NY Pub Auth L § 3858 (2021)
2021 New York Laws PBA - Public Authorities Article 10-D - Miscellaneous Authorities Title 2 - Buffalo Fiscal Stability Authority 3858 - Control Period.

§  3858.  Control  period.  1.  A control period shall begin as of the effective date of this title and may be  reimposed  during  an  advisory period  if  the authority determines at any time that a fiscal crisis is imminent or that any of the following events has occurred or that  there is  a  substantial  likelihood and imminence of such occurrence: (a) the city shall have failed to adopt a balanced  budget,  financial  plan  or budget   modification  as  required  by  sections  thirty-eight  hundred fifty-six and thirty-eight hundred fifty-seven of this  title,  (b)  the city shall have failed to pay the principal of or interest on any of its bonds  or  notes when due, (c) the city shall have incurred an operating deficit of one percent or more in the aggregate results of operations of any major fund of the city or a covered organization 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 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  in  subdivision  one  of  section  thirty-eight hundred fifty-one of this title, or (e) the city shall have violated any provision  of  this  title.  A  control  period shall terminate when the authority has determined that the city qualifies for  the  onset  of  an advisory   period   as   provided   under  subdivision  one  of  section thirty-eight hundred fifty-one of this title. After onset of an advisory 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 officer'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 June  thirtieth,  two  thousand thirty-seven.   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  city, as provided in sections thirty-eight hundred fifty-six and thirty-eight 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 city 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 city 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  city 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 city or employees of a covered  organization  subject  to  a  collective bargaining   agreement   or  an  employee  of  the  city  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 city.  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 city or any covered organization, or purporting to bind, the city  or  any  covered  organization.  Prior  to entering  into  any  collective  bargaining  agreement,  the city 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  city or any covered organization after the effective date of this title shall be  valid  and binding  upon the city or any covered organization unless first approved by resolution of the authority.  (f) shall act jointly with  the  city  in  selecting  members  of  any interest arbitration panel. Notwithstanding any other evidence presented by  the  city,  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 city;  (g)  shall  take  any  action  necessary  in  order  to  implement the financial plan should the city or any covered organization  have  failed to  comply  with  any  material  action  necessary  to fulfill the plan, provided, however, the authority shall provide seven (7) days notice  of its  determination  that  the  city  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  city or any covered organization;  (i) shall, with respect to any proposed borrowing by or on  behalf  of the  city  or  any  covered  organization  on  or  after July first, two thousand three, review the terms of  and  comment,  within  thirty  days after  notification  by  the  city or covered organization of a proposed borrowing, on the prudence of each proposed issuance of bonds  or  notes to  be  issued by the city 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 city or covered organization of a proposed borrowing to the mayor, the comptroller, the council, the director of  the  budget and  the  state  comptroller and indicate approval or disapproval of the proposed borrowing. Notwithstanding the foregoing, neither the city  nor any covered organization shall be prohibited from issuing bonds or notes to  pay  outstanding  bonds  or  notes; and, provided further, the first issuance of debt pursuant to chapter six hundred five of the laws of two thousand, as amended, shall be excluded from this requirement;  (j) may review the operation, management, efficiency and  productivity of  the  city  and  any  covered  organizations  as  the  authority  may determine, and make reports thereon; examine the  potential  to  enhance the  revenue  of  the city or any covered organization; audit compliance with the financial plan in such areas as the  authority  may  determine; recommend  to  the  city  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  require  the  city  to  undertake certain actions to advance serious and in-depth exploration  of  a  merger  of  services  with  the county, including identification and analysis of options; development of a detailed fiscal and programmatic plan; identification of city, county, and state impediments; and fostering of informed public debate;  (l)  may  review  and  approve or disapprove the terms of any proposed settlement of claims against the city or  any  covered  organization  in excess of fifty thousand dollars;  (m)  may obtain from the city, the covered organizations, 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 city and the covered organizations as the authority deems necessary or desirable to accomplish the purposes of this title;  (n)  may  perform  such  audits and reviews of the city and any agency thereof and any covered organizations as it deems necessary; and  (o) 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 city 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 city 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 city or of any of the covered  organizations  shall  involve  the city  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  city  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 city 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 mayor; and any officer or  employees of  the city 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  city  or  of  a  covered organization,  the  mayor 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.