DOI ISSUES REPORT ON NYC BOARD OF ELECTIONS’ MISUSE OF ANNUAL AND SICK LEAVE PAYMENTS TO ITS FORMER GENERAL COUNSEL DURING FOUR-MONTH PERIOD BETWEEN 2020 AND 2021

 

The former General Counsel was under investigation during this time and later convicted of Official Misconduct 

Jocelyn E. Strauber, Commissioner of the New York City Department of Investigation (“DOI”), released a Report on the misuse of annual and sick leave by the Board of Elections (“BOE”) in the City of New York involving its former General Counsel Steven H. Richman. During the relevant four-month period noted in this Report, Richman was under criminal investigation, which resulted in Richman’s pleading guilty to two counts of Official Misconduct in June 2022. DOI found that during the four-month period between August 2020 and January 2021, BOE advanced Richman 23 days of annual leave that he had not earned, and permitted him to use approximately 60 days of undocumented sick leave, when there was no evidence that he was actually sick. 

DOI findings included that BOE acted inconsistently with its standard practices concerning advancement of annual leave and its policies concerning sick leave. DOI also found that BOE has no written policies with respect to the advancement of annual leave and that BOE failed to document or explain the basis for its approach to the handling of both sick and annual leave in this instance. While BOE Commissioners have discretion to depart from BOE policy, their actions in this instance appear improper and their failure to document the basis for their decisions falls far short of best practices. DOI has not made a determination whether Richman owes the City any money; however, it has determined that the 23 annual leave days and the approximately 60 days of sick leave improperly provided to Richman in both instances is valued at a total of $61,609.24. This Report and its findings have been referred to the NYC Office of the Comptroller for it to take any action it deems necessary.

DOI made recommendations to improve BOE’s annual leave and sick leave recordkeeping practices, as well as to improve the New York City Comptroller’s methods of reviewing time balances when employees separate from City service. The New York City Comptroller accepted DOI’s recommendations. The BOE indicated it would respond to DOI’s recommendation upon public issuance of this Report, a copy of which is attached to this release and can be found here: https://www.nyc.gov/site/doi/newsroom/publicreports.page

DOI Commissioner Jocelyn E. Strauber said, “Consistent application of annual and sick leave policies, and documentation concerning any exceptions to the same, are intended to ensure that all City employees, no matter their position, are treated with fairness and equity and that public funds are used appropriately. DOI’s investigation of how BOE chose to pay its former General Counsel, while that individual was under criminal investigation, found that BOE failed to document its actions and failed to comply with best practices and, in some respects, with its own policies. DOI has issued recommendations to BOE to improve its process. I thank the New York City Comptroller for its collaboration on this investigation and its swift acceptance of DOI’s recommendations to strengthen its auditing procedures when employees separate from the City. ”

DOI began investigating allegations of misconduct by Richman with respect to BOE legal interns in January 2020. As a result of that investigation, in June 2022, Richman was arrested and pleaded guilty to two counts of Official Misconduct, class A misdemeanors. As part of a plea agreement he received an unconditional discharge, and was required to report his conviction to the Appellate Division of the New York State Supreme Court within 30 days. In June 2023, Richman’s license to practice law was suspended. Richman’s appeal of this decision remains pending.

On August 25, 2020, during the criminal investigation of Richman’s conduct that resulted in the above conviction on Official Misconduct charges, Richman was placed on a “leave of absence” by the BOE, also referred to as a “suspension.” Richman remained on leave for approximately four months, until January 31, 2021, when he retired from City service. He was paid in full during that period.

DOI’s investigation included a review of Richman’s annual and sick leave usage during his fourmonth leave period. The investigation found that BOE granted Richman 23 days of annual leave that he had not earned and permitted him to use that annual leave without explanation or justification, or repayment obligation if Richman left BOE. BOE also permitted Richman to use approximately 60 days of undocumented sick leave, when there was no evidence that he was actually sick. Through the use of unearned annual leave, and sick leave, Richman received full pay during the entirety of his leave of absence. DOI also reviewed the “Time Balance for Management Employee Pay Plan” for Richman, a document created by the City Comptroller’s Office for all employees leaving City service in accordance with Personnel Order 88/5 and Mayor’s Executive Order 25 dated October 13, 1970. This information is required in order to process lump sum payments for the liquidation of leave balances upon separation from City service.

DOI’s investigation identified that the BOE granted leave time to Richman without explanation, and in a manner inconsistent with BOE’s own practices or policies: 

• The BOE added 23 days of annual leave to Richman’s balance after he was suspended due to an active investigation, inconsistent with BOE’s practices. 

• The BOE permitted Richman to utilize “sick leave” for approximately 60 days without any written documentation, in violation of its own internal policies.

DOI issued three recommendations to the BOE, which indicated it would respond when the Report was publicly issued. Specifically, DOI recommended: 

1: The BOE must enforce its written policy requiring that proper documentation be provided to the agency when an employee uses three consecutive sick leave days, is on sick leave more than five times in a six-month period, or is sick more than four times on the day immediately preceding a holiday or day off. 

2: The BOE should create a written policy stating that advanced leave may only be granted in writing, detailing: the date of such advance; the reason for the advance; the individual(s) authorizing the advance; and the process by which the advance will be repaid. 

3: The BOE should take appropriate payroll action to collect the money owed by Richman to the City once the Comptroller’s Office completes a new audit of Richman’s annual leave and sick time balances.

DOI issued two recommendations to the New York City Comptroller, which accepted each recommendation and noted that the Comptroller’s Office had no knowledge of Richman’s suspension from his position until receiving the DOI report; and that BOE did not disclose that information to the Comptroller’s Office, nor was it recorded in the City’s database where it would have been available to the Comptroller’s Office and factored into its review. Specifically, DOI recommended: 

1: The Comptroller’s Office should conduct a new audit of Richman’s annual leave and sick time balances based on the information contained in this Report.

2: As a general policy, the Comptroller’s Office should require documentation for any unusual addition of annual leave or sick days found while conducting their audit of an individual separating from City service.