NY Pub Auth L § 3669 (2021)
2021 New York Laws PBA - Public Authorities Article 10-D - Miscellaneous Authorities Title 1 - Nassau County Interim Finance Authority 3669 - Control Period.

§ 3669. Control period. 1. The authority shall impose a control period upon  its determination at any time that any of the following events has occurred or that there is a substantial likelihood and imminence of such occurrence: (a) the county shall have failed to pay the principal of  or interest  on  any  of  its  bonds  or notes when due or payable, (b) the county shall have incurred  a  major  operating  funds  deficit  of  one percent  or  more  in  the aggregate results of operations of such funds during its fiscal  year  assuming  all  revenues  and  expenditures  are reported  in  accordance  with generally accepted accounting principles, subject to the provisions of this  title,  (c)  the  county  shall  have otherwise  violated  any  provision  of  this  title  and such violation substantially impairs the marketability of the county's bonds or  notes, (d) the chief fiscal officer's certification at any time, at the request of  the  authority  or  on  the chief fiscal officer's initiative, which certification  shall  be  made  from  time  to  time  as   promptly   as circumstances  warrant  and reported to the authority, that on the basis of facts  existing  at  such  time  such  officer  could  not  make  the certification  described  by  paragraph  (b)  of this subdivision in the definition of interim  finance  period  in  section  thirty-six  hundred fifty-one of this title, or (e) the authority makes the finding required under  paragraph  (g)  of  subdivision two of section thirty-six hundred sixty-seven of this  title.  The  authority  shall  terminate  any  such control  period  when  it  determines  that none of the conditions which would permit the authority to  impose  a  control  period  exist.  After termination  of  a  control period the authority shall annually consider paragraphs (a) through (e) of this subdivision and determine whether, in its judgment, any of  the  events  described  in  such  paragraphs  have occurred  and  the  authority shall publish each such determination. Any certification made by the chief fiscal officer hereunder shall be  based on  such officers' written determination which shall take into account a report and  opinion  of  an  independent  expert  in  the  marketing  of municipal  securities selected by the authority, and the opinion of such expert and any other information taken into account shall be made public when delivered  to  the  authority.  Notwithstanding  any  part  of  the foregoing to the contrary, in no event shall any control period continue beyond  the later of (i) January first, two thousand thirty, or (ii) the date when all  bonds  of  the  authority  are  refunded,  discharged  or otherwise defeased.   2.  In  carrying  out  the  purposes  of this title during any control period:  (a) The authority shall (i) consult with the county  and  the  covered organizations  in  the preparation of the financial plan, and certify to the county the revenue estimates approved therein,  (ii)  prescribe  the form  of  the  financial plan and the supporting information required in connection therewith, (iii) exercise the rights of approval, disapproval and modification with respect to the financial plan, including  but  not limited  to  the  revenue  estimates  contained therein, and (iv) in the event  the  authority  has  made  the  finding  required  under  section thirty-six  hundred  sixty-seven  of this title, formulate and adopt its modifications to  the  financial  plan,  such  modifications  to  become effective on their adoption by the authority.  (b)  The authority shall, from time to time and to the extent it deems necessary or desirable in order  to  accomplish  the  purposes  of  this title,   (i)   review   the   operations,   management,  efficiency  and productivity of such county operations and of such covered organizations or portions thereof as the authority may  determine,  and  make  reports thereon;  (ii) audit compliance with the financial plan in such areas as the authority may determine; (iii)  recommend  to  the  county  and  the  covered  organizations  such  measures  relating  to  their  operations, management, efficiency and  productivity  as  it  deems  appropriate  to reduce  costs and improve services so as to advance the purposes of this title;  and (iv) obtain information on the financial condition and needs of the county  and  the  covered  organizations.  Nothing  herein  shall diminish  the  powers of the state comptroller otherwise provided by law and the authority may request the assistance of the state comptroller in the performance of the above functions.  (c) The authority shall (i) receive from the county  and  the  covered organizations and from the state comptroller, and review, such financial statements   and   projections,  budgetary  data  and  information,  and management reports and materials as the  authority  deems  necessary  or desirable  to  accomplish  the purposes of this title, and (ii) inspect, copy and audit such books and records of  the  county  and  the  covered organizations   as   the  authority  deems  necessary  or  desirable  to accomplish the purposes of this title.  (d)  All  contracts  entered  into  by  the  county  or  any   covered organization  during  any  control  period  must  be consistent with the provisions of this title and must comply with the  requirements  of  the financial  plan  as  approved  by  the  authority.  With  respect to all contracts or other obligations to be entered into by the county  or  any covered  organization during any control period requiring the payment of funds  or  the  incurring  of  costs  by  the  county  or  any   covered organizations:  (i)  Within twenty days from the commencement of a control period, the county executive shall present  to  the  authority  proposed  guidelines respecting  the  categories and types of contracts and other obligations required to be reviewed by the authority pursuant to  this  subdivision. Any  such  guidelines  may  provide a different standard for review with respect to contracts of any covered organization as the authority  shall determine. Within thirty days from the commencement of a control period, the  authority  shall  approve  or  modify  and  approve  such  proposed guidelines or promulgate  its  own  in  the  event  that  such  proposed guidelines  are  not  submitted to it within the twenty days as provided for herein. Such guidelines may thereafter be modified by the  authority from  time  to  time  on not less than thirty days' notice to the county executive and the  county  executive  may  from  time  to  time  propose modifications to the authority. Unless expressly disapproved or modified by  the  authority  within  thirty  days  (or  such additional time, not exceeding thirty days, as the authority shall have notified  the  county or  covered  organization  that  it  requires to complete its review and analysis) from the date of submission by the county executive, any  such proposed  guidelines  or  modifications  shall be deemed approved by the authority;  (ii) Prior to entering into any contract or other  obligation  subject to  review  of  the  authority  under  its guidelines, the county or any covered organization shall submit a  copy  of  such  contract  or  other obligation  to the authority accompanied by an analysis of the projected costs of such  contract  or  other  obligation  and  certification  that performance  thereof  will be in accordance with the financial plan, all in such form and with such additional information as the  authority  may prescribe.  The  authority  shall  promptly  review  the  terms  of such contract or other obligation and the supporting information in order  to determine compliance with the financial plan;  (iii)  The authority shall, by order, disapprove any contract or other obligation  reviewed  by  it  only  after  adoption  of   a   resolution determining  that,  in its judgment, the performance of such contract or other obligation would be inconsistent with the financial plan, and upon  such order the county or covered organization shall not enter into  such contract or other obligation; and  (iv)  If  the  authority  approves the terms of a reviewed contract or other obligation, the county or covered organization may enter into such contract or other obligation upon the terms submitted to the  authority. Failure  of  the  authority to notify the county or covered organization within thirty days (or such additional time, not exceeding thirty  days, as  the authority shall have notified the county or covered organization that it requires to complete its review and analysis)  after  submission to  it  of  a  contract  or other obligation that such contract or other obligation has been disapproved shall be deemed to constitute  authority approval thereof.  (e)  The  authority  shall review the terms of each proposed long-term and short-term borrowing by the county and any covered  organization  to be  effected  during  any control period, and no such borrowing shall be made during any control period unless it is approved by  the  authority. Neither the county nor any covered organization shall be prohibited from issuing bonds or notes to pay outstanding bonds or notes.  (f)  The  authority  shall  issue,  to the appropriate official of the county and each covered organization, such orders as it deems  necessary to accomplish the purposes of this title, including, but not limited to, timely  and  satisfactory  implementation of an approved financial plan. Any order so issued shall be binding upon the official to  whom  it  was issued  and failure to comply with such order shall subject the official to the penalties described in subdivision four of this section.  (g) The authority is authorized to and shall withhold any transitional state aid and not pay such moneys  to  the  county  during  any  control period.   3.  Authorization for wage freeze. (a) During a control period, upon a finding by the authority that a wage freeze is essential to the adoption or maintenance of a county  budget  or  a  financial  plan  that  is  in compliance  with  this  title,  the  authority,  after  enactment  of  a resolution so finding, may declare a fiscal crisis. Upon making  such  a declaration,  the  authority  shall  be  empowered  to  order  that  all increases in salary or wages of employees of the county and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements, other analogous  contracts or  interest  arbitration  awards, now in existence or hereafter entered into, requiring such salary increases as  of  any  date  thereafter  are suspended.  Such  order may also provide that all increased payments for holiday  and  vacation  differentials,  and  shift   differentials   for employees  of  the  county  and employees of covered organizations which will take effect after the date of  the  order  pursuant  to  collective bargaining agreements, other analogous contracts or interest arbitration awards  requiring such increased payments as of any date thereafter are, in the same manner, suspended. Such order  may  also  provide  that  all increased payments for salary adjustments according to plan and step-ups or  increments  be  suspended;  provided,  however,  when (i) the county executive provides a four year financial plan  approved  by  the  county legislature  pursuant  to  paragraph  (a)  of subdivision two of section thirty-six  hundred  sixty-seven  of  this  title  and   the   authority determines,  pursuant  to  paragraph  (b) of such subdivision, that such financial plan is complete and complies with the standards set forth  in such  subdivision,  and  (ii) the authority makes a certification to the county setting forth revenue estimates agreed to  by  the  authority  in accordance  with such determination, the salary adjustments according to plan and step-ups or increments, not including cost of living increases, shall not be suspended for each year in which the  four  year  financial  plan   has   been  certified.  This  inability  to  suspend  the  salary adjustments according to  plan  and  step-ups  or  increments  shall  be applicable  to  county employees and employees of covered organizations, whether  or not they are covered by a collectively negotiated agreement, if an individual employee or members of an  employee's  bargaining  unit previously  participated  in  a wage freeze implemented by the authority under this section and such wage freeze was subsequently lifted  by  the authority  by the issuance of a resolution, pursuant to paragraph (b) or (c) of this subdivision, certifying that the suspension  of  their  wage increases or an agreement by the collective bargaining representative or by  such  unrepresented  employee  was  an  acceptable  and  appropriate contribution  toward  alleviating  the  fiscal  crisis  of  the  county. Irrespective  of  the  duration  of  any  approved or accepted four-year financial plan, for employees who are members of a bargaining unit, this inability to  suspend  the  salary  adjustment  according  to  plan  and step-ups  or  increments  shall  take effect October first, two thousand sixteen and shall be in effect for employees for  the  duration  of  the next   collective   bargaining   agreement  succeeding  either  (i)  the collective  bargaining  agreement  in  effect  on  November  sixth,  two thousand   eighteen   or  (ii)  the  most  recently  expired  collective bargaining agreement prior to November  sixth,  two  thousand  eighteen; whichever  is later. If the succeeding collective bargaining agreement's duration is modified, extended, or renewed, this modification, extension or renewal does not modify, extend or renew the term of the inability to suspend salary adjustments according to plan and step-ups or increments. For employees who are not members of a bargaining unit,  this  inability to  suspend  the  salary  adjustment  according  to plan and step-ups or increments shall  be  effective  October  first,  two  thousand  sixteen through  December  first,  two  thousand twenty-one. For the purposes of computing the pension  base  of  retirement  allowances,  any  suspended salary  or  wage increases and any suspended other payments shall not be considered as part of compensation or final compensation  or  of  annual salary  earned  or  earnable. The suspensions authorized hereunder shall continue until one year after the date of the order and, to  the  extent of  any  determination  of  the  authority  that  a continuation of such suspensions, to a date specified by the authority, is necessary in order to achieve the objectives of the financial plan, such suspensions  shall be continued to the date specified by the authority, which date shall in no  event  be later than the end of the interim finance period, provided that such suspensions shall terminate with respect to employees who have agreed to a deferral of salary or wage increase upon  the  certification of  the  agreement  by  the  authority pursuant to paragraph (b) of this subdivision.  (b) This subdivision shall not  be  applicable  to  employees  of  the county  or  employees  of a covered organization covered by a collective bargaining  agreement  or  an  employee  of  the  county  or  a  covered organization  not covered by a collective bargaining agreement where the collective bargaining representative or such unrepresented employee  has agreed  to  a  deferment of salary or wage increase, by an instrument in writing which has been certified by the authority as being an acceptable and appropriate contribution toward alleviating the fiscal crisis of the county. Any such agreement to a deferment of salary or wage increase may provide  that  for  the  purposes  of  computing  the  pension  base  of retirement  allowances,  any  deferred  salary  or  wage increase may be considered as part of compensation or final compensation  or  of  annual salary earned or earnable.  (c)  The  authority  may,  if it finds that the fiscal crisis has been sufficiently alleviated or for any other appropriate reason, direct that  the suspensions of salary or wage  increases  or  suspensions  of  other increased   payments  or  benefits  shall,  in  whole  or  in  part,  be terminated.   4.  Prohibition;  penalties.  (a)  During  any  control  period (i) no officer or employee of the county or of any of the covered organizations shall make or authorize an obligation or other liability  in  excess  of the  amount  available  therefor  under  the  financial  plan as then in effect; (ii) no officer or employee of the  county  or  of  any  of  the covered  organizations  shall  involve  the county or any of the covered organizations in any contract or other obligation or liability  for  the payment  of  money  for  any  purpose  required  to  be  approved by the authority unless such contract has been  so  approved  and  unless  such contract  or obligation or liability is in compliance with the financial plan as then in effect.  (b) No officer or employee  of  the  county  or  any  of  the  covered organizations  shall  take any action in violation of any valid order of the authority or shall fail or refuse to take any action required by any such  order  or  shall  prepare,  present  or  certify  any  information (including  any  projections or estimates) or report to the authority or any of its agents that is false or misleading, or,  upon  learning  that any  such  information  is  false  or misleading, shall fail promptly to advise the authority or its agents thereof.  (c) In addition to any penalty or liability under any other  law,  any officer  or  employees of the county or any of the covered organizations who shall violate paragraph (a) or (b)  of  this  subdivision  shall  be subject   to  appropriate  administrative  discipline,  including,  when circumstances warrant, suspension from duty without pay or removal  from office  by order of either the governor or the county executive; and any officer or employees of the county or any of the  covered  organizations who  shall  knowingly and willfully violate paragraph (a) or (b) of this subdivision shall, upon conviction, be guilty of a misdemeanor.  (d) In the case of a  violation  of  paragraph  (a)  or  (b)  of  this subdivision  by  an  officer  or  employee  of  the county or any of the covered organizations, the  county  executive  or  the  chief  executive officer  of  such  covered  organization shall immediately report to the authority all pertinent facts together with a statement  of  the  action taken thereon.