AUDIT REPORT The Housing Authority of the City of Newark Controls Over Bond Financing Activities, Obtaining Supporting Documentation, and Legal Settlements Require Improvement Newark, New Jersey 2006-NY-1003 February 14, 2006 OFFICE OF AUDIT New York/New Jersey Region Issue Date February 14, 2006 Audit Report Number 2006-NY-1003 TO: Edward T. De Paula, Director, Office of Public Housing, 2FPH FROM: Edgar Moore, Regional Inspector General for Audit, 2AGA SUBJECT: The Housing Authority of the City of Newark, Newark, New Jersey, Controls Over Bond Financing Activities, Obtaining Supporting Documentation, and Legal Settlements Require Improvement HIGHLIGHTS What We Audited and Why Pursuant to a request from the former U.S. Department of Housing and Urban Development (HUD) New York/New Jersey regional director, we performed a second audit of the Housing Authority of the City of Newark (Authority) to cover areas of concern, identified in our first audit as being high risk. The objectives of this audit were to determine whether the Authority’s (1) Housing Finance Corporation conducted its operations in accordance with HUD regulations, (2) payments made to the City of Newark in addition to the payments in lieu of taxes for municipal services were allowable, (3) costs for legal settlements were properly authorized, and (4) self-insurance program is cost effective. What We Found In our opinion, the Authority did not conduct its bond financing activities in accordance with HUD requirements. It did not ensure that its Housing Finance Corporation (1) placed all excess funds for specific projects into the debt service reserves, (2) remitted amounts to HUD when required, (3) properly certified and reported its McKinney Act activities to HUD, and (4) disbursed all McKinney Act funds in a timely manner and/or made disbursements only for eligible items. As a result, more than $1.8 million was either not placed into project’s(s’) debt service reserves or remitted to HUD as required. In addition, more than $1.9 million in McKinney Act funds were not spent in a timely manner for proper purposes. Contrary to the requirements of its annual contribution contract, cooperation agreement, and federal regulations, the Authority did not maintain adequate documentation to support various payments made to the City of Newark. It could not substantiate that the services the Authority paid for were in addition to those services that the City was obligated to provide under the cooperation agreements the Authority has with the City, or that the payments made were reasonable. As a result, Authority officials cannot substantiate that the $6.9 million paid to the City of Newark was necessary. Contrary to HUD requirements, the Authority settled general liability claims without obtaining prior written HUD approval. As a result, HUD could not be assured that more than $1.2 million in legal settlements paid under the self- insurance program were processed in a cost-effective manner. What We Recommend We recommend that HUD obtain a legal opinion as to whether the citations of 24 CFR [Code of Federal Regulations] 811.105 and 811.108 are applicable to the projects in question and as to the disposition of $3.7 million in funds being retained by the Authority and its Housing Finance Corporation. If it is determined that the cited regulations are applicable then the Authority should deposit $1.5 million into the debt service reserves of the applicable projects and HUD should determine whether $320,859 should be recaptured and the proper disposition of the $1.9 million in McKinney Act savings/funds being held by the Authority and its Housing Finance Corporation. The Authority should establish controls to ensure that McKinney Act Savings/funds are disbursed and reported in accordance with applicable requirements, and the Authority should also provide documentation or reimbursement for the $67,524 in questioned disbursements made by the Housing Finance Corporation. We further recommend that HUD review the documentation provided to determine if the evidence supports that city services were provided that exceeded the services that were to be provided in accordance with the cooperation agreement and seek reimbursement for any amounts not supported. In addition, we recommend that procedures be established to ensure that a) service agreements with the city are properly executed and monitored, services are provided, and costs are reasonable, b) prior HUD approval is obtained for general liability settlements, and c) contract services are provided as required. For each recommendation without a management decision, please respond and provide status reports in accordance with HUD Handbook 2000.06, REV-3. Please furnish us copies of any correspondence or directives issued because of the audit. 2 Auditee’s Response Officials of the Authority generally disagreed with our findings. They stated that the regulations cited (24 CFR [Code of Federal Regulations] 811.105 and 811.108) are not applicable to the projects in question and that there is no provision in the old regulations that require unspent McKinney Act savings/funds to be returned to HUD. As a result, we added a recommendation for HUD to obtain a legal determination to identify the regulations that are applicable, and to determine the proper disposition of the funds being retained by the Housing Finance Corporation. Authority officials believe that they provided enough evidence to substantiate the issues in finding two, and they agreed with finding three and have begun making corrective actions by developing procedures to request HUD approval before settling general liability claims. We discussed the results of our review with Authority officials during the audit and at an audit exit conference held on January 5, 2006. Authority officials provided their written comments on January 10, 2006. The complete text of the Authority’s response, along with our evaluation of that response, can be found in appendix B of this report. The Authority’s response included a number of exhibits and documents that were too voluminous to be included in our final report, but were provided to your office. 3 TABLE OF CONTENTS Background and Objectives 5 Results of Audit Finding 1: In Our Opinion, the Authority Did Not Conduct Its Bond Financing 6 Activities in Accordance with HUD Regulations and Requirements Finding 2: The Authority Did Not Maintain Adequate Documentation to Support 12 Payments to the City of Newark Finding 3: The Authority Settled General Liability Claims without Obtaining 16 HUD’s Written Approval Scope and Methodology 19 Internal Controls 20 Followup on Prior Audits 22 Appendixes A. Schedule of Questioned Costs and Funds to Be Put to Better Use 23 B. Auditee Comments and OIG’s Evaluation 24 4 BACKGROUND AND OBJECTIVES The Housing Authority of the City of Newark (Authority) was established in 1938 after the passage of the Federal Housing Act of 1937 to build and manage public housing developments for residents of the City of Newark, New Jersey. The Authority owns approximately 7,800 low- income housing units, assists an additional 6,383 families through the Section 8 program, and operates various urban renewal programs. In addition, the Authority’s board of commissioners established the Housing Finance Corporation to sponsor the issuance of tax-exempt bonds to finance the construction of Section 8 housing. The Authority reported total operating revenue of more than $150 million for the period ending March 31, 2005. The Authority’s board of commissioners is comprised of seven members, who serve five-year terms; one member is appointed by the mayor, five members are appointed by the mayor with city council approval, and one member is appointed by the New Jersey Department of Community Affairs as delegated by the governor. The executive director of the Authority is Mr. Harold Lucas. The former U.S. Department of Housing and Urban Development (HUD) regional director had requested a full operational audit of the Authority as a result of media allegations of questionable business practices. We performed an audit and issued an audit report on May 26, 2005. This is our second audit of the Authority, which is being performed to address the issues that were identified in the initial audit as high risk but not reported on. Our objectives for this audit were to determine whether the Authority’s (1) Housing Finance Corporation conducted its operations in accordance with HUD regulations, (2) payments made to the City of Newark in addition to the payments in lieu of taxes for municipal services were allowable, (3) costs for legal settlements were properly authorized, and (4) self-insurance program is cost effective. 5 RESULTS OF AUDIT Finding 1: In Our Opinion, the Authority Did Not Conduct Its Bond Financing Activities in Accordance with HUD Regulations and Requirements The Authority did not ensure that its Housing Finance Corporation (1) placed all excess funds for specific projects into the debt service reserves, (2) remitted amounts to HUD when required, (3) properly certified and reported its McKinney Act activities to HUD, and (4) disbursed all McKinney Act funds in a timely manner and/or made disbursements only for eligible items. As a result, more than $1.8 million was either not placed into the project’s (s’) debt service reserves or remitted to HUD as required. In addition, more than $1.9 million in McKinney Act funds were not spent in a timely manner or properly used to provide decent, safe, and sanitary housing to very low-income persons. These problems occurred because the Authority did not have controls in place to ensure that all bond-financing activities were conducted in accordance with applicable regulations. Further, Authority officials believe that the regulations were not applicable to the projects in question since the effective date of the regulations was after the bond issue dates, and that the regulations allowed them ten years to disburse McKinney Act Savings. Consequently, to ensure that the Authority complies with the regulations, we recommend that HUD obtain a legal determination as to the proper disposition of funds being retained by the Housing Finance Corporation. Criteria Federal regulations at 24 CFR [Code of Federal Regulations] 811.105(a)(2)(iii)(b) provides that the applicant shall receive no compensation in connection with the financing of a project except for its expenses. Should the applicant receive any compensation in excess of such expenses, the excess is to be placed in the debt service reserve. In addition, 24 CFR [Code of Federal Regulations] 811.108, which relates to debt service reserves, provides that the debt service reserve and its investment income shall be available only for the purpose of paying principal or interest on the obligations. Upon full payment of the principal and interest on the obligations (including that portion of the obligations attributable to the funding of the debt service reserve), any funds remaining in the debt service reserve shall be remitted to HUD. Funds Were Not Placed into the Debt Service Reserve During the period April 1, 1978, to March 31, 2005, the Authority’s Housing Finance Corporation earned management service and interest income from various activities. The source of most of the management service income was not identified. The Authority’s staff believed that the income was the result of financing services the 6 Housing Finance Corporation provided to Section 8 projects. They stated that the financing services may have included bond floating, short-term financing, or conduit bond financing. The Housing Finance Corporation generated interest income by investing the management service income in various short-term financing instruments; nevertheless, net income from management services plus applicable interest income amounted to $1,865,103 as of March 31, 2005. Although the Code of Federal Regulations provides that the Housing Finance Corporation may not receive any compensation in connection with the financing of a project except for its expenses and that the excess compensation should have been placed in the debt service reserves of the individual projects, these funds were not placed into specific projects’ debt service reserves. As a result, debt service reserves for specific projects were under funded, and these projects were deprived of the use of funds that could have been used for the payment of principal and interest on the projects’ obligations. Funds Were Not Remitted to HUD as Required Part of the above management service income and interest, which was not placed into debt service reserves, is applicable to financing activities for four of the Authority’s projects that had their 1980 bonds redeemed in 2002. One of the projects whose bonds were redeemed, Livingston Homes, has $59,450 of the $1,865,103. If these funds had been properly deposited in the debt service reserve for Livingston Homes, they would have been remitted to HUD as required by federal regulations when the bond issue that financed the project was redeemed or paid off in 2002; consequently, HUD was deprived of the use of $59,450. In addition, $261,409 of the $1,865,103 pertains to three projects (Fairview, Saint Mary’s Villa, and Broadway Manor) that had their bond issues refinanced under the McKinney Act. After the refinancing, HUD generated refunding agreements for these projects, which may be inaccurate since the $261,409 was not available or deposited into the individual projects’ debt service reserves. Therefore, HUD may have inaccurately determined the amount needed to pay off the outstanding bonds and fund the debt service reserves before approving the refunding agreements. Accordingly, HUD needs to review the debt service reserves and refunding agreements for these three projects and determine whether any funds should be recaptured. To properly account for the above management service interest and income, HUD needs to review and make a determination on how to handle the $261,409, while the Authority needs to remit the $59, 450 to HUD and ensure that the remaining $1,544,244 is deposited into the project’s (s’) debt service reserve, which would represent funds being put to better use . 7 McKinney Activities Were Not Certified in a Timely Manner and Reported to HUD The Stewart B. McKinney Act was designed to provide funding for housing related to the homeless and very low-income persons. McKinney Act savings are defined as savings resulting from the reduction in Section 8 contract rents related to project bonds that have been refinanced. Regarding the Authority and its Housing Finance Corporation, HUD approved refinancing of four bond issues under the provisions of the McKinney Act between 1993 and 1995. HUD determined the amount of savings on the Section 8 contract rents that resulted from the refinancing and approved refunding agreements, which provided for semiannual payments to the Housing Finance Corporation for 50 percent of the Section 8 savings resulting from the refinancing. The refunding agreements provide that the Housing Finance Corporation must submit a written requisition to the trustee and HUD stating that the refunding payments (together with any interest earned) have been expended or are expected to be expended within the next six months. Further, the Housing Finance Corporation must provide annual certifications to HUD that the refunding payments are being used in accordance with their approved housing plan, together with a report setting forth the uses of the refunding payments and the nature of the assistance provided, within 90 days of the end of its fiscal year. From April 1, 1994, to March 31, 2005, the Housing Finance Corporation received financial adjustment factor refunding payments (also known as McKinney Act savings) of $2,289,284 and earned interest income of $469,444 by investing the funds. Thus, the total amount of the refunding payments and applicable interest was $2,758,728 through March 31, 2005. Yet despite having received this funding since 1994, the Authority did not submit its initial report to HUD until May 31, 2005. This report provided that the McKinney Act savings/fund balance was $2,950,991 as of March 31, 2005. However, this balance was overstated and was later corrected by the Authority during our review on October 12, 2005. The Authority did not certify that the funds had been used in accordance with the refunding agreements and inform HUD on what these funds would be used for (in this case the funds were supposed to be used for security costs) until May 2005. Thus, the Authority did not report or certify to HUD in a timely manner. McKinney Act Funds Were Not Disbursed in a Timely Manner By not providing the above reports in a timely manner, HUD was not made aware that the Housing Finance Corporation was not disbursing these funds in a timely manner. Further, from the $2,758,728 balance of McKinney Act savings/funds or refunding payments received, the Housing Finance Corporation had disbursed a total 8 of $802,299 through March 31, 2005, leaving $1,956,429 of McKinney Act savings/funds that had not been disbursed as of March 31, 2005. Since the Housing Finance Corporation did not expend these funds for eligible purposes within six months of receiving them as required, it was not in compliance with the requirements of the refunding agreements. Consequently, HUD needs to determine the proper disposition of the remaining McKinney Act funds. Questionable Disbursements The Authority’s Housing Finance Corporation inappropriately disbursed $67,524 on costs not related to the corporation’s mission and not in accordance with federal regulations. These funds were used to reimburse the Authority’s operating account for legal costs stemming from litigation and for consulting services in connection with real estate acquisitions. Contrary to the requirements, these costs were not related to financing or refinancing the debt obligations of Section 8 projects or to providing housing for low-income families. The refunding agreement provides that McKinney Act funds should only be used in the city of Newark, New Jersey, to provide decent, safe, and sanitary housing affordable to very low-income families or persons. Such funds may be applied (i) directly to assist very low-income families or persons or (ii) to pay the development costs of dwelling units to be occupied by persons and families of very low income but only to the extent that these costs would be chargeable to the project’s capital account for income tax purposes. The refunding agreements also state that McKinney Act funds shall not be used to pay administrative costs of the corporation. Further, 24 CFR [Code of Federal Regulations] 811.108 provides that non- McKinney-Act funds (which were received before April 1, 1993) should all have been deposited in debt service reserves and only used for the payment of principal or interest on the obligations. Costs that are not related to the financing of the bond issues would not be eligible costs . The $67,524 in questioned disbursements is considered unsupported as follows: Date of Legal fees disbursement Amount Lawsuit Authority vs. Mar. 27, 1992 $13,312.78 1/ City Construction “ Aug. 27, 1992 $12,722.59 1/ Consultant fees Feasibility study Section Nov. 14, 2000 $9,786.75 1/ 8 project acquisition “ Aug. 13, 2000 $20,833.33 1/ “ Feb. 21, 2003 $10,868.45 1/ Total $67,523.90 9 1/ These items are considered unsupported because there was insufficient documentation to determine whether the costs were eligible and reasonable or could be considered allowable development costs that would be charged to the project’s capital account for income tax purposes. Conclusion Authority officials submitted comments (see Appendix B) that state that the criteria cited in this finding is not applicable to the projects in question because the bonds for these projects were issued before the effective date of the regulations, and therefore, the Housing Finance Corporation was entitled to the payments per the indenture of trust. In a prior OIG audit (92-NY-204-1009), HUD’s legal counsel ruled that the cited regulations are applicable and the Authority and its Housing Finance Corporation agreed to abide by all regulations; however, to date the legal opinion could not be located. As a result, to clarify this issue HUD needs to obtain a new legal opinion on whether the regulations are applicable and to determine the proper disposition of these funds. Nevertheless, based on the above deficiencies, and the prior legal opinion, it is clear that the Authority needs to strengthen its controls over bond financing activities to ensure that its Housing Finance Corporation is following all applicable regulations. As such, not until all bond-financing funds are placed into the debt service reserves in a timely manner as required, disbursed for eligible items in accordance with the housing plan, and certified and reported to HUD in a timely manner will the Authority’s bond program be efficiently managed. Recommendations We recommend that the director of HUD’s Office of Public Housing 1A. Obtain a legal opinion to determine whether the citations of 24 CFR [Code of Federal Regulations] 811.105 and 811.108 are applicable to the projects in question and to determine the proper disposition of the funds being retained by the Housing Finance Corporation. If it is determined that the cited regulations are applicable, we recommend that the director of HUD’s Office of Public Housing instruct the Authority to 1B. Deposit $1,544,244 into the debt service reserves of the individual projects from where the funds originated . 1C. Remit $59,450 to HUD for the funds that were applicable to the bond issue for Livingston Homes, which was redeemed in 2002. 10 1D. Submit information to HUD regarding the underfunding of debt service reserves for the three projects (Fairview, Saint Mary’s Villa, and Broadway Manor) amounting to $261,409 so that HUD can determine whether these funds should be recaptured and the refunding agreements should be adjusted for these three projects. 1E. Provide direction to its Housing Finance Corporation (based on the legal determiniation) as to the proper disposition of the $1,956,429 in McKinney Act savings/funds that was not disbursed in a timely manner, per the refunding agreements. We also recommend that the director of HUD’s Office of Public Housing require the Newark Housing Authority to: 1F. Establish controls to ensure that McKinney Act savings/funds are disbursed and reported in accordance with the applicable requirements. 1G. Provide documentation to the Office of Public Housing regarding the questioned disbursements amounting to $67,524 so that an eligibility determination can be made. The cost of all ineligible disbursement should then be repaid to the applicable project’s(s’) debt service reserve . 1H. Establish procedures to ensure that its Housing Finance Corporation conducts it operations in accordance with all federal regulations . 11 Finding 2: The Authority Did Not Maintain Adequate Documentation to Support Payments to the City Of Newark Contrary to the requirements of its annual contribution contract, cooperation agreement, and federal regulations, the Authority did not maintain adequate documentation to support various payments made to the City of Newark. It could not substantiate that the services the Authority paid for were in addition to those services that the city was obligated to provide under the cooperation agreements the Authority has with the city, or that the payments made were reasonable. This occurred because the Authority did not have a signed agreement in place that set forth, in sufficient detail, the quantity and cost of the additional services to be performed, nor did it have controls in place to ensure that proper supporting documentation was obtained before making the payments. As a result, Authority officials cannot substantiate that $6.9 million paid to the City of Newark was necessary. Criteria The annual contribution contract requires the Authority to operate in an economical and efficient manner. It requires the Authority to perform and comply with all the applicable provisions of the cooperation agreement including the making of payments in lieu of taxes and to at all times enforce its rights under the cooperation agreement and not terminate or amend the agreement without the prior written approval of HUD. The annual contributions contract also requires the Authority to maintain records in a manner that permits HUD to determine whether all funds have been expended in accordance with each specific program regulation and requirement. The cooperation agreement between the Authority and the City of Newark states that the Authority will pay 10 percent of the annual shelter rent to the city as a payment in lieu of taxes and that the city will provide, without additional charge to the Authority and its tenants, public services and facilities as furnished from time to time without charge to other dwellings and inhabitants in the municipality. Payments Made in Addition to Payment in Lieu of Taxes The Authority said they entered into two memorandums of understanding with the City of Newark whereby the city agreed to provide special services to the Authority and its residents. These memorandums of understanding, which were not signed, provided that the City would provide special services to the Authority in excess of the City’s responsibility under various cooperation agreements. Such services were to include: • Services and facilities related to supervision of special police officers employed by the Authority. 12 • Services for manning two stabilization vans owned by the Authority and used to provide around the clock patrolling at the housing sites of the Authority. • Special police services during the implosion/demolition of major housing complexes owned by the Authority. • Additional police services at various low rise and high rise developments and buildings. • Additional police services at large common areas of the Authority etc. The agreements did not specify the quantity and cost of the additional services to be provided at each project nor what constituted normal services. We requested additional information and supporting documents to determine the eligibility and reasonableness of the costs. Although the Authority officials provided additional information, we could not determine from the documents that the services provided were in addition to the level of services the the City was already obligated to provide under the cooperation agreements. Moreover, since the Authority was unable to provide signed copies of the agreements, HUD lacks assurance that formal agreements were made. The Authority said they entered into these memorandums of understanding because Authority and city officials believed that a combination of high density and poverty in the Authority’s developments exerted greater than normal demands on city departments, especially for the police and the health and human services departments. This was intended to be in addition to what services are normally required by other apartment dwellings and residents throughout the city. The agreements called for the Authority to make a one-time “up front” payment to the city, reflecting the expected reasonable cost of said services. The agreements further provided that the Authority could conduct an audit of the costs of the services and facilities provided by the city within six months of the commencement of the agreement. If the services were determined to not benefit the Authority and its residences, the city was to return a prorated amount to the Authority. On August 14, 2001, the Authority paid the City of Newark $1.4 million for additional services. Further, without conducting an audit to determine if the initial payment was reasonable, on April 9, 2002 the Authority made another payment of $5.5 million to the City, bringing the total of the payments to $6.9 million. These payments were in addition to the $884,074 payments in lieu of taxes that the Authority paid the City between April 2001 and March 2004 for baseline services. Moreover, Authority officials paid the $6.9 million without documentation to substantiate that the costs were for services specified in the memorandums of understanding. 13 Health and Human and Emergency Service Costs. Authority officials provided documents indicating that the city incurred $778,508 in costs by the Department of Heath and Human Services and Emergency Medical Services for health care services; meals provided seniors and children, and ambulance services. A supporting schedule reflected that these costs were derived by taking the percentage of Authority residents in relation to the percentage of the total population of the city of Newark and applying it to the city’s total cost for health and human services and emergency medical services for the year. However, without providing statistics on the number of Authority residents who received these services, the appropriateness of this amount cannot be determined, especially since under the cooperation agreement, the city, in exchange for payments in lieu of taxes, was required to provide the Authority and its residents at no additional charge the same services and facilities that it provided to other dwellings and inhabitants. Police Services The Authority also provided documents reflecting $6,393,346 in costs for additional police services purportedly provided to the Authority. This included a schedule showing summary salary and benefit costs for 85 police officers who purportedly provided police coverage at four low-income housing projects from September 1, 1998, through September 1, 1999. However, another schedule from the city provided as support for the total payments indicated that the services were for the years 2000 and 2001. Moreover, the term of the unsigned memorandum of understanding agreements provided to us was from April 1, 2001 to March 31, 2003. After we requested explanations for the above discrepancies, on July 18, 2005 the Authority’s board of commissioners approved amended resolutions that after the fact asserted that the services were provided from 1998 to 2003. Monitoring and Audits Although the memorandums of understanding allowed the Authority to audit and monitor charges for services provided, monitoring reports provided by the Authority did not indicate that additional services were provided. Further, there was no indication that a cost benefit analysis was performed six months after commencement of the service agreements, as set forth in the memorandums of understanding and the Authority’s resolution No. 01-08-22. Authority officials stated that the benefits received from such services are intangible, and, therefore, they did not have any physical records of the benefits received. We disagree that the Authority does not have or could not obtain physical records to show the benefits of the services. Arrest records, complaint logs, service calls, etc could all be used to evaluate the need for and frequency of the special services. 14 Conclusion The former executive director and the board of commissioners did not provide proper oversight over initiation and implementation of service agreements with the City of Newark. Because the Authority failed to maintain adequate supporting documentation, monitor the services provided, or audit the support when received, HUD can not be assured the $6.9 million paid to the City of Newark was for special services provided in addition to what should have been provided under the cooperation agreements or whether the payments were reasonable. Recommendations We recommend that the director of the HUD Office of Public Housing 2A. Review the documentation provided by the Authority, determine if the evidence supports that services were provided that exceeded the services that were to be provided in accordance with the cooperation agreements and seek reimbursement of any amounts that are not supported. We recommend that the director of the HUD Office of Public Housing require the Authority to: 2B. Establish procedures that will ensure that service agreements with the City of Newark are properly executed and monitored to ensure that services have been provided, and that costs charged to the Authority are reasonable, necessary, and properly documented. 15 Finding 3: The Authority Settled General Liability Claims without Obtaining HUD’s Written Approval Contrary to HUD requirements, the Authority settled general liability claims without first obtaining written approval from HUD as required. This occurred because Authority officials believed that HUD approval had already been obtained since insurance settlements are a line item in the Authority’s budget, which HUD approved. As a result, HUD could not be assured that legal settlements amounting to more than $1.2 million were processed in the most cost- effective manner. Further, the Authority contracted with a firm to review the settlements and provide an assessment of settlement levels and litigation management but only received the services for the first year of a three-year contract. No HUD Approval for Legal Settlements The Authority has a self-insurance program through which it pays up to the first $200,000 of general liability and workman’s compensation claims, with an insurance company paying the claim amounts in excess of $200,000. We examined Authority claims paid in excess of $10,000 and found that from April 1, 2001, through March 31, 2005, the Authority paid $1,233,735 to settle 17 general liability claims. However, the Authority entered into settlement agreements for these claims without obtaining the prior written approval of the HUD regional counsel . HUD Litigation Handbook 1530.01, REV-5, paragraph 5-3(c), states that a public housing authority shall accept no settlement arising out of litigation without the prior written concurrence of HUD. The terms of any such offer shall be communicated in writing to the regional counsel together with the recommendations of the public housing authority for disposition and the arguments in support of those recommendations. Paragraph 5-3(c) further states that if the opportunity for a settlement arises in the course of a trial, counsel for the public housing authority shall inform the court of these requirements and, in an appropriate case, shall respectfully move for a continuance to allow for an opportunity to obtain HUD concurrence in the terms of the proposed settlement . Authority officials stated that local HUD field office approval is not required or sought during the process of settling claims since the costs for insurance settlements are included in the Authority’s HUD-approved annual budget. However, local HUD officials informed us that although the Authority’s overall expenditures or funding level is approved for performance funding, HUD does not review the general line items in the budget; therefore, approval was not obtained. 16 The HUD regional counsel indicated that the requirements for prior written approval by HUD for general liability claims are applicable. The consolidated annual contributions contract, part A, section 5, requires the Authority to comply with all applicable statutes, executive orders, and regulations issued by HUD. Since advance written approval from the HUD regional counsel was not sought or obtained, HUD was not able to provide guidance on how to defend or settle various law suits, and could not be assured that these cases were resolved in the most economical or efficient manner. Contracted Reviews Were Not Performed On January 31, 2002, the Authority entered into a two-year contract with a consulting firm to provide broker consulting services for the purpose of enhancing the Authority’s loss control services under its property and casualty insurance program at a total cost of $151,450. The contract was later renewed for a third year for $78,200, and the consultant was paid $229,650. The contract required the consultant to perform an annual claims audit of the self-insured workers’ compensation and general liability claims operations. However, the claims audit was only performed for the first year. The audit’s scope should have included assessments of litigation management and settlement levels and identification of opportunities for improvement. The audits were not provided for the second and third years of the contract although the full amount of the contract was paid. This occurred because the Authority lacked controls to ensure that contractor complied with all requirements of the contract before being paid. However, Authority officials state (see comments in Appendix B), that although the audits were not conducted other services were provided that can substitute for the audits; further, since the audits were only valued at $7,000 per year only $14,000 should be at issue. Nevertheless, not only did HUD not review the claim settlements made, but the Authority’s hired consultant also did not review the claim settlements; therefore, HUD could not be assured that settlements were reasonable. Conclusion Due to the lack of controls, HUD could not be assured that the Authority’s self- insurance program was cost effective as prior approval from HUD was not obtained and risk management audits were not conducted. Therefore, procedures should be established to ensure that contracted services for risk management are provided, and the Authority should either seek the contracted risk management audits from the consultant, submit evidence to HUD so that HUD could determine whether the additional services provided were adequate in lieu of the claims audits, or obtain a price adjustment/refund for this contract. In addition, HUD needs to review the support for the 17 claims paid to ensure that the settlements were proper. 17 Recommendations We recommend that the director of HUD’s Office of Public Housing instruct the Authority to 3A. Establish procedure to ensure that HUD approval is obtained before settling general liability claims. 3B. Submit support for the 17 general liability claims amounting to $1,235,735 to the HUD regional counsel for review and approval. If any of the claims are determined to be unallowable, the amount of that claim should be repaid from nonfederal funds. 3C. Establish procedures that will ensure the contracted services for loss control are provided in accordance with terms of the broker/consultant contract. 3D. Either seek performance of the loss control audits that are required to be performed by the loss management-consulting contractor, submit evidence to HUD so that HUD could determine whether the additional services provided by the contractor were enough to forgo the two claims audits that were not performed, or obtain a refund for the services not performed in accordance with the contract. 18 SCOPE AND METHODOLOGY Our review was conducted at the the Housing Authority of the City of Newark located at 500 Broad Street, Newark, New Jersey. To accomplish our objectives, we interviewed HUD officials and officials of the Authority and its Housing Finance Corporation. In addition, we reviewed the following : • Applicable laws, regulations, and other HUD program requirements; • The Authority’s annual contribution contracts, trust indentures, and cooperation agreements; and • HUD’s and the Authority’s program files for the low-rent housing and Section 8 programs. We reviewed various documents including financial statements, ledgers, bank statements, invoices, purchase orders, contracts, check vouchers, and prior Office of Inspector General (OIG) and HUD reports on the Authority. We reviewed documentation regarding service agreements with the City of Newark, including activity reports and other supporting documents furnished by the Authority and the city. We also reviewed the Authority’s financial and administative records related to its Housing Finance Corporation, including bond trust indentures and refunding agreements, cooperation agreements and the memorandums of understanding with the City of Newark, and documentation related to liability claims that were paid by the Authority. We performed the audit from May through October 2005. The audit covered the period from April 1, 2001, through March 31, 2005, but was extended as necessary to periods before and after these dates. We performed our review in accordance with generally accepted government auditing standards. 19 INTERNAL CONTROLS Internal controls are an integral component of an organization’s management that provides reasonable assurance that the following objectives are being achieved: • Effectiveness and efficiency of operations, • Reliability of financial reporting, and • Compliance with applicable laws and regulations. Internal controls relate to management’s plans, methods, and procedures used to meet its mission, goals, and objectives. Internal controls include the processes and procedures for planning, organizing, directing, and controlling program operations. They include the systems for measuring, reporting, and monitoring program performance. Relevant Internal Controls We determined the following internal controls were relevant to our audit objectives: • Program operations - Policies and procedures that management has implemented to reasonably ensure that a program meets its objectives. • Compliance with laws and regulations - Policies and procedures that management has implemented to reasonably ensure that resource use is consistent with laws and regulations. • Safeguarding resources - Policies and procedures that management has implemented to reasonably ensure that resources are safeguarded against waste, loss, and misuse. • Validity and reliability of data - Policies and procedures that management has implemented to reasonably ensure that valid and reliable data are obtained, maintained, and fairly disclosed in reports. We assessed the relevant controls identified above. A significant weakness exists if management controls do not provide reasonable assurance that the process for planning, organizing, directing, and controlling program operations will meet the organization’s objectives Significant Weaknesses Based on our review, we believe the following items are significant weaknesses: 20 • The Authority did not have an adequate system to ensure compliance with laws and regulations related to the disposition of the proceeds of bond financing activities, obtaining support for payments made to the City of Newark, complying with cooperation agreements, and obtaining HUD approval for legal settlements (see findings 1, 2, and 3). • The Authority did not have an adequate system to ensure that resources were properly safeguarded when its Housing Finance Corporation made questionable payments of $67,524, it paid $6.9 million to the City of Newark for services provided under the cooperation agreements, it did not obtain HUD approval for legal settlements, and it did not ensure that risk management services were provided (see findings 1, 2, and 3). 21 FOLLOWUP ON PRIOR AUDITS Report No. 2005-NY-1005 Dated: May 26, 2005 We issued the above audit report entitled “The Housing Authority of the City of Newark Bond Financing Activities and Section 8 Housing Choice Voucher Administrative Fee Reserves.” The report contained two audit findings with recommendations for corrective action. The finding involved the Authority’s retaining of funds remaining after a bond issue had been redeemed and the use of housing choice voucher administrative fee reserves for ineligible purposes. The Authority has reimbursed the housing choice voucher administrative fee reserve account for the $3,991,350 expended for the acquisition of properties; however, the recommendations are still open. The Authority is appealing the recommendation that HUD be paid the $2,533,536 in funds that remained after the Authority’s 1980 mortgage revenue bonds were redeemed. The Office of Public Housing has established December 31, 2006, as the target date for the Auditee to complete its corrective actions and for HUD to verify the corrective actions taken. 22 APPENDIXES Appendix A SCHEDULE OF QUESTIONED COSTS AND FUNDS TO BE PUT TO BETTER USE Recommendation Funds to be put number Ineligible 1/ Unsupported 2/ to better use 3/ 1B $1,544,244 1C $59,450 1D $261,409 1E $1,956,429 1G $67,524 2A $6,900,000 1/ Ineligible costs are costs charged to a HUD-financed or HUD-insured program or activity that the auditor believes are not allowable by law; contract; or federal, state, or local polices or regulations. 2/ Unsupported costs are those costs charged to a HUD-financed or HUD-insured program or activity when we cannot determine eligibility at the time of audit. Unsupported costs require a decision by HUD program officials. This decision, in addition to obtaining supporting documentation, might involve a legal interpretation or clarification of departmental policies and procedures. 3/ “Funds to be put to better use” are quantifiable savings that are anticipated to occur if an OIG recommendation is implemented, resulting in reduced expenditures at a later time for the activities in question. This includes costs not incurred, deobligation of funds, withdrawal of interest, reductions in outlays, avoidance of unnecessary expenditures, loans and guarantees not made, and other savings. 23 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 1 Comment 2 24 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 3 Comment 4 Comment 5 Comment 6 25 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 6 Comment 7 Comment 8 26 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 8 Comment 9 Comment 10 27 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 11 Comment 12 28 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 12 29 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 12 30 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 12 Comment 13 Comment 14 Comment 13 Comment 15 Comment 16 31 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments Comment 16 Comment 17 32 Appendix B AUDITEE COMMENTS AND OIG’S EVALUATION Ref to OIG Evaluation Auditee Comments 33 OIG Evaluation of Auditee Comments The report scope has been corrected to reflect that our audit covered the Comment 1 period April 1, 2001 through March 31, 2005, and was extended to cover periods before and after these dates as necessary. Therefore, although our testing has led us to earlier years, the Authority’s current management is still responsible for the issues disclosed in this report. Comment 2 Although a prior OIG finding was resolved in an earlier year, it does not follow that the conditions that caused the finding do not exist today. Various issues described in this report do exist today, resulting in the current audit findings. In finding 1 funds still have not been deposited in debt service reserves and McKinney Act savings were still not being reported or expended in accordance with the requirements of the refunding agreements. In finding 2 the Authority has still not been able to obtain adequate supporting documentation for payments to the City of Newark for services that may have been provided as recently as 2003. In finding 3 HUD approval was not sought or obtained for general liability claims that occurred from 2003 through 2005. It is understood that the former executive director and board members may Comment 3 have initiated policy that led to some of the control weaknesses cited in this report; however, when the current executive director and board members assumed responsibility over the Authority it became their job to correct the control weaknesses. Nevertheless, we revised our finding to reflect that the former executive director was involved in the deficiencies noted. Finding 1 Debt Service Reserves In 1992 OIG chose to audit the flow of funds related to certain bonds issued Comment 4 by the City of Newark’s Housing Finance Corporation (Report No. 92-NY- 204-1009), and as a result, the Authority agreed to reimburse its Housing Finance Corporation the ineligible cost it received and to follow federal regulations pertaining to the receipt and use of excess compensation. However, as in 1992, the Authority did not fund the debt service reserves of the individual projects for which it had received excess compensation for, therefore, we are readdressing this issue. Further, the report requested that $1.5 million in excess management service income be placed into the individual projects’ debt service reserves. We requested that $320,959 ($59,450 and $261,409) be either returned to HUD or for HUD to determine whether it should be returned. 34 The Authority indicated that the citations of 24 CFR [Code of Federal Comment 5 Regulation] 811.105 and 811.108 were not applicable to bond issues under the old regulations. The old regulations did not require that surplus funds in the debt service reserve be remitted to HUD. The Authority also indicated that 44 Federal Register 12360, (March 6, 1979) stated the new regulations are only effective for those projects for which the Section 8 notification of selection of the preliminary proposal was issued on or after April 5, 1979, the effective date of the new regulations. The Authority stated that it had not been able to locate any notifications of selection and wanted to know our basis for applying the new regulations. The citations in 24 CFR [Code of Federal Regulations] Part 811 apply because all of the bonds other than Aspen Temple were issued after the effective date of the new regulations. Further, during our prior audit (92-NY-204-1009), HUD’s counsel verbally opined that the regulations were applicable. However, since we could not locate a formal opinion addressing this issue, we have added a recommendation for HUD to obtain a formal legal opinion regarding the applicability of the cited regulations and advise the Authority on the proper disposition of the funds in excess of expenses related to Aspen Temple and the other projects. Comment 6 The Authority indicated that the citations of 24 CFR [Code of Federal Regulations] 811.105(a) (2) (iii) (b) and 811.108 were not applicable for the bond issue for Aspen Temple which closed on November 21, 1978 before the April 5, 1979 effective date of the new regulations. However, the indenture of trust for Aspen Temple, section 103 provides that it is agreed among the Housing Finance Corporation, the trustee, and the Authority that all terms and provisions of the regulations, Federal Housing Administration regulations, and the National Housing Act are hereby incorporated by reference in the indenture and that they shall be controlling to the extent that they are in conflict with or in addition to the terms and provisions of the indenture and in the event of any inconsistency with the provisions of the indenture. Thus, it appears that the new regulations are applicable. The Housing Finance Corporation is entitled to reimbursement for its expenses including costs related to the bond issuance. Therefore, our review is only requesting that the total compensation that is in excess of the Housing Finance Corporation’s allowable costs be deposited in the debt service reserves of the individual projects. For Aspen Temple, the excess management service income was earned between June 30, 1980, and February 9, 1993 (after the effective date of the new regulations). Further, section 706 of the indenture of trust provides that the Aspen Temple Apartments Company may pay each of its fiduciaries reasonable compensation for services rendered under the indenture including reimbursement for all reasonable expenses incurred in the performance of 35 duties under the indenture. The Housing Finance Corporation recorded $491,369 in management services income applicable to Aspen Temple from June 30, 1980, through February 9, 1993. However, because no expenses were noted after June 30, 1980, on the Housing Finance Corporation’s records for management services provided to this project, this compensation does not appear to be reasonable according to the terms of the indenture of trust. Accordingly, we requested a legal determination regarding the disposition of these funds. The Housing Finance Corporation’s financial records (cash receipts Comment 7 journals) showed that the $50,778 was recorded as management services income pertaining to Fairview Homes not to the development Norfolk Square. Further, OIG’s prior audit report (Audit Report 92-NY-204-1009) questioned the fact that the Housing Finance Corporation did not place the excess funds into the project’s debt service reserves. Instead, funds ($125,800) were placed into the Authority’s general revolving fund. Upon our audit, the Authority returned these funds to the Housing Finance Corporation, although, a review of the records showed that the Housing Finance Corporation did not place these funds into the debt service reserves as required. However, based on the Authority’s claim that the regulations are not applicable, we revised our finding to include a recommendation for HUD to obtain a legal determination as to the proper disposition of the funds being retained by the Housing Finance Corporation. Thus, recommendation 1A, 1B, and 1C of the draft report are still applicable and are now 1B, 1C, and 1D. McKinney Act Savings Comment 8 The Housing Finance Corporation was required to report semiannually that it had expended the McKinney Act funds/savings within six months. Since it did not report on the use of these funds as required for a 10-year period, HUD was not aware that the funds were not being expended in a timely manner. Therefore, HUD was unable to apply a remedy to the Housing Finance Corporation’s default of possibly suspending the payment of future McKinney Act savings/payments until the default was resolved. Consequently, all of the McKinney Act savings/funds installments had been paid to the Housing Finance Corporation before HUD became aware of the default. Thus OIG recommended that the remaining McKinney Act savings that had not been spent be repaid to HUD due to the default on the requirements for reporting and spending the McKinney Act savings/funds. Further, the requirements do not state that the Authority has 10 years to expend the funds; however, they do state that the savings/funds are subject to specific use requirements for 10 years. The funds must be expended within six months of receiving each installment payment according to the refunding agreement. 36 In addition, the Authority’s September 3, 2004, submission of its proposal on how the McKinney Act funds would be expended did not resolve the default of not reporting. In HUD’s September 27, 2004, response, HUD stated that the Authority’s letter satisfied the 90 day deadline for an initial progress report and that HUD looked forward to receiving timely reports in the future to the extent the Authority continued to receive McKinney Act savings installments. This letter did not state that HUD had approved the proposed use of funds. Nevertheless, since Authority officials state that repayment or recapture is not an option for not expending the funds in a timely manner in accordance with the regulations and the refunding agreement, we have revised our recommendation to require the Office of Public Housing to obtain a legal determination as to the proper disposition of the unspent McKinney Act savings/funds being retained by the Housing Finance Corporation. We further recommend that in the event the Housing Finance Corporation is allowed to retain the McKinney Act savings, controls should be established to ensure compliance with the spending and reporting requirements of the refunding agreements and regulations. We also removed the statement that the Authority did not respond until OIG began its inquiry during the audit. Further, recommendation 1D of the draft report is now 1E, and it now reflects that the funds in question should be disposed in accordance with the legal determiniation. Questionable Disbursements Comment 9 In this section the costs that are being questioned represent items paid with non-McKinney Act funds, which should only be used for the payment of principal and interest on the obligation or for expenses related to the financing of the project. Since some of the funds used for these expenses may have been from McKinney Act savings, the draft report states that these funds could also be used for providing housing for low-income families. However, the $26,035 paid for the lawsuit was paid with non- McKinney Act funds, and since these costs were not directly related to financing activities, they appear to be ineligible costs. However, based on the documents submitted at the exit conference, we classify these costs as unsupported pending an eligibility determination by HUD. Comment 10 We have accepted the $80,000 in costs paid to the borrower as being an allowable financing-related cost based on the Authority’s explanation and review of the supporting documents. These questioned costs have been eliminated from the finding. Regarding the $41,489 for consulting services, we could not determine Comment 11 whether it was paid with McKinney Act or Non-McKinney Act funds. These costs would not be allowable if paid with non-McKinney funds since the costs were not directly related to financing activities. Further, if 37 the funds were classified as McKinney Act disbursements, a determination would have to be made by HUD that they are allowable development costs. Therefore, we classify these costs as unsupported pending an eligibility determination by HUD. Regarding the recommendations, they are valid because the Housing Finance Corporation has not conducted its operations in accordance with the applicable regulations. However, we have revised our recommendations; recommendation 1E is now 1G, which reflects that the amount of questioned costs is now $67,524. Finding 2 The Authority’s comments allude that OIG looked at the additional Comment 12 payments to the City of Newark because the initial resolution authorizing the services contained discrepancies in the time of performance of these services, which was addressed, after the fact, by a board resolution made during the audit (July 2005); however, this was not the only reason we examined these costs. Authority officials provided three boxes of documents related to the police services; however, as mentioned in the audit finding, the information did not provide the basis for determining the costs, nor did the Authority substantiate that the services provided were in addition to the normal services required of the city under the cooperation agreementThe supporting documents provided did not contain payroll- related information about salary or wages, time distribution records signed and approved by a responsible official. Moreover, there were no periodic certifications signed or certified by employees or supervisors having first hand knowledge of the work performed. More importantly, the documentation provided by the City indicated that the costs charges were based on a rate of $50 per hour, yet the actual salary costs for the periods in question were never provided. The Authority also asserts that additional police services were needed as evidenced by HUD providing them with a Drug Elimination Grant during the period. However, Drug Elimination Grants are not necessarily for additional police services. In this case, the Drug Elimination Grants were provided from 1998 to 2001 for the employment of security and investigators, voluntary tenant patrols, physical improvements, drug prevention, special initiatives, gun buyback programs, and other program costs. The Drug Elimination Grants did not mention additional police services. Further the report does not state that police services were not provided or that the Authority should monitor the activities of the police. The report indicates that the services may have been routine, and that the cost of these services is not documented. Although the Authority as stated in their reponse provided three boxes of documents and two binders at the exit 38 conference, stating that the city incurred over $12 million in costs, there was insufficient evidence to substantiate the cost of these services, that the services were in addition to what was required under the cooperation agreement, and that the services were worth more than the $800,000 already provided to the city in payments in lieu of taxes. As such, the auditors asked for cost data, such as payroll records etc., that could be used to justify the additional payments made to the city. As mentioned in the finding, the schedules provided documented routine items such as traffic stops, auto accidents, domenstic disputes and reported roberies, etc., however, the documentation was inadequate to make a determination that the costs were reasonable. Therefore, contrary to the requirement of its annual contribution contract, cooperation agreement, and federal regulations, the Authority did not maintain adequate documentation to support the additional payments made to the City of Newark. Comment 13 After consultation with the Newark HUD Office of Public Housing, draft recommendation 2B that required the Authority to obtain HUD approval before entering into any agreements with the City of Newark has been deleted. In addition, we have deleted draft recommendation 2D that required sanctions against the board and the executive director. Further, OIG never stated that the Authority should oversee law enforcement activities; however, the Authority should ensure that documents submitted to request reimbursement for services are adequately reviewed before payment. The Authority did not have procedures in place to ensure that service Comment 14 agreements were properly monitored; that the services were provided and that the costs were reasonable, necessary and properly documented. Note that recommendation 2C in the draft report is still applicable and is now 2B. Finding 3 Comment 15 The Authority’s actions are responsive to the audit finding. The Authority’s comments admit that the claims audits were not performed Comment 16 for two of the years. However, Authority officials state that in lieu of these audits the contractor performed other services related to asbestos problems at the Authority’s headquarters office and at one project. Authority officials further stated that since the audits only cost $7,000 per year only $14,000 should be at issue. However, although we accept most of the Authority’s comments that other services may have been provided; the additional 39 documentation provided indicated that the claims audits that were not performed might be valued at $21,300 ($10,380 and $10,920). Nevertheless, to clarify this issue HUD needs to make a determination on whether the equivalent services provided were adequate in lieu of the audits that were not performed, and on whether any funds should be repaid. Comment 17 The significant weaknesses identified in the Internal Control section of the report, which relate to the Authority not having adequate systems to ensure compliance with laws and regulations and to ensure resources are properly safeguarded are valid conclusions that still exist today based on the results of the audit (see examples in the evaluation of comment 2). Further, we have evaluated the Authority's comments and supporting documentation and made appropriate revisions to the findings and recommendations. 40
The Housing Authority of the City of Newark Controls Over Bond Financing Activities, Obtaining Supporting Documentation, and Legal Settlements Require Improvement
Published by the Department of Housing and Urban Development, Office of Inspector General on 2006-02-14.
Below is a raw (and likely hideous) rendition of the original report. (PDF)