§ 3669 — Control period

§ 3669. Control period. 1. The authority shall impose a control\nperiod over the county or the Nassau health care corporation upon its\ndetermination at any time that any of the following events has occurred\nor that there is a substantial likelihood and imminence of such\noccurrence: (a) the county or the Nassau health care corporation shall\nhave failed to pay the principal of or interest on any of its bonds or\nnotes when due or payable, (b) the county or the Nassau health care\ncorporation shall have incurred a major operating funds deficit of one\npercent or more in the aggregate results of operations of such funds\nduring its fiscal year assuming all revenues and expenditures are\nreported in accordance with generally accepted accounting principles,\nsubject to the provisions of this title, (c) the county or the Nassau\nhealth care corporation shall have otherwise violated any provision of\nthis title and such violation substantially impairs the marketability of\nthe county's bonds or notes or the Nassau health care corporation's\nbonds or notes, (d) the chief fiscal officer's certification at any\ntime, at the request of the authority or on the chief fiscal officer's\ninitiative, which certification shall be made from time to time as\npromptly as circumstances warrant and reported to the authority, that on\nthe basis of facts existing at such time such officer could not make the\ncertification described by paragraph (b) of this subdivision in the\ndefinition of interim finance period in section thirty-six hundred\nfifty-one of this title, or (e) the authority makes the finding required\nunder paragraph (g) of subdivision two of section thirty-six hundred\nsixty-seven of this title. The authority shall terminate any such\ncontrol period when it determines that none of the conditions which\nwould permit the authority to impose a control period exist. After\ntermination of a control period the authority shall annually consider\nparagraphs (a) through (e) of this subdivision and determine whether, in\nits judgment, any of the events described in such paragraphs have\noccurred and the authority shall publish each such determination. Any\ncertification made by the chief fiscal officer hereunder shall be based\non such officers' written determination which shall take into account a\nreport and opinion of an independent expert in the marketing of\nmunicipal securities selected by the authority, and the opinion of such\nexpert and any other information taken into account shall be made public\nwhen delivered to the authority. Notwithstanding any part of the\nforegoing to the contrary, in no event shall any control period continue\nbeyond the later of (i) January first, two thousand thirty, or (ii) the\ndate when all bonds of the authority are refunded, discharged or\notherwise defeased.\n 2. In carrying out the purposes of this title during any control\nperiod:\n (a) The authority shall (i) consult with the county or the covered\norganizations in the preparation of the financial plan, and certify to\nthe county the revenue estimates approved therein, (ii) prescribe the\nform of the financial plan and the supporting information required in\nconnection therewith, (iii) exercise the rights of approval, disapproval\nand modification with respect to the financial plan, including but not\nlimited to the revenue estimates contained therein, and (iv) in the\nevent the authority has made the finding required under section\nthirty-six hundred sixty-seven of this title, formulate and adopt its\nmodifications to the financial plan, such modifications to become\neffective on their adoption by the authority.\n (a-1) If a control period is imposed over the Nassau health care\ncorporation, the authority shall require the Nassau health care\ncorporation to report financial information to the authority in such\nform and manner and containing such information as the authority shall\nprescribe, including, but not limited to, expenditure and cash flow\nprojections, disbursements and receipts, and budget data depicting\noverall trends of actual revenue and expenditures and any other\ninformation described in section thirty-six hundred sixty-seven of this\ntitle determined to be relevant by the authority.\n (b) The authority shall, from time to time and to the extent it deems\nnecessary or desirable in order to accomplish the purposes of this\ntitle, (i) review the operations, management, efficiency and\nproductivity of such county operations and of such covered organizations\nor portions thereof as the authority may determine, and make reports\nthereon; (ii) audit compliance with the financial plan in such areas as\nthe authority may determine; (iii) recommend to the county and the\ncovered organizations such measures relating to their operations,\nmanagement, efficiency and productivity as it deems appropriate to\nreduce costs and improve services so as to advance the purposes of this\ntitle; and (iv) obtain information on the financial condition and needs\nof the county and the covered organizations. Nothing herein shall\ndiminish the powers of the state comptroller otherwise provided by law\nand the authority may request the assistance of the state comptroller in\nthe performance of the above functions.\n (c) The authority shall (i) receive from the county and the covered\norganizations and from the state comptroller, and review, such financial\nstatements and projections, budgetary data and information, and\nmanagement reports and materials as the authority deems necessary or\ndesirable to accomplish the purposes of this title, and (ii) inspect,\ncopy and audit such books and records of the county and the covered\norganizations as the authority deems necessary or desirable to\naccomplish the purposes of this title.\n (d) All contracts entered into by the county or any covered\norganization during any control period must be consistent with the\nprovisions of this title and must comply with the requirements of the\nfinancial plan as approved by the authority. With respect to all\ncontracts or other obligations to be entered into by the county or any\ncovered organization during any control period requiring the payment of\nfunds or the incurring of costs by the county or any covered\norganizations:\n (i) Within twenty days from the commencement of a control period, the\ncounty executive, or the chairperson of the Nassau health care\ncorporation in the case of a control period imposed pursuant to\nparagraph a-one of subdivision two of this section, shall present to the\nauthority proposed guidelines respecting the categories and types of\ncontracts and other obligations required to be reviewed by the authority\npursuant to this subdivision. Any such guidelines may provide a\ndifferent standard for review with respect to contracts of any covered\norganization as the authority shall determine. Within thirty days from\nthe commencement of a control period, the authority shall approve or\nmodify and approve such proposed guidelines or promulgate its own in the\nevent that such proposed guidelines are not submitted to it within the\ntwenty days as provided for herein. Such guidelines may thereafter be\nmodified by the authority from time to time on not less than thirty\ndays' notice to the county executive or chairperson of the Nassau health\ncare corporation and the county executive or chairperson of the Nassau\nhealth care corporation may from time to time propose modifications to\nthe authority. Unless expressly disapproved or modified by the authority\nwithin thirty days (or such additional time, not exceeding thirty days,\nas the authority shall have notified the county or covered organization\nthat it requires to complete its review and analysis) from the date of\nsubmission by the county executive or chairperson of the Nassau health\ncare corporation, any such proposed guidelines or modifications shall be\ndeemed approved by the authority;\n (ii) Prior to entering into any contract or other obligation subject\nto review of the authority under its guidelines, the county or any\ncovered organization shall submit a copy of such contract or other\nobligation to the authority accompanied by an analysis of the projected\ncosts of such contract or other obligation and certification that\nperformance thereof will be in accordance with the financial plan, all\nin such form and with such additional information as the authority may\nprescribe. The authority shall promptly review the terms of such\ncontract or other obligation and the supporting information in order to\ndetermine compliance with the financial plan;\n (iii) The authority shall, by order, disapprove any contract or other\nobligation reviewed by it only after adoption of a resolution\ndetermining that, in its judgment, the performance of such contract or\nother obligation would be inconsistent with the financial plan, and upon\nsuch order the county or covered organization shall not enter into such\ncontract or other obligation; and\n (iv) If the authority approves the terms of a reviewed contract or\nother obligation, the county or covered organization may enter into such\ncontract or other obligation upon the terms submitted to the authority.\nFailure of the authority to notify the county or covered organization\nwithin thirty days (or such additional time, not exceeding thirty days,\nas the authority shall have notified the county or covered organization\nthat it requires to complete its review and analysis) after submission\nto it of a contract or other obligation that such contract or other\nobligation has been disapproved shall be deemed to constitute authority\napproval thereof.\n (e) The authority shall review the terms of each proposed long-term\nand short-term borrowing by the county and any covered organization to\nbe effected during any control period, and no such borrowing shall be\nmade during any control period unless it is approved by the authority.\nNeither the county nor any covered organization shall be prohibited from\nissuing bonds or notes to pay outstanding bonds or notes.\n (f) The authority shall issue, to the appropriate official of the\ncounty and each covered organization, such orders as it deems necessary\nto accomplish the purposes of this title, including, but not limited to,\ntimely and satisfactory implementation of an approved financial plan.\nAny order so issued shall be binding upon the official to whom it was\nissued and failure to comply with such order shall subject the official\nto the penalties described in subdivision four of this section.\n (g) The authority is authorized to and shall withhold any transitional\nstate aid and not pay such moneys to the county during any control\nperiod.\n 3. Authorization for wage freeze. (a) During a control period, upon a\nfinding by the authority that a wage freeze is essential to the adoption\nor maintenance of a county budget or a financial plan that is in\ncompliance with this title, the authority, after enactment of a\nresolution so finding, may declare a fiscal crisis. Upon making such a\ndeclaration, the authority shall be empowered to order that all\nincreases in salary or wages of employees of the county and employees of\ncovered organizations which will take effect after the date of the order\npursuant to collective bargaining agreements, other analogous contracts\nor interest arbitration awards, now in existence or hereafter entered\ninto, requiring such salary increases as of any date thereafter are\nsuspended. Such order may also provide that all increased payments for\nholiday and vacation differentials, and shift differentials for\nemployees of the county and employees of covered organizations which\nwill take effect after the date of the order pursuant to collective\nbargaining agreements, other analogous contracts or interest arbitration\nawards requiring such increased payments as of any date thereafter are,\nin the same manner, suspended. Such order may also provide that all\nincreased payments for salary adjustments according to plan and step-ups\nor increments be suspended; provided, however, when (i) the county\nexecutive provides a four year financial plan approved by the county\nlegislature pursuant to paragraph (a) of subdivision two of section\nthirty-six hundred sixty-seven of this title and the authority\ndetermines, pursuant to paragraph (b) of such subdivision, that such\nfinancial plan is complete and complies with the standards set forth in\nsuch subdivision, and (ii) the authority makes a certification to the\ncounty setting forth revenue estimates agreed to by the authority in\naccordance with such determination, the salary adjustments according to\nplan and step-ups or increments, not including cost of living increases,\nshall not be suspended for each year in which the four year financial\nplan has been certified. This inability to suspend the salary\nadjustments according to plan and step-ups or increments shall be\napplicable to county employees and employees of covered organizations,\nwhether or not they are covered by a collectively negotiated agreement,\nif an individual employee or members of an employee's bargaining unit\npreviously participated in a wage freeze implemented by the authority\nunder this section and such wage freeze was subsequently lifted by the\nauthority by the issuance of a resolution, pursuant to paragraph (b) or\n(c) of this subdivision, certifying that the suspension of their wage\nincreases or an agreement by the collective bargaining representative or\nby such unrepresented employee was an acceptable and appropriate\ncontribution toward alleviating the fiscal crisis of the county.\nIrrespective of the duration of any approved or accepted four-year\nfinancial plan, for employees who are members of a bargaining unit, this\ninability to suspend the salary adjustment according to plan and\nstep-ups or increments shall take effect October first, two thousand\nsixteen and shall be in effect for employees for the duration of the\nnext collective bargaining agreement succeeding either (i) the\ncollective bargaining agreement in effect on November sixth, two\nthousand eighteen or (ii) the most recently expired collective\nbargaining agreement prior to November sixth, two thousand eighteen;\nwhichever is later. If the succeeding collective bargaining agreement's\nduration is modified, extended, or renewed, this modification, extension\nor renewal does not modify, extend or renew the term of the inability to\nsuspend salary adjustments according to plan and step-ups or increments.\nFor employees who are not members of a bargaining unit, this inability\nto suspend the salary adjustment according to plan and step-ups or\nincrements shall be effective October first, two thousand sixteen\nthrough December first, two thousand twenty-one. For the purposes of\ncomputing the pension base of retirement allowances, any suspended\nsalary or wage increases and any suspended other payments shall not be\nconsidered as part of compensation or final compensation or of annual\nsalary earned or earnable. The suspensions authorized hereunder shall\ncontinue until one year after the date of the order and, to the extent\nof any determination of the authority that a continuation of such\nsuspensions, to a date specified by the authority, is necessary in order\nto achieve the objectives of the financial plan, such suspensions shall\nbe continued to the date specified by the authority, which date shall in\nno event be later than the end of the interim finance period, provided\nthat such suspensions shall terminate with respect to employees who have\nagreed to a deferral of salary or wage increase upon the certification\nof the agreement by the authority pursuant to paragraph (b) of this\nsubdivision.\n (b) This subdivision shall not be applicable to employees of the\ncounty or employees of a covered organization covered by a collective\nbargaining agreement or an employee of the county or a covered\norganization not covered by a collective bargaining agreement where the\ncollective bargaining representative or such unrepresented employee has\nagreed to a deferment of salary or wage increase, by an instrument in\nwriting which has been certified by the authority as being an acceptable\nand appropriate contribution toward alleviating the fiscal crisis of the\ncounty. Any such agreement to a deferment of salary or wage increase may\nprovide that for the purposes of computing the pension base of\nretirement allowances, any deferred salary or wage increase may be\nconsidered as part of compensation or final compensation or of annual\nsalary earned or earnable.\n (c) The authority may, if it finds that the fiscal crisis has been\nsufficiently alleviated or for any other appropriate reason, direct that\nthe suspensions of salary or wage increases or suspensions of other\nincreased payments or benefits shall, in whole or in part, be\nterminated.\n 4. Prohibition; penalties. (a) During any control period (i) no\nofficer or employee of the county or of any of the covered organizations\nshall make or authorize an obligation or other liability in excess of\nthe amount available therefor under the financial plan as then in\neffect; (ii) no officer or employee of the county or of any of the\ncovered organizations shall involve the county or any of the covered\norganizations in any contract or other obligation or liability for the\npayment of money for any purpose required to be approved by the\nauthority unless such contract has been so approved and unless such\ncontract or obligation or liability is in compliance with the financial\nplan as then in effect.\n (b) No officer or employee of the county or any of the covered\norganizations shall take any action in violation of any valid order of\nthe authority or shall fail or refuse to take any action required by any\nsuch order or shall prepare, present or certify any information\n(including any projections or estimates) or report to the authority or\nany of its agents that is false or misleading, or, upon learning that\nany such information is false or misleading, shall fail promptly to\nadvise the authority or its agents thereof.\n (c) In addition to any penalty or liability under any other law, any\nofficer or employees of the county or any of the covered organizations\nwho shall violate paragraph (a) or (b) of this subdivision shall be\nsubject to appropriate administrative discipline, including, when\ncircumstances warrant, suspension from duty without pay or removal from\noffice by order of either the governor or the county executive; and any\nofficer or employees of the county or any of the covered organizations\nwho shall knowingly and willfully violate paragraph (a) or (b) of this\nsubdivision shall, upon conviction, be guilty of a misdemeanor.\n (d) In the case of a violation of paragraph (a) or (b) of this\nsubdivision by an officer or employee of the county or any of the\ncovered organizations, the county executive or the chief executive\nofficer of such covered organization shall immediately report to the\nauthority all pertinent facts together with a statement of the action\ntaken thereon.\n