June 22, 2007
Legislative Session Fades to Black
The opening chords of Journey's "Don't Stop Believing" fill the Assembly and Senate chambers, where suspicious faces stare at state legislators sitting at their desks. The smell of onion rings and coffee waifs through the crowded halls. Bleary-eyed staffers shuffle papers and avoid eye contact. Outside, lobbyists struggle to parallel park. At the climactic moment, the Governor and legislative leaders emerge from behind closed doors...suddenly, the music cuts out and the legislative session fades to black.
The frustrating and unforgettable final scene of the award-winning television series "The Sopranos" reminds us how often art imitates life. This was particularly true at the end of the regular 2007 State Legislative Session.
After last minute negotiations, the Governor and legislative leaders failed to reach agreement on a host of priority issues. The discussions included expanded campaign finance laws, up to $1 billion of capital spending, paid family leave, judicial pay raises, and the siting of power generating facilities. A much touted plan to reform the Wicks Law, which requires separate contractors for heating, plumbing, and electrical responsibilities on municipal construction projects larger than $50,000, did not achieve final passage.
In the end, NYSAC was able to move several important measures through the legislature and block many more that would have negatively impacted counties. With plans to return over the next several weeks to complete legislative business, NYSAC is gearing up to address several remaining priorities. Pending completion of the extended legislative session, we will publish a complete summary of our activities and legislation of interest to counties. (Ken Crannell)
The following are general highlights of the regular legislative session by programmatic area.
Taxation and Finance
Staff Contact: Ken Crannell
Counties have the authority to impose a sales tax rate up to three percent and must obtain special state legislation to impose a sales tax at a higher rate on a “temporary” basis. This session over 50 counties had to request state legislation to extend these tax rates, even though some of these “temporary” taxes have been in place for over twenty years.
Over the course of the session, NYSAC tracked over 80 county tax and fee bills, and it has become increasingly difficult for counties to have these issues addressed by the legislature on a case by case basis. Several intense debates and votes on the Assembly floor highlighted the need for reform of the current process, with several local bills still pending as the legislature left town. For the status of any particular county bill, please contact the NYSAC offices.
Other local finance highlights include the following.
S.1322 Bruno / A.2755 Farrell - This bill made comprehensive reforms to the State Budget Process. The additions to the existing State Finance law include:
- an agreement that the State Legislature will enact a balanced budget. Currently, only the Governor is required to propose a balanced budget;
- the elimination of lump-sum appropriations and the itemization of all legislative additions to the budget;
- an expedited revenue consensus process that will require the Governor and Legislature to reach a revenue compromise by March 1st or the State Comptroller will establish a binding revenue estimate by March 5th;
- a streamlined budget review process with the Governor having 21 days, rather than 30, to submit budget amendments and a schedule of legislative budget conference committees within 10 days of the Governor’s budget submission; and
- a commitment that the Governor and Legislature will hold quarterly budget meetings and set aside a total of five percent of the State’s General Fund to be used in the event of economic downturn or disaster.
NYSAC had long advocated for a more detailed state assessment of fiscal and legal provisions impacting counties from the state budget and supported this legislation through the entire legislative process. This bill was signed by the Governor as Chapter 1 of the Laws of 2007.
S.1584-a Libous / A.4868 Lupardo - Following the June flood of 2006, twenty counties throughout New York State’s Hudson and Mohawk Valleys and Southern Tier were designated as both Federal and State disaster areas. Thousands of county residents were victims of record damage with many finding they homeless or with extensive property damage. As a result of the damage, these properties are valued at much less than the tax records would reflect.
This legislation allowed counties that were impacted by this natural disaster the option of making adjustments to the 2006 real property tax rolls and issuing refunds to impacted real property taxpayers. The bill was signed into law as Chapter 15 of the Laws of 2007.
S.5370-a Little / A.6620-a Hoyt - This bill amends the Local Finance law creating a uniform process for municipal deficit financing. While municipalities will still need to seek special authorization from the State Legislature to permit deficit financing, this bill will require the financing follow previously established standard reporting requirements. This bill was ultimately passed by both the Senate and Assembly.
Health and Human Services
Staff Contact: Jessica Morelli
In a particular flurry this session, there were a number of health and human services issues causing tension in the Capitol. What made this unusual is that the majority of these issues are typically addressed as part of the State Budget. This session, however, many bills were introduced around areas of concern and/or an influx of media attention. NYSAC was heavily involved in the negotiation and intense discussion surrounding health and human services legislation with a local programmatic and/or fiscal impact. The following are highlights of this activity.
- S.5875 Hannon / A.8356 Wright - This bill will provide for the "suspension" of Medicaid benefits for individuals incarcerated in local and state correctional facilities and the immediate reinstatement of those benefits upon release. The current reenrollment process causes an unnecessary administrative burden on the system and takes time and resources away from others who need to be enrolled. By "suspending" rather than "terminating" Medicaid benefits, inmates would have Medicaid coverage at the moment of release. NYSAC worked extensively on this legislation and is pleased to report that this bill has passed both houses.
- S.4009B Rath / A.6610 Paulin - This bill authorizes counties to establish differential response for child protective assessments or interventions. NYSAC is pleased to report that this bill passed both houses of the Legislature. We were involved in the negotiation of the bill and various discussions about local impact. NYSAC is fully supportive of the fact that counties would now be given the option of establishing a differential response program for child protection assessments or investigations.
- S.3175 Volker / A.9250 Scarborough - This bill requires local social services districts to provide crisis intervention services and community-based programming for exploited youth. This bill has only passed the Senate and is not expected to pass in the Assembly. NYSAC spent a significant amount of time negotiating the language of this bill with both houses of the Legislature in order to ensure that the requirements for local districts were acceptable and that counties could adequately serve this population of children. The prime sponsor of the bill, Senator Volker, was extremely mindful of the county perspective and worked extensively with NYSAC to ensure that the bill would help counties deliver these important services to children. In the final hour of the legislative session, however, the Assembly modified a key component of the bill and passed an alternative print, A.5258A, thus ensuring that the “same as” version will not receive final passage.
- S.32018 Montgomery / A.3396 Millman - This bill would require localities to give consideration to education and training for sustainable wage jobs and nontraditional employment opportunities. NYSAC has been engaged with the Legislature and Governor’s office on this issue and have recommended a veto of this legislation.
- S.4549 Kruger - This is an Office of Temporary and Disability Assistance (OTDA) program bill that would allow OTDA access to the wage reporting system (WRS). OTDA would provide counties the information received from accessing the data. NYSAC fully supports this legislation. However, the Assembly disagreed with portions of the OTDA bill and at the eleventh hour, introduced their own, one house version of the bill (see below).
- A.9236 Wright - NYSAC was also supportive of this bill, which would allow access to the WRS. The substantial difference in this legislation (vs. S.4549) is the fact that access to the WRS would be for the sole purpose of drawing down millions in federal IV-E dollars at the local level.
Children with Special Needs
Staff Contact: Jessica Morelli
NYSAC’s highest priority for the 2007 legislative session was the capping of the local share of the pre-school program and we are pleased that this issue was moved forward with the newly created “Temporary Task Force for Pre School Special Education.” This Task Force, set to begin either in late June or early July (tentative first meeting date is June 28), is charged with addressing serious issues within the existing pre-k special education infrastructure, including rate setting. NYSAC is pleased that we were able to achieve specific county representation to the Task Force and are hopeful that this work will lead to substantial reform of the current system burdening counties. Unfortunately, there were two pieces of legislation that did pass both houses and if signed into law, would negatively impact counties. NYSAC will continue to work with the Governor’s office on these bills.
- S.5672-A Saland / A.8337-A Nolan - This bill authorizes the inclusion of a surplus factor in the determination of tuition for special education and special act school districts. It would also allow the commissioner of education to develop a multi-year tuition setting methodology for special education and special act school districts. NYSAC believes that this legislation is unnecessary, given that the 2007-08 Enacted State Budget authorized a Temporary Task Force on Pre-School Special Education and one of the Task Force’s specific charges is to address the rate setting issue.
- S5972 Lanza / A.5396 Nolan - This bill relates to the burden of proof for appeal procedures for children with handicapping conditions. While certainly well-intentioned, the bill raises numerous concerns and was vetoed last year. Concerns include the fact that a Supreme Court decision found that placing the burden of proof on the school districts that developed IEPs would be, in essence, a legal presumption that every IEP created in New York State is invalid or inadequate. Additionally, putting the burden of proof on school districts would result in a substantial increase in the number of administrative and judicial appeals, which would result in increased litigation costs. Finally, federal law does not authorize shifting the burden of proof in IDEA cases.
Economic Development, Environment & Rural Affairs
Staff Contacts: Jeff Osinki & Pete Savage
Energy issues took the spotlight during the last few weeks of session, with the Governor and legislative leaders trying to hammer out a deal on the reauthorization of the Article X power plant siting law. Bills impacting the county role in economic development, environment and agricultural issues were also addressed this session, including:
- S.4455-a Young / A.7232-a Magee - This bill amends the Agricultural and Markets law to allow counties that had previously received funding from the Department of Agriculture & Markets' Farmland Protection Program to apply for additional funding. Under current statute, counties are only eligible for funding once. NYSAC supported this legislation to allow counties to apply every ten years to update their farmland protection plan. This legislation has passed both houses and currently awaits delivery to the Governor.
- S.1126 Little / A.8140 Aubertine - This bill amends the Environmental Conservation law eliminating the requirement that counties repay the State one-half of all expenses incurred for extinguishing forest fires within their jurisdiction. Although the total amount money that county governments have been required to pay in the last decade has been relatively small, counties could have difficulty absorbing high costs if a larger forest fire were to break out. This legislation, supported by NYSAC, has passed both houses and currently awaits delivery to the Governor.
- S.5826-a Wright / A.9254 Tonko - This bill extends the Power for Jobs program, a program allocating low cost power to expanding companies who create jobs, particularly in upstate New York, until June 30, 2008. This program was due to sunset at the end of this month. This legislation has passed both houses and currently awaits delivery to the Governor.
- Industrial Development Agency (IDA) Civic Facilities financing - both houses passed different bills. The Senate adopted S.6333 Rules to extend the authority of local IDAs to finance not-for-profit hospitals, college dormitories and assisted living facilities until June 30 of 2009. The Assembly passed A.9238 Hoyt, which extended that authority until January 31, 2008. This authority to finance not for profit projects through local IDAs expires at the end of this month.
- S.6319 Seward / A.9349 Magee - This legislation amends the Executive Law, correcting language previously signed into law relating to the periodic inspection of all non-residential buildings. The previously passed legislation inadvertently exempted agricultural buildings from the entire fire and building codes. This bill will correct this mistake, exempting agricultural buildings from periodic inspection under the new fire and building codes, which was the sponsor’s original intent. This legislation, supported by NYSAC, passed both houses and currently awaits delivery to the Governor.
General Government
Staff Contact: Pete Savage
Many issues impacting municipal governance were addressed throughout the course of the legislative session. The last week of session saw action on a flurry of bills, including a plan to reform the Wicks Law, protecting public documents from being used in identity theft and a clarification that counties may “piggyback” on other county contracts. Highlights of this activity include the following.
- S.6146-a Rules / A.9204 John - This legislation was an announced agreement between the Governor and legislative leaders to reform the Wicks Law, which requires separate contractors for heating, plumbing, and electrical responsibilities on municipal construction projects larger than $50,000. Under the plan, the thresholds for triggering Wicks Law mandates will be increased to $3 million for New York City, $1.5 million for local governments within Westchester, Nassau and Suffolk Counties and $500,000 the rest of the State. Municipalities will be able to avoid Wicks Law requirements through the use of a Project Labor Agreement. Additionally, any municipality with a population of less than fifty-thousand may use labor from a county-established list of pre-qualified bidders. The proposed Wicks Law reforms will provide a benefit to the municipal subdivisions within a county. However, because of the limited impact that the reforms will have on county budgets and local property taxpayers, NYSAC has given no specific recommendation on the bill. Disagreements between the Governor and Senate lead to the failure of this bill to achieve final passage.
- S.6399 Johnson / A.9295 Lavine - This legislation supports a NYSAC legislative priority by addressing the issue of personal information appearing on public documents recorded in the county clerks office that are then made available on the internet. This bill also seeks to address the case of MERS Corp v. Romaine by amending the civil practice law and rules to allow County Clerks to determine who should appear as proper nominee on a mortgage. Additionally, the legislation will allow counties a two year local option to increase recording fees charged by County Clerks to cover the costs associated with these new requirements. NYSAC, the County Executives Association and the County Clerks Association supported this legislation, but the bill did not receive final passage because of its late timing. NYSAC will continue to work with the Governor’s office and the legislature to address technical concerns, and push for its passage when the legislature returns in July.
- S.5491 Little / A.8976 Hoyt - This legislation amends General Municipal Law by clarifying that counties can make purchases or contract for services through the contracts of any other county in the State. Existing GML language on this issue applies only to political subdivisions that are located "in" a county, and not to counties themselves. This proposal will allow counties to take advantage of this exception to competitive bidding and achieve cost savings for the benefit of local taxpayers. This legislation, supported by NYSAC, passed both houses and currently awaits delivery to the Governor.
- S.3560-b Volker - This legislation sought to amend the Civil Practice Law and Rules to require a municipality issuing an official determination to notify the parties of the judicial review process under Article 78. If a municipality were to not notify the parties properly, the four month Article 78 window would remain open indefinitely. This Office of Court Administration program bill raised the concern of municipal attorneys from across the state who felt that this legislation would jeopardize the finality of local government decisions. NYSAC’s efforts were bolstered by an eleventh hour resolution in opposition passed by the Western Inter-County Association, which stopped this legislation from advancing in either house of the legislature.
Public Employee Relations
Staff Contact: Jeff Osinski
The Governor and the legislative leaders all cite the passage of Workers Compensation Reform (Chapter 6 of the laws of 2007) as one of their major accomplishments this session. There are several elements of this reform package, including the enactment of medical guidelines for determining degree of disability and the establishment of a new rate setting procedure to replace the Workers Compensation rating board, which will need to be enacted before the end of the year. Chapter 6 requires that recommendations on these outstanding issues be provided to the Governor and legislature by September for their action.
Bills mandating additional leave time, changes in long-standing practices in employee relations procedures and the creation of new retirement plans were the main focus of bills passed by both houses affecting public employee relations. Although opposition by NYSAC and other municipal associations was able to forestall many of the major revisions to the Taylor Law that were pushed by public employee unions, adopted and vetoed last session, the legislature did pass several bills, which if signed by the Governor, will bring about significant changes in the way counties manage their workforce. A few of the bills passed included the following.
- S.1617 Maziarz / A.6758 Abbate - The proposed amendment to civil service law will lengthen the allowable term of leave of absence for employees injured in workplace related accidents of one year under existing statute by an additional six months to eighteen months. A public employer would not be able to refill a position except in a temporary capacity for up to 18 months under the terms of this bill.
- S.4357 Maltese / A.6649 Lentol - This bill amends section 75 of the civil service law to prohibit public employers from dismissing a public employee for cause, unless the determination is made by an independent hearing officer. The bill further provides that if a hearing officer cannot be agreed to by the union and the employer, one will be chosen from a list of 7 provided by PERB with each side alternately striking names until a selection is made. Because of deficiencies in the bill’s language, an employee would have the right to appeal the decision under another section of civil service law, but a public employer would not.
- A.6612- d Brodsky / S.5181 Morahan - this bill expands a mandate enacted into law last year, requiring counties to provide 4 hours leave annually for the purposes of breast cancer screening examinations. This bill adds an additional 4 hours leave time for prostate cancer screening exams and mandates that it be provided by all units of local government. Bills requiring additional leave time for cervical cancer screening, donating blood, and colon cancer screening also passed at least one house of the legislature.
The legislature also enacted special retirement plans for E 911 operators, corrections officers and expanded deputy sheriff retirement plans.
Public Safety
Staff Contact: Adriano Bongiorno
Beginning with the Governor’s much-publicized civil confinement initiative, the 2007 legislative session contained a number of proposals affecting the administration of local public safety. NYSAC worked hard to remain at the forefront of these issues, representing county interests and impact. The following are highlights of public safety legislation affecting counties.
- S.3318 Volker / A.6162 Silver - This Governor’s Program Bill passed both houses and was signed into Chapter 7 of the Laws of 2007. This legislation, which was negotiated in private, has severe unintended consequences that place fiscal responsibility of sex offenders on counties. NYSAC is advocating for a Chapter Amendment to the signed law that addresses our concerns. The legislation not only allows individuals under consideration for civil commitment to choose whether they would like to be housed in a county jail during the course of their civil commitment hearing, but also requires counties to cover legal expenses for indigent defendants under consideration for civil commitment. Furthermore, under the provisions of the bill, sex offenders under supervision who have served their sentence of civil commitment, would be placed in county jails if they violate the terms of their post commitment supervision. The commitment of these individuals will range from two to twenty-five years.
- S.4311 Volker / A.9087 Lentol - This legislation sought to loosely amend the current framework for the provision of criminal defense services to the indigent. However, NYSAC was able to point out two important facts: 1.) the bill is duplicative of efforts already under way to restructure public defense services and 2.) Chief Judge Judith S. Kaye has already initiated a comprehensive review and overhaul of our existing system of providing public defense services for the indigent. The bill, therefore, did not pass either house and NYSAC was successful in working with the legislature to ensure that it will be far more beneficial to all involved parties to work with the Office of Court Administration as they begin to draft a comprehensive legislative package addressing Judge Kaye’s concerns.
- S.3445 Bonacic / A.6505 Lentol - This bill establishes that the Division of State Police shall make no rule or regulation limiting the ability of a member of the New York State Police to appear in court to recommend a reduced charge from a violation of the Vehicle and Traffic Law (VTL). This bill would not affect VTL violations relating to the consumption or possession of alcohol or drugs. NYSAC fully supports this legislation and is pleased to report that it was passed by both houses of the Legislature.
- S.6079 Volker / A.8583 Aubry - The passage of this resolution by both houses, which NYSAC fully supports, will lay the groundwork for the New York State Legislature to amend the State Constitution by allowing inmates confined in state and local correctional facilities to perform work for nonprofit organizations voluntarily. Existing State law allows inmates to perform work for state and public institutions but does not allow them to provide labor for nonprofit organizations. Many localities have requested the flexibility to allow inmates to voluntarily perform these services for under-funded nonprofits such as cemeteries, libraries, service organizations and parks, just to name a few.
- S.1616 Maziarz / A.7462 Destito - This legislation seeks to prohibit municipalities from contracting with any private entity for the provision of fire protection, suppression or prevention services. NYSAC opposes this legislation as it would reduce local flexibility and limit a municipality’s ability to conduct day-to-day operations within the local fire services. Localities have noticed considerable reductions in the ranks of the volunteer fire services, and in some instances municipalities have had to contract out for fire protection, suppression, prevention and other vital services provided by private entities. The passage of this legislation would severely limit the options for municipalities who choose to contract out certain fire protection, suppression and prevention services. This legislation has passed both houses of the Legislature.
- S.3584-a Lanza / A.6291-a Bradley - This legislation will enhance the ability of law enforcement officials to locate and apprehend individuals who traffic in stolen recycled metals by requiring sellers to provide government-issued identification to verify their identity. In addition, this legislation will require certain purchasers of recycled metal to retain a copy of all photo identifications for two years. NYSAC supports this legislation and is pleased to report that it has passed both houses of the Legislature.
- S.5137 Seward - This bill provide flexibility in the distribution of the Indigent Legal Services Fund (ILSF). Currently, counties must demonstrate compliance with certain maintenance of effort requirements if they wish to remain eligible for future ILSF disbursements. Specifically, counties must show that there was no decrease in the total amount of local funds expended on indigent legal services. Counties use the ILSF to improve indigent legal services and not to supplant local funds set aside for such services. However, unforeseen circumstances such as a reduction in caseloads or an unanticipated reduction in spending can make it difficult to predict actual future legal services spending. Such a reduction in local spending can render a municipality ineligible for ILSF funding for the following year. NYSAC worked for the restoration of $86,000 to Schoharie County, $77,000 to Seneca County and $291,000 to Wayne County to make up for a loss in their allocation of the Indigent Legal Services Fund (ILSF) in 2007, and this bill was designed to address this problem going forward. This bill has passed the Senate and has been delivered to the Assembly. NYSAC will continue to press for its introduction in the Assembly and see its enactment into law.
Elections
Staff Contact: Adriano Bongiorno
In the increasingly complex world of the Federal Help America Vote Act (HAVA), legislation was introduced during the 2007 legislation to help New York State reach compliance. The Federal Help America Vote Act (HAVA) does not require the replacement of lever voting machines. However, in 2005, the New York State Legislature, in the face of impending Federal deadlines, hastily enacted legislation that abolished the use of lever machines in our State. For decades, these lever voting machines have facilitated fair and accurate elections in New York State. In fact, they continue to do so, as no electronic voting machines in New York State have met the criteria for certification and it is unlikely that they will in the immediate future.
During the 2007 legislative session, both the Assembly and Senate each drafted their own bills on this issue. Agreement on joint legislation was not reached before the end of the legislative session; each house passed their own bills. NYSAC supports the Senate bill on this important issue. The following is an outline of the two bills.
- S.6337 Rules - This legislation would amend various sections of law to allow counties to continue using our reliable lever voting machines. The bill would, however, require each county to provide at least one location with one or more voting machines that are equipped for individuals with disabilities Furthermore, several counties have brought lawsuits, citing the under-funded mandate the replacement of these machines will pose on county budgets. NYSAC will continue to press for introduction in the Assembly and offer our support for the passage of this legislation.
- A.9264 Carozza - This legislation would attempt to impose yet another arbitrary deadline in regard to the State implementation of the Help America Vote Act (HAVA). New York State has repeatedly missed deadlines associated with the timely implementation of this Federal mandate and has reached an agreement with the Department of Justice (DOJ) to properly implement HAVA as quickly as practicable. NYSAC, DOJ and the New York State Board of Elections all contend that it makes far more sense to implement a well thought out program that takes into account the needs and abilities of all voters, candidates and the counties who must run these elections as opposed to rushing to meet a deadline. This bill has passed in the Assembly and delivered to the Senate. NYSAC will continue to oppose this legislation.
