The County Perspective for May 30, 2017
911 Surcharge update, keeping an eye on NYS legislation that will impact counties, local impact of proposed Federal budget and ACHA analysis, training and funding opportunities for county officials.
Save the Date: NYSAC Fall Seminar in Syracuse
The 2017 NYSAC Fall Seminar will be held from September 13-15 at the Marriott Syracuse Downtown in Onondaga County. The agenda and registration information will be sent out later this summer.
Reminder and Clarification: Counties Must Pass a Resolution to Begin or Continue Collecting 911 Surcharge Fees
As reported previously, new state law allows New York City and all counties the authority to charge the $.30 local public safety surcharge on ALL prepaid and postpaid devices
. Current law only allows surcharge collection on postpaid devices. All counties must act, even those seeking to continue collecting a surcharge, through their local legislative body to adopt a local law, ordinance or resolution. These can be effective for purchases made beginning December 1, 2017 if the locality passes a local law or resolution and provides appropriate notice to Taxation and Finance of a change in the local sales tax law
County Attorneys' Association of the State of New York (CAASNY) Convened Annual Conference
On May 22-23, County Attorneys from counties throughout the state met in Otsego County for training and education programs. This conference also provided opportunity for county legal experts to share best practices and solutions to issues impacting county government. Workshops and speakers included government ethics training provided by Andrew Ayers, the Director of Albany Law School's Government Law Center. NYSAC participated in a round table presentation of hot topics in our counties, including updates on county-filed pharmaceutical lawsuits as well as local impacts of Raising the Criminal Age and Indigent Defense State legislation. At the conference, Stephen M. Dorsey, Saratoga County Attorney, was appointed to lead the association as the new CAASNY President.
Adirondack Inter-County Meets at Wild Center
Last week, NYSAC joined members of the Adirondack Inter-County Council for their monthly meeting, held this month in Franklin County. County officials toured the Wild Center and new Wild Walk—an elevated trail across the Adirondack treetops. The Center provides ways for visitors to connect with nature through outdoor experiences and a 54,000-square-foot museum with live animals and hands-on activities and installments.
David Wolff, a Franklin County broadband consultant, presented information on the North County's viability for broadband funding for Phase 3 of the New NY Broadband Program. Using the information provided from providers and the census data, Wolff has identified specific areas of need that carried potential to assist local North Country communities in working together on applications for Phase 3 broadband funding. In addition, Chad McCarthy, Program Lead for Older Adults Technology Services (OATS) discussed the OATS approach, which begins with thousands of hours working face-to-face with diverse groups of older adults in community settings. OATS partners with government agencies, community-based organizations, national advocacy groups, and major corporations to engineer solutions that put technology in the hands of older adults to achieve meaningful outcomes.
Madison County Recognized at PERMA Annual Meeting
NYSAC recognized Madison County last week for their efforts to improve worker safety and risk management. Madison County earned NYSAC's Pioneer Award at the Annual Meeting of the Public Employer Risk Management Association (PERMA).
“We take great pride in our members' commitment to professionalism, safety, and risk management,” said NYSAC President William E. Cherry, the Schoharie County Management Association (PERMA), which provides workers' compensation insurances for hundreds of local governments in New York State. Treasurer. “NYSAC chose Madison County as this year's Pioneer because they exemplify these qualities.” Madison County has a longstanding success with risk management, with a loss ratio of under 30% and an experience factor of under 0.9. This past year, the county initiated annual safety training and physical hazard audits for the 42 member municipalities in their workers' compensation program.
PERMA is committed to helping municipalities improve worker safety, so that employees can return to work or avoid being injured in the first instance. Its workers' compensation and risk management programs recognize the impact that worker injuries can have on local governments, families, and local taxpayers.
The NYS Legislature is on vacation this week. When they return to Albany on Monday, June 5 there will only be 11 days left of the legislation session. It is expected that mayoral control, procurement reform, environmental issues and the expansion for the number of charter schools will be addressed in the final weeks of session. During the past week NYSAC weighed in on the following pieces of legislation:
NYSAC Supports S519 Young/A751 Gunther, payment of salaries for certain district attorneys. The State law has created a uniform District Attorney (DA) salary raise and yet the state allocates no funding to counties for this mandated cost increase. On April 1, 2016 the State Legislature approved the salary raises recommended by the New York State Commission on Legislative, Judicial, and Executive Compensation. This approval increased all state judge salaries in 2016, 2017, and 2018.
For over 50 years, since the state first required a raise in salaries for District Attorneys (who are county officials), the state has funded the increased costs. To not make counties whole on these costs is not only unprecedented, it breaches a fundamental issue of fairness. The raise equals $30,000 in funds annually, which is approximately 1/3 of some counties' total allowable property tax cap growth for all government operations
NYSAC supports S2125 Ritchie/A6930 Abinanti, prohibiting civilian drone use within 1000 feet of a correctional facility. This legislation amends the correction law by adding a new section prohibiting drone use within 1000 feet of a correctional facility or a local correctional facility in this state. This legislation also defines the term drone and provides a $1,000 penalty for violating this law.
The use of drones or unmanned aerial systems, including recreational civilian drone use, has increased exponentially in recent years. With the increased use of drones, it has been reported that drones have been dropping packages containing marijuana, heroin, and other contraband items into recreational areas of correctional facilities across the country. Contraband items in prison and jails have been known to contribute to violence, endangering the safety and wellbeing of both inmates and correctional staff. By restricting drone use in the immediate vicinity of a correctional facility this legislation promotes a safer and more harmonious prison environment by keeping all members of the correctional community safe.
Public Group Self-insurer
NYSAC supports S5873 DeFrancisco/A679A Magnarelli, participation in a public group self-insurer. This legislation would authorize county workers' compensation pools to join a public group self-insurance program to lower costs and better manage public employee risks. These public group self-insurance programs would be regulated by the Workers' Compensation Board, and include safeguards for employees and taxpayers.
Workers compensation insurance is a significant cost to local governments and property taxpayers. Authorizing county pools to join public group self-insured programs have proven to reduce workers' compensation costs and improve risk and claims management for public entities. the proposal would allow county pools to reduce costs through deductible options that are common in other states. Public self-insurance programs have robust safety and risk management programs designed specifically for local government employees and the risks they face.
Transportation Funding in This Year's State Budget
Counties have been calling for increased investment in local roads and bridges for several years. The Great Recession, state funding cuts, slow sales tax growth and the property tax cap have conspired against needed investments in local roads and bridges.
The 2016-17 State Budget provided a significant and recurring increase in funding for local roads and bridges through the creation of two new programs, PAVE-NY ($100 million) and BRIDGE-NY ($100 million). These new funding streams were in addition to the existing CHIPs and Marchiselli programs.
For SFY 2017-18, the full funding of all local government assistance road programs was continued, plus an additional one-time appropriation of $65 million was included to address harsh winter conditions to be apportioned using the CHIPs formula.
For 2017-18 state funding for local roads and bridges is as follows:
- $438.1 million in base CHIPS aid is maintained.
- $65 million in one-time “Extreme Winter Recovery” repair funding.
- $100 million for the PAVE-NY program for local road projects.
- $100 million for the BRIDGE-NY program for local bridge projects. This program does not use the CHIPS formula to allocate funding, but envisions input from county and other local officials on priority bridge and culvert projects in their communities.
- $50 million addition to BRIDGE-NY for SFY 2017-18 & 2018-19 combined that includes $20 million for culverts, and DOT has agreed to lower the minimum award for culverts from $100,000 to $50,000.
In total, when including the $65 million in one-time funding in this year's budget, total state funding support will be $703 million, representing a 44 percent increase in state funding over the 2015-16 level of $488 million.
State Senate and Assembly Convene Panel to Discuss Soil Health
On Tuesday, State Senator Tom O'Mara, chairman of the Senate Environmental Conservation Committee, and Assemblyman Steve Englebright, chairman of the Assembly Environmental Conservation Committee, hosted a roundtable to discuss soil health and resiliency. Entitled “From the Ground Up: Why Soil Health is Key to Sustainable Food Production,” the discussion featured experts in soil health and resiliency from Cornell University's College of Agriculture and Life Sciences (CALS), state soil and water conservation district representatives from across New York, and other agriculture and conservation educators and researchers.
This year's NYS budget included $400,000 from the Environmental Protection Fund for a “Soil Health Initiative” at Cornell, which will facilitate ongoing soil-related research and lead to the establishment of a Soil Health Management Network. Soil health and resiliency are chiefly important to New York State's agriculture industry. Dr. David Wolfe, Professor of Plant and Soil Ecology at Cornell CALS, commented, "Everyone appreciates an abundant and healthy food supply, and that requires maintaining healthy and resilient soils. This support from the state will help us link cutting-edge soil health research with on-farm innovations to meet today's food production and environmental challenges.”
Court of Appeals Further Defines when Immunity and Special Duty Defenses Apply for Municipalities involved in Traffic Accident Suits
On December 22, 2016 the New York Court of Appeals ruled in the case Turturro v City of New York,
further defining when a municipality may use the immunity defense as well as when a Municipal “special duty” is owed to the public. Previous caselaw has established that when a municipality is acting in a governmental capacity, the plaintiff must prove the existence of a special duty (see Applewhite, 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131
). Even if a plaintiff satisfies that burden, a municipality acting in a discretionary governmental capacity may rely on the “governmental function immunity defense” (Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587, 960 N.E.2d 356 
). That defense provides immunity for the exercise of discretionary authority during the performance of a governmental function (see id. at 75–77, 936 N.Y.S.2d 587, 960 N.E.2d 356
; McLean v. City of New York, 12 N.Y.3d 194, 202–203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 
In this matter, the plaintiff was struck by a speeding car while riding his bicycle on a street in Brooklyn. The police report says the car was traveling at least 54 miles per hour in a 30 mile-per-hour zone. The following personal injury action alleged the City had received complaints about vehicles speeding on the street prior to the accident and that it was negligent in failing to address the problem. At the trial, evidence showed that the city did receive numerous complaints of speeding and about a lack of traffic lights at certain intersections. The evidence also showed the City did conduct several studies regarding any possible need for traffic signals at specific intersections. The jury found the city 40 percent at fault for the accident, awarding $3 million for past pain and suffering, $7 million for future pain and suffering, $7 million for future medical expenses and $3 million for lost earnings. The lower courts denied the city's motion to set aside the verdict because it was entitled to qualified immunity, and that the plaintiff failed to establish that the city owed him a special duty. The denial of both motions were appealed to NY's high court.
The Court of Appeals ruled with the original jury award. Under this fact pattern, the court stated restricting driver's speed is an act that is within a city's proprietary capacity, beyond a government capacity, and therefore the plaintiff was not required to establish special duty in this or similar cases. Additionally, the court held that “governmental function immunity defense” is only available when a municipality was acting in a governmental capacity but has no applicability where the municipality has acted in a proprietary capacity. The Court stated they do not suggest a municipality has a proprietary duty to keep its roadways free from all unlawful or reckless driving behavior but when a municipality is made aware through repeated complaints of ongoing speeding they have an obligation to implement roadway design changes in the form of traffic calming measures to deter speeding.
Highlights of the President's FFY 2017-18 Budget Proposal
The President released the details of his 2018 budget last week and it remains consistent with his earlier budget summary a couple of months ago. The budget prioritizes increases in defense spending, homeland security and across the board tax cuts. The budget also proposes to generate federal budget surpluses by 2027. Under the proposal, budget authority for all discretionary programs:
- Defense grows from $646 billion in 2017 to $737 billion by 2027, +14%
- Non-defense decreases from $536 billion in 2017 to $378 billion by 2027, -29%
To offset the proposed increases in spending and lower revenues due to tax cuts, the budget proposes significant funding reductions for discretionary programs and some mandatory (entitlement) programs as well. Nearly every major federal program outside of defense, homeland security and veterans' services is scheduled for funding cuts, or elimination, over the next decade.
According to supplemental data provided as part of the budget release, New York State would lose $4.6 billion in federal funding in the 2018 federal budget, a 7.3 percent reduction. This is aggregate funding and could be related to payments to the state, local governments and individuals.
CBO Score of American Health Care Act Passed by House is Released
Late last week the Congressional Budget Office released its official score of the House passed ACA (Obamacare) repeal and replace bill, HR 1628. The final score did not change much from the previous version in relation to the estimated fiscal savings for the federal government or the number of people that are projected to lose their health insurance because of changes in the law. In the House-passed version, CBO projects that the federal deficit will be reduced by $119 billion over 10 years and that 23 million people are likely to lose health insurance coverage (more than half of the health insurance coverage loss occurs in the first two years). The savings largely come from cutting Medicaid by more than $800 billion and eliminating federal health insurance premium subsidies. This is offset by lower revenues from tax cuts and spending for tax credits and grants to help states develop high risk insurance pools and the buy-down of premium costs.
Training and Grant Opportunities
Creating Pathways for Low Income New Yorkers: The Intersecton of TANF and the Workforce System
In advance of Temporary Assistance for Needy Families (TANF) reauthorization, New Yorkers need to ask ourselves, what is working? Where are there roadblocks? What would the ideal piece of legislation include to increase education and training outcomes for low income New Yorkers? This event, hosted by the NY Association of Training Employment Professionals (NYATEP) will examine the intersection of the TANF and workforce systems.
The event will be held on June 7, 2017 from 8:30 AM - 12:30 PM in New York City. Register here: http://www.nyatep.org/event
Water Infrastructure Improvement Act (WIIA) and the Intermunicipal Grant Program (IMG) Webinar
The Environmental Facilities Corporation is hosting a webinar on Thursday, June 1 at 2:00pm. The webinar will explain the Water Infrastructure Improvement Act (WIIA) and the Intermunicipal Grant Program (IMG).
Water Infrastructure Improvement Act (WIIA)
The Clean Water Infrastructure Act of 2017 invests at least $1 billion in clean and drinking water infrastructure projects and water quality protection across New York. $225 million will be made available this year, with one half allocated for drinking water projects, and the other half allocated for wastewater infrastructure projects. Under this program EFC provides grants to assist municipalities in funding water quality infrastructure projects for the replacement or repair of infrastructure or for compliance with relevant environmental and public health laws. Awardees will receive grants of either 25 percent of eligible project costs or $5 million, whichever is less, for wastewater infrastructure projects. Drinking water project awardees will receive 60 percent of eligible project costs or $3 million, whichever is less.
Intermunicipal Grant Program
The Clean Water Infrastructure Act of 2017 provides at least $150 million to fund the new IMG, with $30 million available in 2017. Under this program, EFC will provide grants for water quality infrastructure projects to be undertaken by two or more cooperating municipalities. IMG funding will be awarded to projects for the construction, replacement or repair of water quality infrastructure or for compliance with environmental and public health laws. Projects may include shared water quality infrastructure or interconnection of multiple municipal water systems. To be eligible, cooperating municipalities must have a current, executed Intermunicipal Agreement pertaining to the project to be funded. Successful applicants will receive 40% of eligible project costs or $10 million, whichever is less.