§ 3959 — Control period

New York § 3959

• Jurisdiction: New York
• Law PBA: Public Authorities
• Title 3: Erie County Fiscal Stability Authority
• Art. 10-D: Miscellaneous Authorities

Text

§ 3959. Control period. 1. The authority shall impose a control period\nat any time that any of the following events has occurred or that there\nis a substantial likelihood and imminence of such occurrence: (a) the\ncounty shall have failed to adopt a balanced budget within time frames\nprescribed in the county charter, financial plan or budget modification\nas required by sections thirty-nine hundred fifty-six and thirty-nine\nhundred fifty-seven of this title; (b) the county shall have failed to\npay the principal of or interest on any of its bonds or notes when due;\n(c) the county shall have incurred a major operating funds deficit of\none percent or more in the aggregate results of operations of such funds\nof the county during its fiscal year assuming all revenues and\nexpenditures are reported in accordance with generally accepted\naccounting principles, subject to the provisions of this title; (d) the\ncomptroller's certification at any time, at the request of the authority\nor on the comptroller's initiative, which certification shall be made\nfrom time to time as promptly as circumstances warrant and reported to\nthe authority, that on the basis of facts existing at such time the\ncomptroller could not make the certification described in paragraph (b)\nof subdivision one of section thirty-nine hundred fifty-one of this\ntitle; or (e) the county shall have violated any provision of this\ntitle. The authority shall terminate any such control period when it\ndetermines that none of the conditions which would permit the authority\nto impose a control period exist. After termination of a control period\nthe authority shall annually consider paragraphs (a) through (e) of this\nsubdivision and determine whether, in its judgment, any of the events\ndescribed in such paragraphs have occurred and the authority shall\npublish each such determination. Any certification made by the\ncomptroller hereunder shall be based on the comptroller's written\ndetermination which shall take into account a report and opinion of an\nindependent expert in the marketing of municipal securities selected by\nthe authority, and the opinion of such expert and any other information\ntaken into account shall be made public when delivered to the authority.\nNotwithstanding any part of the foregoing to the contrary, in no event\nshall any control period continue beyond the later of (i) December\nthirty-first, two thousand thirty-nine, or (ii) the date when all bonds\nof the authority are refunded, discharged or otherwise defeased.\n 2. In carrying out the purposes of this title during any control\nperiod, the authority:\n (a) shall approve or disapprove the financial plan and the financial\nplan modifications of the county, as provided in section thirty-nine\nhundred fifty-seven of this title, and shall formulate and adopt its own\nmodifications to the financial plan, as necessary; such modifications\nshall become effective upon their adoption by the authority;\n (b) may set a maximum level of spending for any proposed budget of any\ncovered organization;\n (c) may impose a wage and/or hiring freeze: (i) During a control\nperiod, upon a finding by the authority that a wage and/or hiring freeze\nis essential to the adoption or maintenance of a county budget or a\nfinancial plan that is in compliance with this title, the authority\nshall be empowered to order that all increases in salary or wages of\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, now in existence or hereafter entered into, requiring such\nsalary or wage increases as of any date thereafter are suspended. Such\norder may also provide that all increased payments for holiday and\nvacation differentials, shift differentials, salary adjustments\naccording to plan and step-ups or increments for employees of the county\nand employees of covered organizations which will take effect after the\ndate of the order pursuant to collective bargaining agreements, other\nanalogous contracts or interest arbitration awards requiring such\nincreased payments as of any date thereafter are, in the same manner,\nsuspended. For the purposes of computing the pension base of retirement\nallowances, any suspended salary or wage increases and any other\nsuspended payments shall not be considered as part of compensation or\nfinal compensation or of annual salary earned or earnable;\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph, this subdivision shall not be applicable to employees of the\ncounty or employees of a covered organization subject to a collective\nbargaining agreement or an employee of the county or a covered\norganization not subject to 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 deferral 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 (iii) Notwithstanding the provisions of subparagraphs (i) and (ii) of\nthis paragraph, no retroactive pay adjustments of any kind shall accrue\nor be deemed to accrue during the period of wage freeze, and no such\nadditional amounts shall be paid at the time a wage freeze is lifted, or\nat any time thereafter;\n (d) shall periodically evaluate the suspension of salary or wage\nincreases or suspensions of other increased payments or benefits, and\nmay, if it finds that the fiscal crisis, in the sole judgment of the\nauthority has abated, terminate such suspensions;\n (e) shall review and approve or disapprove any collective bargaining\nagreement to be entered into by the county or any covered organization,\nor purporting to bind, the county or any covered organization. Prior to\nentering into any collective bargaining agreement, the county or any\ncovered organization shall submit a copy of such collective bargaining\nagreement to the authority, accompanied by an analysis of the projected\ncosts of such agreement and a certification that execution of the\nagreement will be in accordance with the financial plan. Such submission\nshall be in such form and include such additional information as the\nauthority may prescribe. The authority shall promptly review the terms\nof such collective bargaining agreement and the supporting information\nin order to determine compliance with the financial plan, and shall\ndisapprove any collective bargaining agreement which, in its judgment,\nwould be inconsistent with the financial plan. No collective bargaining\nagreement binding, or purporting to bind, the county or any covered\norganization after the effective date of this title shall be valid and\nbinding upon the county or any covered organization unless first\napproved by resolution of the authority;\n (f) shall act jointly with the county in selecting members of any\ninterest arbitration panel. Notwithstanding any other evidence presented\nby the county, the covered organization or any recognized employee\norganization, the arbitration panel must, prior to issuing any final\ndecision, provide the authority with the opportunity to present evidence\nregarding the fiscal condition of the county;\n (g) shall take any action necessary in order to implement the\nfinancial plan should the county or any covered organization have failed\nto comply with any material action necessary to fulfill the plan,\nprovided, however, the authority shall provide seven days notice of its\ndetermination that the county or any covered organization has not\ncomplied prior to taking any such action;\n (h) may review and approve or disapprove contracts or other\nobligations binding or purporting to bind the county or any covered\norganization;\n (i) shall, with respect to any proposed borrowing by or on behalf of\nthe county or any covered organization on or after July first, two\nthousand five, review the terms of and comment, within thirty days after\nnotification by the county or covered organization of a proposed\nborrowing, on the prudence of each proposed issuance of bonds or notes\nto be issued by the county or covered organization and no such borrowing\nshall be made unless first reviewed, commented upon and approved by the\nauthority. The authority shall comment within thirty days after\nnotification by the county or covered organization of a proposed\nborrowing to the county executive, the comptroller, the legislature, the\ndirector of the budget, the chair of the state senate finance committee,\nthe chair of the state assembly ways and means committee and the state\ncomptroller and indicate approval or disapproval of the proposed\nborrowing. Notwithstanding the foregoing, neither the county nor any\ncovered organization shall be prohibited from issuing bonds or notes to\npay outstanding bonds or notes; and, provided further, revenue\nanticipation notes issued in July two thousand five, shall be excluded\nfrom this requirement;\n (j) may review the operation, management, efficiency and productivity\nof the county and any covered organizations as the authority may\ndetermine, and make reports thereon; examine the potential to enhance\nthe revenue of the county or any covered organization; audit compliance\nwith the financial plan in such areas as the authority may determine;\nrecommend to the county and the covered organizations such measures\nrelating to their operations, management, efficiency and productivity as\nthe authority deems appropriate to reduce costs, enhance revenue, and\nimprove services so as to advance the purposes of this title;\n (k) may review and approve or disapprove the terms of any proposed\nsettlement of claims against the county or any covered organization in\nexcess of fifty thousand dollars;\n (l) may obtain from the county, the covered organizations, the\ncomptroller, and the state comptroller, as appropriate, all information\nrequired pursuant to this section, and such other financial statements\nand projections, budgetary data and information, and management reports\nand materials as the authority deems necessary or desirable to\naccomplish the purposes of this title; and inspect, copy and audit such\nbooks and records of the county and the covered organizations as the\nauthority deems necessary or desirable to accomplish the purposes of\nthis title;\n (m) may perform such audits and reviews of the county and any agency\nthereof and any covered organizations as it deems necessary; and\n (n) may issue, from time to time and to the extent it deems necessary\nor desirable in order to accomplish the purposes of this title, to the\nappropriate official of the county and each covered organization, such\norders necessary to accomplish the purposes of this title, including,\nbut not limited to, timely and satisfactory implementation of an\napproved financial plan. Any order so issued shall be binding upon the\nofficial to whom it was issued and failure to comply with such order\nshall subject the official to the penalties described in subdivision\nthree of this section.\n 3. (a) During any control period: (i) no officer or employee of the\ncounty or of any of the covered organizations shall make or authorize an\nobligation or other liability in excess of the amount available therefor\nunder the financial plan as then in effect; (ii) no officer or employee\nof the county or of any of the covered organizations shall involve the\ncounty or any of the covered organizations in any contract or other\nobligation or liability for the payment of money for any purpose\nrequired to be approved by the authority unless such contract has been\nso approved and unless such contract or obligation or liability is in\ncompliance with the approved financial plan 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 employee 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 of a covered\norganization, the county executive or the chief executive officer of\nsuch covered organization shall immediately report to the authority all\npertinent facts together with a statement of the action taken thereon.\n