NY Pub Auth L § 3959 (2021)
2021 New York Laws PBA - Public Authorities Article 10-D - Miscellaneous Authorities Title 3 - Erie County Fiscal Stability Authority 3959 - Control Period.

§ 3959. Control period. 1. The authority shall impose a control period 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 adopt a balanced budget within time frames prescribed in the county charter, financial plan or budget  modification as  required  by  sections thirty-nine hundred fifty-six and thirty-nine hundred fifty-seven of this title; (b) the county shall have  failed  to pay  the principal of or interest on any of its bonds or notes when due; (c) the county shall have incurred a major operating  funds  deficit  of one percent or more in the aggregate results of operations of such funds of  the  county  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; (d) the comptroller's certification at any time, at the request of the authority or on the comptroller'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  the comptroller  could not make the certification described in paragraph (b) of subdivision one of section  thirty-nine  hundred  fifty-one  of  this title;  or  (e)  the  county  shall  have violated any provision 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 comptroller hereunder  shall  be  based  on  the  comptroller's  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) December thirty-first, two thousand thirty-nine, 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, the authority:  (a) shall approve or disapprove the financial plan and  the  financial plan  modifications  of  the  county, as provided in section thirty-nine hundred fifty-seven of this title, and shall formulate and adopt its own modifications to the financial plan, as  necessary;  such  modifications shall become effective upon their adoption by the authority;  (b) may set a maximum level of spending for any proposed budget of any covered organization;  (c)  may  impose  a  wage  and/or  hiring freeze: (i) During a control period, upon a finding by the authority that a wage and/or hiring 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 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 or wage increases as of any date thereafter are  suspended.  Such order  may  also  provide  that  all  increased payments for holiday and vacation  differentials,   shift   differentials,   salary   adjustments according to plan and step-ups or increments 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. For the purposes of computing the pension base of  retirement allowances,  any  suspended  salary  or  wage  increases  and  any other suspended payments shall not be considered as part  of  compensation  or final compensation or of annual salary earned or earnable;  (ii)  Notwithstanding  the  provisions  of  subparagraph  (i)  of this paragraph, this subdivision shall not be applicable to employees of  the county  or  employees  of a covered organization subject to a collective bargaining  agreement  or  an  employee  of  the  county  or  a  covered organization  not subject to 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 deferral 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;  (iii) Notwithstanding the provisions of subparagraphs (i) and (ii)  of this  paragraph, no retroactive pay adjustments of any kind shall accrue or be deemed to accrue during the period of wage  freeze,  and  no  such additional amounts shall be paid at the time a wage freeze is lifted, or at any time thereafter;  (d)  shall  periodically  evaluate  the  suspension  of salary or wage increases or suspensions of other increased payments  or  benefits,  and may,  if  it  finds  that the fiscal crisis, in the sole judgment of the authority has abated, terminate such suspensions;  (e) shall review and approve or disapprove any  collective  bargaining agreement  to be entered into by the county or any covered organization, or purporting to bind, the county or any covered organization. Prior  to entering  into  any  collective  bargaining agreement, the county or any covered organization shall submit a copy of such  collective  bargaining agreement  to the authority, accompanied by an analysis of the projected costs of such agreement  and  a  certification  that  execution  of  the agreement will be in accordance with the financial plan. Such submission shall  be  in  such  form and include such additional information as the authority may prescribe. The authority shall promptly review  the  terms of  such  collective bargaining agreement and the supporting information in order to determine compliance with  the  financial  plan,  and  shall disapprove  any  collective bargaining agreement which, in its judgment, would be inconsistent with the financial plan. No collective  bargaining agreement  binding,  or  purporting  to  bind, the county or any covered organization after the effective date of this title shall be  valid  and binding  upon  the  county  or  any  covered  organization  unless first approved by resolution of the authority;  (f) shall act jointly with the county  in  selecting  members  of  any interest arbitration panel. Notwithstanding any other evidence presented by  the  county,  the  covered  organization  or any recognized employee organization, the arbitration panel must, prior  to  issuing  any  final decision, provide the authority with the opportunity to present evidence regarding the fiscal condition of the county;  (g)  shall  take  any  action  necessary  in  order  to  implement the financial plan should the county or any covered organization have failed to comply with any  material  action  necessary  to  fulfill  the  plan,  provided,  however, the authority shall provide seven days notice of its determination that the  county  or  any  covered  organization  has  not complied prior to taking any such action;  (h)   may   review  and  approve  or  disapprove  contracts  or  other obligations binding or purporting to bind  the  county  or  any  covered organization;  (i)  shall,  with respect to any proposed borrowing by or on behalf of the county or any covered organization  on  or  after  July  first,  two thousand five, review the terms of and comment, within thirty days after notification  by  the  county  or  covered  organization  of  a proposed borrowing, on the prudence of each proposed issuance of bonds  or  notes to be issued by the county or covered organization and no such borrowing shall  be made unless first reviewed, commented upon and approved by the authority.  The  authority  shall  comment  within  thirty  days   after notification  by  the  county  or  covered  organization  of  a proposed borrowing to the county executive, the comptroller, the legislature, the director of the budget, the chair of the state senate finance committee, the chair of the state assembly ways and means committee and  the  state comptroller  and  indicate  approval  or  disapproval  of  the  proposed borrowing. Notwithstanding the foregoing, neither  the  county  nor  any covered  organization shall be prohibited from issuing bonds or notes to pay  outstanding  bonds  or  notes;  and,  provided   further,   revenue anticipation  notes  issued in July two thousand five, shall be excluded from this requirement;  (j) may review the operation, management, efficiency and  productivity of  the  county  and  any  covered  organizations  as  the authority may determine, and make reports thereon; examine the  potential  to  enhance the  revenue of the county or any covered organization; audit compliance with the financial plan in such areas as the  authority  may  determine; recommend  to  the  county  and  the covered organizations such measures relating to their operations, management, efficiency and productivity as the authority deems appropriate to reduce costs,  enhance  revenue,  and improve services so as to advance the purposes of this title;  (k)  may  review  and  approve or disapprove the terms of any proposed settlement of claims against the county or any covered  organization  in excess of fifty thousand dollars;  (l)  may  obtain  from  the  county,  the  covered  organizations, the comptroller, and the state comptroller, as appropriate, all  information required  pursuant  to this section, and such other 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 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;  (m)  may  perform such audits and reviews of the county and any agency thereof and any covered organizations as it deems necessary; and  (n) may issue, from time to time and to the extent it deems  necessary or  desirable  in order to accomplish the purposes of this title, to the appropriate official of the county and each covered  organization,  such orders  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 three of this section.   3. (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 approved 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 employee 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  of  a  covered organization,  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.