of Silence Litigation - Police Officer's use of force

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Code of Silence Litigation - Police Officer's use of forceSource: AELE*

AELE reports that "In November, 2012, a federal jury in Chicago returned a verdict in favor of aplaintiff and against the city on a claim that the city had a persistentwidespread custom or practice of protecting officers from citizen complaints.The article reveals how the plaintiff and two expert witnesses proved herallegations. At the end, there is an extensive list of references."

The article is posted on the Internet at http://www.aele.org/law/2013-01MLJ101.html
* AELE has a freesearch tool covering our database of more than 33,000 case summaries at http://www.aele.org/htdig/common/search.html

Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012

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Decisionsof the US Department of Labor Administrative Review Board - October, Novemberand December 2012Source:USDOL/OALJ Reporter
The United States Department of Labor, Office ofAdministrative Law Judges website has been updated with the following:
Case summaries and case links for December 2012 ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/12_2012.HTM
Case summaries and case links for November 2012 ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/11_2012.HTM
Case summaries and case links for October 2012 ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/10_2012.HTM

Payday Loans That Don't Require Direct Deposit

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"Where can I borrow without a checking account and no credit?" Most of the time, we tend to think that if you do not have a bank checking account, it is impossible for you to get a guaranteed loan anywhere. Understandably, most of the fast payday loan lenders require customers to have a checking account with direct deposit as it makes it easy for them to debit their customer's accounts for monies owed to them. However, if you need to borrow money and have bad credit and no checking account, it is possible to find instant payday loans that don't require direct deposit. 

Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.

You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account.  However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.

No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

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Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17
Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
The Attorney General has advised Gina L. Bianchi, Esq., DeputyCommissioner and Counsel, New York State’s Division of Criminal Justice Services, thatmembers of the Security Guard Advisory Council are State officers or employeesfor the purposes of Public Officers Law §17.
Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 
Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees andlitigation expenses incurred by or on behalf of an employee in his or herdefense of a criminal proceeding in a state or federal court arising out of anyact which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal orupon the dismissal of the criminal charges against him.”
Withrespect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law,by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to theperformance of their official duties.
* §22 of the General ConstructionLaw, in pertinent part, provides that “Whenever words of the masculineor feminine gender appear in any law, rule or regulation, unless the sense ofthe sentence indicates otherwise, they shall be deemed to refer to both male orfemale persons.”
The Attorney General's Opinion 2012-F2 is posted on theInternet as a PDF file at:http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

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Failing to file a timely Article 78 petition barsconsideration of the merits of the complaint
Gress v Brown, 2012 NY Slip Op 08564, Court of Appeals
In 2003, the Legislature enacted the Buffalo FiscalStability Authority Act (the Act) in consideration of the fact "that thecity of Buffalo is facing a severe fiscal crisis, and that the crisis cannot beresolved absent assistance from the state."*
On April 21, 2004, the Buffalo Fiscal Stability Authority(BFSA) adopted its Resolution No. 04-35, which directed that "effectiveimmediately, there shall be a freeze with respect to all wages, wage rates, andsalary amounts for all employees of the City and all Non-exempt CoveredOrganizations, to the full extent authorized by the Act." 
This wage freeze,said the Court of Appeals, was intended "to prevent and prohibit anyincrease in wage rates, wages or salaries for any employee of the Cityor a Non-exempt Covered Organization," [emphasis supplied by the Court].
The Gress plaintiffs [Gress] were at-will, seasonalemployees and commenced this class action alleging that the City violated theCity of Buffalo's Living Wage Ordinance when it implemented BFSA’s Resolution04-35. The AppellateDivision agreed, holding that that the BFSA did not have the authority tofreeze the wages of the Gress plaintiffs [see 82 AD3d 1654].
Significantly, Gress did not quarrel with the wage freezegenerally but contested only its application to them through the BFSA'sadministrative action. Such a challenges, said the Court of Appeals, shouldhave been raised by commencing a timely CPLR Article 78 proceeding naming BFSA as a respondent. Gressfailed to file such a timely petition pursuant to Article 78 and was thus, saidthe court, barred from challenging the BFSA’s action or its authority to soact.
Rejecting the dissent’s argument that the BFSA, in fact,"had no authority to freeze the wages due the Gress plaintiffs pursuant tothe Living Wage Ordinance," the majority ruled that “whether or notauthorized to do so, the BFSA froze plaintiffs' wages and once this happened,the City and Mayor were bound by its action,” not having filed a timely challengeto such action.
* Public Authorities Law §3850-a

The decision is posted on the Internet athttp://www.courts.state.ny.us/reporter/3dseries/2012/2012_08564.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

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Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoliIssued during theweek of December 17 - 23, 2012[Click on the caption toaccess the full report]
DiNapoli Proposes Legislation To Help LocalGovernments With Storm Costs

State Comptroller Thomas P. DiNapoli has proposed a legislative package to helplocal governments deal with the financial impact of Hurricane Sandy. TheComptroller submitted four bills last week to the New York State Assembly andSenate.
DiNapoli: SED Providing Inadequate Oversightof Special Education Contractors

New York State Comptroller Thomas P. DiNapoli Tuesday called on the StateEducation Department (SED) to increase scrutiny of special educationcontractors after an audit revealed SED has notconducted any on–site audits since 2007 and has no process to routinely reviewthe hundreds of millions of dollars charged by these private providersannually.
DiNapoli Leads Coalition Demanding AetnaDisclose Political Spending

Citing reputational risks and a need for greater transparency in how shareholderdollars are being spent, New York State Comptroller Thomas P. DiNapoliannounced that he has filed a shareholder resolution with Aetna Incorporated toadopt a policy to publicly disclose all of its direct and indirect politicalexpenditures. The Comptroller’s resolution was co–filed by global asset managerF&C Management Ltd. In a related effort, a group of institutional investorsled by the Unitarian Universalist Association filed a separate resolutionurging the company to seek greater board involvement and oversight overpolitical spending.
DiNapoli: $89 Billion Shortfall for EssentialInfrastructure Projects Over the Next Two Decades
New York faces a shortfall of up to $89 billion in funding for water, sewer andtransportation infrastructure over the next two decades, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. The report is thelatest in a series of reports DiNapoli will issue to highlight the causes offiscal stress in New York’s local governments.
DiNapoli: School Districts Should Take FurtherSteps to Protect Private Data

The increased use of mobile computing devices by school districts has putconfidential student and school staff data at greater risk for theft andmisuse, according to an audit released last Friday by StateComptroller Thomas P. DiNapoli.
DiNapoli: Tax Collections $163 Million BelowProjections
Tax collections through November of $39.2 billion were $163.4 million below thestate’s estimates updated last month, and $702.4 million below initialestimates in April, State Comptroller Thomas P. DiNapoli said Wednesday inreleasing the November cash report.
Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted audits of:
the Mechanicville City School District;andthe Riverhead Charter School.
Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted the audits of:
the Village of Fort Edward; the Town of Livingston; the Town of Montgomery; the Niagara County Soil and Water ConservationDistrict; the Town of Oakfield; the Town of Olean; the Town of Stillwater; the Town of Unadilla; the Town of Waterloo; and the West Webster Volunteer Fireman’s Association,Inc.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

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Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoliIssued during theweek ending December 28, 2012 [Click on the caption to access the full report]
New York State Comptroller Thomas P. DiNapoliannounced that the following audits have been issued:

SUNY at New Paltz Selected Employee TravelExpenses (2012-S-140)

Auditors examined thetravel expenses for one college employee whose travel charges totaled $269,627. Theyfound that the selected employee was responsible for arranging travel for othercollege staff members, charging these travel expenses to her travel card.Auditors reviewed a sample of charges to this employee’s travel card and foundthe expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality ofInternal Control Certification (2012-S-48)

In 1987, theLegislature passed the New York State Governmental Accountability, Audit andInternal Control Act requiring state agencies and public authorities to eachinstitute a comprehensive system of internal controls over their operations.Each covered State agency and public authority is required to certifycompliance with act by April 30 of each year. DED's Internal ControlCertification was submitted timely. 

However, auditors identified several areaswhere the quality of the certification could be improved. In threeinstances, DED's certification did not provide the required level of detail toexplain the actual steps taken to implement certain provisions, includingdescribing its internal control testing and monitoring processes and theresults of its reviews of high risk activities. Although DED certifiedfull compliance with all provisions of the act, its internal audit function hasnot had an external quality control assessment completed as required byprofessional auditing standards. 


Office of General Services Disposal ofElectronic Devices (2012-S-4) 

The New York StateOffice of Cyber Security requires all state entities to establish formalprocesses to address the risk that information may be improperly disclosed.Information can be compromised through careless disposal of electronicequipment. OGS' surplus unit disposes of such equipment for many Stateagencies. 

The Surplus Unit does not accept any responsibility for clearing thedata from these devices. However, OGS' Information Resource Management (IRM)bureau provides IT support for some state agencies. In these cases, IRM isresponsible for removing information from the devices prior to making themavailable to the surplus unit. 

At the time of the audit, the surplus unit had429 electronic devices in its possession for disposal and IRM was responsiblefor removing information from 25 of the devices on hand. Of these, three didnot have information completely removed. One of the three devices still hadsensitive information on a hard drive, including multiple social securitynumbers, medical records and confidential human resource information. 


New York State Health Insurance Program-Department of Civil Service Empire BlueCross BlueShield Selected Payments forSpecial Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processesclaims for hospital services in accordance to agreements they negotiate withmember hospitals. Payments for hospital services are generally based onstandard fee schedules. However, hospitals may be entitled to additionalpayments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for specialitems, while agreements with other hospitals do not have such limitations.Auditors found Empire did not have adequate controls to ensure special itemswere paid according to contract limitations. 

As a result, Empire made a netoverpayment of $119,141 on 33 claims. Empire made an excessive payment to ahospital that did not have formal contract provisions limiting reimbursements forspecial items. On one claim we reviewed, Empire paid about $52,755 (or 444percent) more than the costs of the three special items in question.

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

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Retiree’s application to change the retirement optionselected filed more than thirty days after her effective date of retirementrejected as untimelyFeuer v State of New York, 2012 NY Slip Op 09129, AppellateDivision, Third Department
Prior to retiring in June 2009, a teacher, a Tier 4member of the New York State Teachers' Retirement System [TRS], met herfinancial advisor and a TRS representative for a preretirementconsultation. The teacher then submitted her application for retirement,selecting the option entitled "Largest Lump Sum," which provided the"largest possible lump sum payment to a beneficiary" followingthe member's death (emphasis in the decision), and designated her niece and nephew as herbeneficiaries.
The retirement application the teacher completed alsodetailed another option available to a retiree entitled the "Maximum"option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provideyou with the largest possible annual benefit. All payments will cease at yourdeath."
In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be receivedby the Retirement System "within 30 days after [the] effective date ofretirement" —  in this retiree's case, no later than July 30, 2009.
After submitting her application, the retiree received aletter from the Retirement System dated March 23, 2010, summarizing herretirement benefits and established her monthly pension payment. More then 30days after the effective date of her retirement, however, the now retiredteacher notified the Retirement System that she wanted to change her retirementoption selection from "the Largest Lump Sum" option to the "Maximum" option.
The Retirement System denied her request and the retiree fileda petition with the Court of Claims seeking permission to file a latenotice of claim.*
The Court of Claims denied her request because the retiree,by her own admission, did not notify the Retirement System that she wanted tochange her retirement option within 30 days of the effective date of herretirement. The Appellate Division affirmed the Court of Claims’ ruling,explaining that the Court of Claims is a court of limited jurisdiction that hasno capacity "to grant strictly equitable relief, [although it] may grantincidental equitable relief so long as the primary claim seeks to recover moneydamages in appropriation, contract or tort cases."
Although the relief that the retiree seeks is couched inmoney damages,** the Appellate Divisioncharacterized her application as requiring  the review of an administrative agency's determination. In thatregard, the Appellate Division noted that the money damages that the retireesought were calculated by using as a base figure what she would have received asher pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrativedetermination made by the Retirement System, the Court of Claims lacked subjectmatter jurisdiction and it properly denied the retiree's motion for leave tofile a late notice of claim.
* The retiree also sued TRS’representative in Supreme Court, contending that the representative wasnegligent regarding the her retirement options. Supreme Court dismissed thisaction as it sought money damages from a state employee in connection with theperformance of her duties and, as such, could only be commenced in the Court ofClaims.

** The Appellate Division said that the reliefthat the retiree sought would result in her receiving “windfall, because notonly would she receive the monthly pension benefit under the Maximum option,but she still would have a lump sum available to her beneficiaries upon herdemise.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm

The Ten Most Popular Administrative Law Blawgs For All Times [as of December 20, 2012]

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The Ten Most Popular Administrative Law Blawgs For All Times [as of December 20, 2012]

Below, listed in rank order by “Popularity forall time” are the top 10 Administrative Law Blogs so classified by Justia on December 20, 2012 with Internet links to their most recent postings..

1. New York Public Personnel Law
Dec 19Backward-looking right of accessclaimDec 18Workers’ Compensation Board’s findingthat the injured volunteer firefighter’s condition had not changed mandates thecontinuation of the benefits being provided pursuant to the VolunteerFirefighters’ Benefit LawDec 17Failing to file a timely Article 78petition bars consideration of the merits of the complaint

2. Administrative Law Prof Blog
Oct 29Good class discussionOct 22Types of regulatory strategies, anddoes the third type work?Oct 21Historical and ethical perspectiveson regulation

3. bevlog
Dec 11Is Wine Vegan?Nov 19Nobama BeerNov 6Chokin’ Chicken Vodka

4. Sheri R. Abrams Disability Blog
Dec 14Are curb ramps required to havedetectable warnings?Dec 7Social Security Announces NewCompassionate Allowances ConditionDec 6When can an employer ask an applicantto “self-identify” as having a disability?

5. Life Sciences Legal Update
Dec 13China Life Sciences and HealthIndustry Client Briefing - November 2012 (December 13, 2012)Nov 30OCR Releases Overdue Guidance onDe-identifying Protected Health InformationNov 27Massachusetts Releases FinalRegulations, Restores Annual "Sunshine" Reporting Requirement forDrug/Device Manufacturer

6. Aviation and Airport Development…
Nov 26FAA Finally Issues Guidance on PlumeHazards to Aircraft from Power Plants - Or Does It?Nov 19Public Strongly Favors "Cap andTrade" Carbon Emissions ProgramNov 13"Cap and Trade" inGreenhouse Gas Emissions Launched in California

7. OFAC SDN Sanctions Removal Lawyers
Nov 14Specially Designated NarcoticsTrafficking Kingpin [SDNTK] Entries Added to OFAC’s SDN List on November 14,2012Nov 14Democratic Republic of the Congo[DRCONGO] Entries Added to OFAC’s SDN List on November 13, 2012Nov 6“US Slaps Sanctions on HaqqaniNetwork Suicide Operations Chief”

8. California Attorneys Representing…
Oct 1Tracy Green Quoted On PhysicianAccused Of Second Degree Murder And Excessive Prescribing Due To AccidentalOverdoses by PatientSep 14Los Angeles Times Reports On LawyersWho Defend Doctors - Attorney Tracy Green QuotedAug 8Can Hospital Chains Improve theMedical Industry? Interesting Article In The New Yorker

9. Employee Benefits Legal BlogDec 17PPACA and Penalties: State v. FederalExchangeDec 10Are You Part of a Control Group? ItCounts When CountingDec 5Is My Health Plan Discriminatory?Insured Plans and PPACA

10. JOTWELL - The Journal of Things We…
Dec 19Is Arbitration Lawless?Dec 17An Evolving Administrative Law ofTargeted Warfare (and the Power of Londoner/BiMetallic)Dec 12An Unexpected Remedy: Eminent Domainas a Potential Solution to the Mortgage Crisi

California to implement amended pregnancy regulations

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California to implement amended pregnancy  regulations Source: Wolers Kluwer’s Employment Law Daily [ http://www.employmentlawdaily.com/ ] “Several noteworthy changes are in store for California employers when revised pregnancy regulations issued by the California Fair Employment and Housing Commission take effect on December 30. The state’s Office of Administrative Law approved the changes on November 30 following an interactive process that included public feedback. “Definitions are changed significantly, starting with a more detailed definition of “disabled by pregnancy.” Lactation is specifically included as a “condition related to pregnancy, childbirth, or a related medical condition.” A “perceived pregnancy” is protected and is defined. “Four months”—the duration of available leave—is also revised in order to clarify how to calculate leave. The definition of health care provider is expanded as well. “The new regulations clearly articulate the employer’s duty to reasonably accommodate an employee’s pregnancy. Additionally, they change employers’ obligations regarding reinstatement of an employee after pregnancy leave. Specifically, for an employer tojustify not reinstating an employee to a comparable position after  pregnancy leave, it must prove either: A. that the employer would not have offered a comparable position to the employee if she would have been continuously at work during the pregnancy disability leave or transfer period, OR B. that there is no comparable position available. “Further, the regulations clarify employers’ health carecoverage obligations under pregnancy leave (applicable to employers with five or more full or part-time employees) and under the California Family Rights Act (applicable to employers with 50 or more employees). The time that an employer maintains and pays for group health coverage during pregnancy disability leave must not be used to meet an employer’s obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This is true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements.”  The full text of the approved regulations can be found at http://www.fehc.ca.gov/act/pdf/pregnancyregulations/Approved_Preg_Regs_11_30_12.pdf.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

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Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoliIssued during theweek of December 17 - 23, 2012[Click on the caption toaccess the full report]
DiNapoli Proposes Legislation To Help LocalGovernments With Storm Costs

State Comptroller Thomas P. DiNapoli has proposed a legislative package to helplocal governments deal with the financial impact of Hurricane Sandy. TheComptroller submitted four bills last week to the New York State Assembly andSenate.
DiNapoli: SED Providing Inadequate Oversightof Special Education Contractors

New York State Comptroller Thomas P. DiNapoli Tuesday called on the StateEducation Department (SED) to increase scrutiny of special educationcontractors after an audit revealed SED has notconducted any on–site audits since 2007 and has no process to routinely reviewthe hundreds of millions of dollars charged by these private providersannually.
DiNapoli Leads Coalition Demanding AetnaDisclose Political Spending

Citing reputational risks and a need for greater transparency in how shareholderdollars are being spent, New York State Comptroller Thomas P. DiNapoliannounced that he has filed a shareholder resolution with Aetna Incorporated toadopt a policy to publicly disclose all of its direct and indirect politicalexpenditures. The Comptroller’s resolution was co–filed by global asset managerF&C Management Ltd. In a related effort, a group of institutional investorsled by the Unitarian Universalist Association filed a separate resolutionurging the company to seek greater board involvement and oversight overpolitical spending.
DiNapoli: $89 Billion Shortfall for EssentialInfrastructure Projects Over the Next Two Decades
New York faces a shortfall of up to $89 billion in funding for water, sewer andtransportation infrastructure over the next two decades, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. The report is thelatest in a series of reports DiNapoli will issue to highlight the causes offiscal stress in New York’s local governments.
DiNapoli: School Districts Should Take FurtherSteps to Protect Private Data

The increased use of mobile computing devices by school districts has putconfidential student and school staff data at greater risk for theft andmisuse, according to an audit released last Friday by StateComptroller Thomas P. DiNapoli.
DiNapoli: Tax Collections $163 Million BelowProjections
Tax collections through November of $39.2 billion were $163.4 million below thestate’s estimates updated last month, and $702.4 million below initialestimates in April, State Comptroller Thomas P. DiNapoli said Wednesday inreleasing the November cash report.
Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted audits of:
the Mechanicville City School District;andthe Riverhead Charter School.
Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his officecompleted the audits of:
the Village of Fort Edward; the Town of Livingston; the Town of Montgomery; the Niagara County Soil and Water ConservationDistrict; the Town of Oakfield; the Town of Olean; the Town of Stillwater; the Town of Unadilla; the Town of Waterloo; and the West Webster Volunteer Fireman’s Association,Inc.

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy

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Arbitrator’s ruling employee worked “out-of-title” does notviolate public policy
County of Westchester v Edward Doyle, Jr., 43 AD3d 1055
Westchester County filed a CPLR Article 75 petition in aneffort to vacate an arbitration award holding that one of employees had beenworking “out-of-title” on the grounds that the award constituted a “violationof public policy.” The Appellate Division disagreed, ruling that “public policy was not violated here merelybecause the determination that the respondent William Leverance was workingout-of-title was made by an arbitrator.”
Another issue involved in this action: what is the date fromwhich interest on the addition compensation due the employee is payable?
The Appellate Division said, and the employee conceded,interest was to be paid from the date of the arbitration award, rather than fromthe date from which the employee was entitled to compensation for hisperforming out-of-title work.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06874.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

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Selected reports andinformation published by New York State's Comptroller Thomas P. DiNapoliIssued during theweek ending December 28, 2012 [Click on the caption to access the full report]
New York State Comptroller Thomas P. DiNapoliannounced that the following audits have been issued:

SUNY at New Paltz Selected Employee TravelExpenses (2012-S-140)

Auditors examined thetravel expenses for one college employee whose travel charges totaled $269,627. Theyfound that the selected employee was responsible for arranging travel for othercollege staff members, charging these travel expenses to her travel card.Auditors reviewed a sample of charges to this employee’s travel card and foundthe expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality ofInternal Control Certification (2012-S-48)

In 1987, theLegislature passed the New York State Governmental Accountability, Audit andInternal Control Act requiring state agencies and public authorities to eachinstitute a comprehensive system of internal controls over their operations.Each covered State agency and public authority is required to certifycompliance with act by April 30 of each year. DED's Internal ControlCertification was submitted timely. 

However, auditors identified several areaswhere the quality of the certification could be improved. In threeinstances, DED's certification did not provide the required level of detail toexplain the actual steps taken to implement certain provisions, includingdescribing its internal control testing and monitoring processes and theresults of its reviews of high risk activities. Although DED certifiedfull compliance with all provisions of the act, its internal audit function hasnot had an external quality control assessment completed as required byprofessional auditing standards. 


Office of General Services Disposal ofElectronic Devices (2012-S-4) 

The New York StateOffice of Cyber Security requires all state entities to establish formalprocesses to address the risk that information may be improperly disclosed.Information can be compromised through careless disposal of electronicequipment. OGS' surplus unit disposes of such equipment for many Stateagencies. 

The Surplus Unit does not accept any responsibility for clearing thedata from these devices. However, OGS' Information Resource Management (IRM)bureau provides IT support for some state agencies. In these cases, IRM isresponsible for removing information from the devices prior to making themavailable to the surplus unit. 

At the time of the audit, the surplus unit had429 electronic devices in its possession for disposal and IRM was responsiblefor removing information from 25 of the devices on hand. Of these, three didnot have information completely removed. One of the three devices still hadsensitive information on a hard drive, including multiple social securitynumbers, medical records and confidential human resource information. 


New York State Health Insurance Program-Department of Civil Service Empire BlueCross BlueShield Selected Payments forSpecial Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processesclaims for hospital services in accordance to agreements they negotiate withmember hospitals. Payments for hospital services are generally based onstandard fee schedules. However, hospitals may be entitled to additionalpayments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for specialitems, while agreements with other hospitals do not have such limitations.Auditors found Empire did not have adequate controls to ensure special itemswere paid according to contract limitations. 

As a result, Empire made a netoverpayment of $119,141 on 33 claims. Empire made an excessive payment to ahospital that did not have formal contract provisions limiting reimbursements forspecial items. On one claim we reviewed, Empire paid about $52,755 (or 444percent) more than the costs of the three special items in question.