Amd Part C S23, Chap 25 of 2009; add Art 5 Title 10-E SS1240 - 1259-a, Pub Auth L
Provides for the expiration of the metropolitan commuter transportation mobility tax and establishes the MTA fiscal oversight board; repeals a section of the public authorities law relating to the management advisory board of the MTA.
STATE OF NEW YORK
________________________________________________________________________
11265
IN ASSEMBLY
May 25, 2010
___________
Introduced by M. of A. SALADINO, MONTESANO -- Multi-Sponsored by -- M.
of A. ALFANO -- read once and referred to the Committee on Ways and
Means
AN ACT to amend part C of chapter 25 of the laws of 2009, amending the
tax law and the administrative code of the city of New York relating
to the metropolitan commuter transportation mobility tax, in relation
to the effective date of such chapter; to amend the public authorities
law, in relation to establishing the metropolitan transportation
authority fiscal oversight board, and to provide for the powers and
duties of such board; and to repeal section 1279-a of the public
authorities law relating to the management advisory board of the
metropolitan transportation authority
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 23 of part C of chapter 25 of the laws of 2009,
2 amending the tax law and the administrative code of the city of New York
3 relating to the metropolitan commuter transportation mobility tax, is
4 amended to read as follows:
5 § 23. This act shall take effect immediately and shall expire March 1,
6 2011 when upon such date the provisions of this act shall be deemed
7 repealed; provided however that:
8 (a) the metropolitan commuter transportation mobility tax enacted
9 pursuant to section one of this act that is (i) imposed on employers,
10 shall apply on and after March 1, 2009, provided however, that the tax
11 shall apply to public school districts within the metropolitan commuter
12 transportation district (MCTD) on and after September 1, 2009 and (ii)
13 imposed on individuals with net earnings from self-employment for tax
14 years beginning on or after January 1, 2009, but the individual's tax
15 liability for the 2009 tax year will be based only on ten-twelfths of
16 such net earnings for the 2009 tax year;
17 (b) the initial payment of such metropolitan commuter transportation
18 mobility tax enacted pursuant to section one of this act shall be made
19 with the third quarterly payment due in tax year 2009; provided however,
20 that the initial payment of such metropolitan commuter transportation
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11287-11-0
A. 11265 2
1 mobility tax shall be made at the same time as the first payment of the
2 withholding tax required to be paid pursuant to section 9 of the tax law
3 that is due on or after after October 31, 2009, and such payment by
4 employers shall include the taxes owed for the entire period beginning
5 on March 1, 2009 and that such payment by individuals with net earnings
6 from self-employment shall include the estimated taxes owed for the 2009
7 tax year as limited by paragraph (ii) of subdivision (a) of this
8 section, provided however, that public school districts within the MCTD
9 shall include taxes owed for the period beginning September 1, 2009;
10 (c) no addition to tax under subsection (c) of section 685 of the tax
11 law shall be imposed with respect to estimated tax payments of the
12 metropolitan commuter transportation mobility tax required to be filed
13 prior to the due date of the initial payment of the mobility tax as
14 specified in subdivision (b) of this section, provided the taxpayer
15 makes such estimated tax payments by such due date;
16 (d) the amendments to subsection 4 of section 618 of the tax law made
17 by section nine of this act shall survive the expiration and reversion
18 of such subsection as provided in section 8 of chapter 782 of the laws
19 of 1988, as amended; and
20 (e) the amendments to subdivision 4 of section 11-1718 of the adminis-
21 trative code of the city of New York made by section twenty-two of this
22 act shall survive the expiration and reversion of such subdivision as
23 provided in section 8 of chapter 782 of the laws of 1988, as amended.
24 § 2. Section 1279-a of the public authorities law is REPEALED.
25 § 3. Article 5 of the public authorities law is amended by adding a
26 new title 10-E to read as follows:
27 TITLE 10-E
28 METROPOLITAN TRANSPORTATION
29 AUTHORITY FISCAL OVERSIGHT CONTROL BOARD
30 Section 1240. Short title.
31 1241. Legislative intent.
32 1242. Definitions.
33 1243. Establishment of metropolitan transportation authority
34 fiscal oversight control board.
35 1244. Administration of the board.
36 1245. General powers of the board.
37 1246. Transfer of powers, duties and functions.
38 1247. Transfer of records.
39 1248. Transfer of employees.
40 1249. Continuity of authority.
41 1250. Completion of unfinished business.
42 1251. Terms occurring in laws, contracts and other documents.
43 1252. Existing rights and remedies preserved.
44 1253. Pending actions and proceedings.
45 1254. Assistance to the board; employees of the inspector gener-
46 al.
47 1255. Review period.
48 1256. MTA financial plan.
49 1257. Actions against the board.
50 1258. Audits.
51 1259. Effect of inconsistent provisions.
52 1259-a. Separability; construction.
53 § 1240. Short title. This title shall be known and may be cited as the
54 "Metropolitan transportation authority fiscal oversight control board
55 act".
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1 § 1241. Legislative intent. The legislature hereby finds and declares
2 that the metropolitan transportation authority is facing an ongoing
3 financial crisis, and that the crisis cannot be resolved absent outside
4 intervention. The legislature therefore declares that the creation of an
5 independent fiscal oversight board is necessary to address this finan-
6 cial crisis to restore the confidence of the financial markets, those
7 who use the metropolitan transportation authority services, those who do
8 business with such authority and the people of the state of New York.
9 § 1242. Definitions. For the purposes of this title, unless the
10 context requires otherwise:
11 1. "Board", "control board" and "fiscal oversight control board" mean
12 the metropolitan transportation authority fiscal oversight control board
13 established by section twelve hundred forty-three of this title.
14 2. "Forensic audit" means the use of accounting methods to collect
15 forensic evidence to determine if a criminal act including, but not
16 limited to, embezzlement or fraud, is occurring or has occurred within
17 the MTA.
18 3. "Inspector general" means the office of metropolitan transportation
19 authority inspector general established by section twelve hundred seven-
20 ty-nine of this article.
21 4. "MTA" means the metropolitan transportation authority established
22 by title eleven of this article.
23 5. "MTA region" means the metropolitan commuter transportation
24 district established by section twelve hundred sixty-two of this arti-
25 cle.
26 § 1243. Establishment of metropolitan transportation authority fiscal
27 oversight control board. There is hereby established the metropolitan
28 transportation authority fiscal oversight control board, as an independ-
29 ent entity within the office of inspector general, which shall exercise
30 the powers and duties provided for in this title.
31 § 1244. Administration of the board. 1. The board shall consist of
32 seven members which shall be appointed by the governor. Of the seven
33 members, one such member shall be appointed following the recommendation
34 of the state comptroller; one such member shall be appointed on the
35 recommendation of the temporary president of the senate; one such member
36 shall be appointed on the recommendation of the speaker of the assembly;
37 one such member shall be appointed on the recommendation of the minority
38 leader of the senate; and one such member shall be appointed on the
39 recommendation of the minority leader of the assembly. Every member,
40 who is otherwise an elected official, shall be entitled to designate a
41 single representative to attend, in his or her place, meetings of the
42 board and to vote or otherwise act in his or her behalf. Such designees
43 shall be residents of the state. Written notice of such designation
44 shall be furnished prior to any participation by the single designee.
45 Such single designee shall serve at the pleasure of the representative,
46 and shall not be authorized to delegate any of his or her duties or
47 functions to another person. Each member shall be appointed for a term
48 of four years, provided however, that three of the members first
49 appointed by the governor, including the member appointed following the
50 recommendation of the state comptroller shall serve for a term ending
51 June thirtieth, two thousand thirteen, and the remaining four members
52 first appointed by the governor including the members appointed on the
53 recommendation of the temporary president of the senate, the speaker of
54 the assembly, the minority leader of the senate and the minority leader
55 of the assembly shall serve for a term ending June thirtieth, two thou-
56 sand fifteen. Each member shall hold office until his or her successor
A. 11265 4
1 has been appointed and qualified. Thereafter, each member shall serve a
2 term of four years, except that any member appointed to fill a vacancy
3 shall serve only until the expiration of his or her predecessor's term.
4 2. The governor shall designate a chair and a vice-chair from among
5 the members. The chair shall preside over all meetings of the members
6 and shall have such other duties as the members may prescribe. The vice-
7 chair shall preside over all meetings of the members in the absence of
8 the chair and shall have such other duties as the members may prescribe.
9 3. The members of the board shall serve without salary, but each
10 member shall be reimbursed for actual and necessary expenses incurred in
11 the performance of such member's official duties as a member of the
12 board.
13 4. Notwithstanding any inconsistent provision of any general, special
14 or local law, ordinance, resolution or charter, no officer, member or
15 employee of the state, any city, county, town or village, any govern-
16 mental entity operating any public school or college, any school
17 district or any other public agency or instrumentality which exercises
18 governmental powers under the laws of the state, shall forfeit his or
19 her office or employment by reason of his or her acceptance of appoint-
20 ment as a member, officer or employee of the board, nor shall service as
21 such member, officer or employee of the board be deemed incompatible or
22 in conflict with such office or employment.
23 5. Four members shall constitute a quorum for the transaction of any
24 business or the exercise of any power of the board. No action shall be
25 taken by the board except pursuant to a favorable vote of at least four
26 members participating in a meeting at which such action is taken.
27 6. The board shall appoint a treasurer and may appoint officers and
28 agents as it may require and prescribe their duties.
29 § 1245. General powers of the board. Except as otherwise limited by
30 this title, the board shall have the following powers and duties:
31 1. to make and alter by-laws for its organizations and management;
32 2. to make and execute contracts and all other instruments or agree-
33 ments necessary or convenient to carry out any powers and functions
34 expressly given in this title;
35 3. to commence any action to protect or enforce any right conferred
36 upon it by any law, contract or other agreement;
37 4. to review, authorize and approve all contracts of the MTA or any of
38 its subsidiaries in excess of one hundred thousand dollars;
39 5. to approve or disapprove the financial plan and the financial plan
40 modifications of the MTA, and shall formulate and adopt its own modifi-
41 cations to the financial plan, as necessary such modifications shall
42 become effective upon their adoption by the control board;
43 6. to set a maximum level of spending for any proposed budget of any
44 subsidiary organizations of the MTA;
45 7. (a) to impose a wage and/or hiring freeze upon a finding by the
46 control board that a wage and/or hiring freeze is essential to the
47 adoption or maintenance of a MTA budget or financial plan that is in
48 compliance with this title, the board shall be empowered to order that
49 all increases in salary or wages of employees of the MTA and employees
50 of covered subsidiaries which will take effect after the date of the
51 order pursuant to collective bargaining agreements, other analogous
52 contracts or interest arbitration awards, in existence or thereafter
53 entered into, requiring such salary or wage increases as of any date
54 thereafter are suspended. Such order may also provide that all increased
55 payments for holiday and vacations differentials, shift differentials,
56 salary adjustments, according to plan and step-ups or increments for
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1 employees of the MTA and employees of covered subsidiaries which will
2 take effect after the date of the order pursuant to collective bargain-
3 ing agreements, other analogous contracts or interest arbitration awards
4 requiring such increased payments as of any date thereafter are, in the
5 same manner, suspended. For the purposes of computing the pension base
6 of retirement allowances, any suspended salary or wage increases and any
7 other suspended payments shall not be considered as part of compensation
8 or final compensation or of annual salary earned or earnable.
9 (b) Notwithstanding the provisions of paragraph (a) of this subdivi-
10 sion, this subdivision shall not be applicable to employees of the MTA
11 or employees of a covered subsidiary subject to a collective bargaining
12 agreement or an employee of the MTA or a covered subsidiary not subject
13 to the collective bargaining agreement where the collective bargaining
14 representative or such unrepresented employee has agreed to a deferment
15 of salary or wage increase, by an instrument in writing which has been
16 certified by the control board as being an acceptable and appropriate
17 contribution toward alleviating the fiscal crisis of the authority. Any
18 such agreement to a deferral of salary or wage increase may provide that
19 for the purposes of computing the pension base of retirement allowances,
20 any deferred salary or wage increase may be considered as part of
21 compensation or final compensation or of annual salary earned or earna-
22 ble.
23 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
24 subdivision, no retroactive pay adjustments of any kind shall accrue or
25 be deemed to accrue during the period of wage freeze, and no such addi-
26 tional amounts shall be paid at the time a wage freeze is lifted, or at
27 any time thereafter;
28 8. to conduct forensic audits and report any in which there is reason
29 case to believe a violation of a law, abuse or waste occurred relating
30 to the MTA to the state inspector general or, where applicable, the
31 inspector general;
32 9. to review and approve or disapprove any collective bargaining
33 agreement to be entered into by the MTA or any covered subsidiary or
34 purporting to bind, the MTA or any covered subsidiary. Prior to entering
35 into any collective bargaining agreement, the MTA or any covered subsid-
36 iary shall submit a copy of such collective bargaining agreement to the
37 control board, accompanied by an analysis of the projected costs of such
38 agreement and certification that execution of the agreement will be in
39 accordance with the financial plan. Such submission shall be in such
40 form and shall include such additional information as the control board
41 may prescribe. The control board shall promptly review the terms of such
42 collective bargaining agreement and the supporting information in order
43 to determine compliance with the financial plan, and shall disapprove
44 any collective bargaining agreement which, in its judgement, would be
45 inconsistent with the financial plan. No collective bargaining agree-
46 ment binding, or purporting to bind, the MTA or any covered subsidiary
47 after the effective date of this title shall be valid and binding upon
48 the MTA or any covered subsidiary unless first approved by resolution of
49 the control board and shall act jointly with the MTA in selecting
50 members of any interest arbitration panel. Notwithstanding any other
51 evidence presented by the MTA, the covered organization or any recog-
52 nized employee organization, the arbitration panel must, prior to issu-
53 ing any final decision, provide the board with the opportunity to pres-
54 ent evidence regarding the fiscal condition of the MTA;
55 10. to make recommendations to the governor, the temporary president
56 of the senate, the speaker of the assembly, the minority leaders of the
A. 11265 6
1 senate and the assembly, and the chairs and ranking minority members of
2 the following committees: the senate finance committee, the assembly
3 ways and means committee, the senate committee on corporations, authori-
4 ties and commissions and the assembly committee on corporations, author-
5 ities and commissions and control board members concerning opportunities
6 to improve the performance, reporting, reformation, structure and over-
7 sight of the MTA;
8 11. to provide such additional information and analysis as may be
9 reasonably requested by the legislature and state comptroller;
10 12. to review the potential for and make recommendations to the gover-
11 nor and legislature regarding the terms of board members;
12 13. to develop and issue a written acknowledgement that a board member
13 must execute at the time that the member takes and subscribes their oath
14 of office, or within sixty-five days after the effective date of this
15 title if the member has already taken and subscribed their oath of
16 office, in which the board member acknowledges that they understand
17 their independence and fiduciary duties, including their duty of loyalty
18 and care to the organization and commitment to the control board's
19 mission;
20 14. to recommend to the legislature and governor a compensation plan
21 for officers of the MTA and covered subsidiaries;
22 15. to develop guidelines for best corporate management and financial
23 practices of the MTA, where such authority shall comply with those
24 guidelines except when the MTA provides to the control board a detailed
25 explanation of the MTA's failure to comply, and where an explaining
26 authority shall be considered in compliance with such guidelines unless
27 and until notified to the contrary by the control board;
28 16. to periodically evaluate the suspension of salary or wage
29 increases or suspension of other increased payments or benefits, and
30 may, if it finds that the fiscal crisis, in the sole judgment of the
31 control board has abated, terminate such suspensions;
32 17. to appoint such officers and employees as it may require for the
33 performance of its duties and to fix and determine their qualifications,
34 duties and compensation, and to retain or employ counsel, auditors and
35 private financial consultants and other services on a contract basis or
36 otherwise for rendering professional, business or technical services and
37 advice; and, in taking such actions, the control board shall consider
38 the financial impact on the MTA;
39 18. to make reports received by and prepared by the control board
40 available to the public, to the extent practicable, through the inter-
41 net. In addition, the control board may make publicly available, and to
42 the extent practicable through the internet, such additional information
43 as it deems appropriate, provided such disclosure does not interfere
44 with the oversight functions of such board. The provisions of this
45 subdivision shall not require, however, the public disclosure of docu-
46 ments or information not subject to disclosure under the provisions of
47 section eighty-seven of the public officers law. Furthermore, before
48 making publicly available in any manner information that is not subject
49 to mandatory disclosure under the provisions of section eighty-seven of
50 the public officers law, the control board shall first obtain the
51 consent of the MTA;
52 19. to annually issue reports on its findings and analyses to the
53 governor, the chair and ranking minority member of the senate finance
54 committee, the chair and ranking minority member of the assembly ways
55 and means committee, the chair and ranking minority member of the senate
56 standing committee on corporations, authorities and commissions, the
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1 chair and ranking minority member of the assembly standing committee on
2 corporations, authorities and commissions, the state comptroller and the
3 attorney general, with conclusions and opinions concerning the perform-
4 ance of the MTA and to study, review and report on the operations, prac-
5 tices and finances of the MTA. Such reports shall include, but not be
6 limited to: (a) the economic impact of the mobility tax on the MTA
7 region, (b) a compensation schedule in addition to the report described
8 in section twenty-eight hundred six of this chapter that shall include,
9 by position, title and name of the person holding such position or
10 title, the salary, compensation, allowance and/or benefits provided to
11 any officer, director or employee in a decision making or managerial
12 position of such authority whose salary is in excess of one hundred
13 thousand dollars, (c) educational background and professional experience
14 for all directors, officers and employees for whom salary reporting is
15 required under paragraph (b) of this subdivision, (d) the projects
16 undertaken by such authority during the past year, (e) a listing and
17 description, in addition to the report required by paragraph a of subdi-
18 vision three of section twenty-eight hundred ninety-six of this chapter
19 of all real property of the MTA having an estimated fair market value in
20 excess of fifty thousand dollars that the MTA acquires or disposes of
21 during such period. The report shall contain the price received or paid
22 by the authority and the name of the purchaser or seller for all such
23 property sold or bought by the MTA, (f) the MTA's code of ethics, (g) an
24 assessment of the effectiveness of its internal control structure and
25 procedures, (h) a description of the MTA and its board structure,
26 including (i) names of committees and committee members, (ii) lists of
27 board meetings and attendance, (iii) descriptions of major MTA units and
28 subsidiaries, and (iv) number of employees, (i) its charter, if any, and
29 by-laws, (j) a listing of material changes in operations and programs
30 during the reporting year, (k) a description of assets valued at more
31 than twenty thousand dollars and/or services bought or sold and
32 contracts for services valued at more than one hundred thousand dollars
33 entered into other than on a competitive basis, including (i) the nature
34 of those assets and services, (ii) the names of the counterparties, and
35 (iii) where the contract price for goods purchased exceeds fair market
36 value, or where the contract price for goods sold is less than fair
37 market value, a statement of the fair market value, a detailed explana-
38 tion executed by the chief executive officer, chief financial officer or
39 procurement officer of the reasons for the high price purchase or the
40 low price sale including the relationship, if any, of persons associated
41 with the buyer/purchaser and persons associated with the MTA and/or the
42 officials who appointed members to the MTA board, and (l) a description
43 of any material pending litigation in which the authority is involved as
44 a party during the reporting year; and
45 20. to do any and all things necessary or convenient to carry out its
46 purposes and exercise the powers expressly given and granted in this
47 title, provided, however, the board shall under no circumstances
48 acquire, hold or transfer title to, lease, own beneficially or other-
49 wise, manage, operate or otherwise exercise control over any real prop-
50 erty, any improvement to real property or any interest therein other
51 than a lease or sublease of office space deemed necessary or desirable
52 by the control board.
53 § 1246. Transfer of powers, duties and functions. All powers, duties
54 and functions conferred upon the management advisory board created by
55 the former section twelve hundred seventy-nine-a of this article, shall
56 be transferred to and assumed by the board.
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1 § 1247. Transfer of records. The former management advisory board
2 created by the former section twelve hundred seventy-nine-a of this
3 article shall deliver to the board all books, papers, records and prop-
4 erty as requested by the board.
5 § 1248. Transfer of employees. Upon the transfer of the functions of
6 the former management advisory board created by the former section
7 twelve hundred seventy-nine-a of this article to the board, any affected
8 employees may be transferred to the board in accordance with section
9 seventy of the civil service law.
10 § 1249. Continuity of authority. For the purpose of succession to all
11 functions, powers, duties and obligations transferred and assigned to,
12 devolved upon and assumed by the board shall be deemed and held to
13 constitute the continuation of the former management advisory board
14 pertaining to the powers and functions transferred.
15 § 1250. Completion of unfinished business. Any business or other
16 matter undertaken or commenced by the former management advisory board
17 created by the former section twelve hundred seventy-nine-a of this
18 article pertaining to or connected with the functions, powers, obli-
19 gations and duties transferred and assigned to the board, and pending on
20 the effective date of this title may be conducted and completed by the
21 board in the same manner and under the same terms and conditions and
22 with the same effect as if conducted and completed by the former manage-
23 ment advisory board.
24 § 1251. Terms occurring in laws, contracts and other documents. When-
25 ever the former management advisory board created by the former section
26 twelve hundred seventy-nine-a of this article is referred to or desig-
27 nated in any law, contract or documents pertaining to the functions,
28 powers, obligations and duties transferred and assigned to the board,
29 such reference or designation shall be deemed to refer to the board.
30 § 1252. Existing rights and remedies preserved. No existing right or
31 remedy of any character shall be lost, impaired or affected by reason of
32 this title.
33 § 1253. Pending actions and proceedings. No action or proceeding
34 pending at the time when this act shall take effect, brought by or
35 against the former management advisory board created by the former
36 section twelve hundred seventy-nine-a of this article relating to the
37 function, power or duty transferred to or devolved upon the board shall
38 be affected by this title, but the same may be prosecuted or defended in
39 the name of the board accountability and upon application to the court,
40 the board shall be substituted as a party.
41 § 1254. Assistance to the board; employees of the inspector general.
42 1. The board may use agents, employees and facilities of the inspector
43 general.
44 2. Officers and employees of the MTA may be transferred to the board
45 without examination and without loss of any civil service or retirement
46 status or rights. Any officer or employee of the board who heretofore
47 acquired or shall hereafter acquire such position status by transfer and
48 who at the time of such transfer was a member of the New York state and
49 local employees' retirement system shall continue to be a member of such
50 system as long as he or she continues in such service, and shall contin-
51 ue to have all the rights, privileges and obligations of membership in
52 such system.
53 § 1255. Review period. 1. Annually not later than November first, the
54 MTA shall submit to the board an annual budget proposal and financial
55 plan.
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1 2. Not later than thirty days after such submission, the board shall
2 approve or disapprove the budget proposal and financial plan.
3 3. In the event the board shall disapprove such budget proposal and
4 financial plan based on disapproval of certain actions or assumptions,
5 the board shall promptly thereafter notify the MTA of its reasons. With-
6 in fifteen days from the receipt of such notification the MTA shall
7 modify the budget proposal and financial plan, and unless such budget
8 proposal and financial plan modification is approved by the board, the
9 board shall impose a financial plan of its own formulation as soon as
10 practicable.
11 § 1256. MTA financial plan. 1. The MTA shall prepare and submit to
12 the board a four-year financial plan, not later than the date required
13 for submission of the annual budget. Such financial plan shall, in addi-
14 tion to the requirements for financial plans set forth in subdivisions
15 two and three of this section, contain actions sufficient to ensure with
16 respect to the major operating funds for each fiscal year of the plan
17 that annual aggregate operating expenses for such fiscal year shall not
18 exceed annual aggregate operating revenues for such fiscal year.
19 2. Each financial plan and financial plan modification shall conform
20 to the requirements of paragraph (a) of this subdivision and shall
21 provide that the major operating funds of the MTA will be balanced in
22 accordance with generally accepted accounting principles. The financial
23 plan shall be developed and approved, and may from time to time be modi-
24 fied, in accordance with the following procedures:
25 (a) The MTA shall submit to the board a certificate stating that the
26 budget submitted to the board is consistent with the financial plan
27 submitted therewith and that operation within the budget is feasible.
28 (b) Prior to the approval or disapproval of the financial plan of the
29 MTA by the board, the board shall verify that the MTA has requested
30 community, educational or other entities to seek public input and
31 comment relating to the MTA's and/or any covered subsidiaries' financial
32 plan. The board shall evaluate any proposals submitted to the board for
33 cost savings and/or service delivery enhancement by the MTA.
34 (c) If the board determines that the financial plan or financial plan
35 modification provided pursuant to paragraph (e) of this subdivision or
36 section twelve hundred fifty-five of this title is complete and complies
37 with the standards set forth in this subdivision, the board shall make a
38 certification to the MTA setting forth revenue estimates agreed to by
39 the board in accordance with such determination.
40 (d) The board shall, in the event it disagrees with elements of the
41 financial plan provided pursuant to paragraph (e) of this subdivision,
42 or section twelve hundred fifty-five of this title, provide notice ther-
43 eof to the MTA, with copies to the director of the budget, the state
44 comptroller, the chair of the assembly ways and means committee, the
45 chair of the senate finance committee and the ranking minority members
46 of such committees, if, in the judgment of the board, such plan: (i) is
47 incomplete; (ii) fails to contain projections of revenues and expendi-
48 tures that are based on reasonable and appropriate assumptions and meth-
49 ods of estimations; (iii) fails to provide that operations of the MTA
50 and the covered subsidiaries will be conducted within the cash resources
51 available; or (iv) fails to comply with the provisions of this title or
52 other requirements of law.
53 (e) After the initial adoption of an approved financial plan, the
54 revenue estimates certified by the board and the financial plan shall be
55 regularly reexamined by the board in consultation with the MTA, the
56 state comptroller and the covered subsidiaries, and the MTA shall
A. 11265 10
1 provide a modified financial plan in such detail and within such time
2 periods as the board may require. In the event of reductions in such
3 revenue estimates, or in the event the MTA or a covered subsidiary shall
4 expend funds at a rate that would exceed the aggregate expenditure limi-
5 tation for the MTA or covered subsidiary prior to the expiration of the
6 fiscal year, the MTA shall submit a financial plan modification to
7 effect such adjustments in revenue estimates and reductions in total
8 expenditures as may be necessary to conform to such revised revenue
9 estimates or aggregate expenditure limitations.
10 (f) If, within a time period specified by the board, the MTA fails to
11 make such modifications after reductions in revenue estimates, or to
12 provide a modified plan in detail and within such time period required
13 by the board, the board shall adopt a resolution so finding and shall,
14 as soon as practicable thereafter, formulate and adopt a financial plan
15 to be effective until the board approves a financial plan submitted by
16 the MTA. All budgets and operations of the MTA or a covered subsidiary
17 shall be in conformance and compliance with the financial plan then in
18 effect.
19 (g) The MTA shall amend its budget or shall submit a financial plan
20 modification for the approval of the board such that the MTA's budget
21 and the approved financial plan shall be consistent. In no event shall
22 the MTA operate under a budget that is inconsistent with an approved
23 financial plan.
24 3. The financial plan shall be in such form and shall contain such
25 information for each year during which the financial plan is in effect
26 as the board may specify, and shall include the MTA and all the covered
27 subsidiaries, and shall, in such detail as the board from time to time
28 may prescribe, include (a) statements of all estimated revenues and of
29 all expenditures and cash flow projections of the MTA and each covered
30 subsidiary, and (b) an accounting of the expenditure of efficiency
31 incentive grants available to the MTA for each year of the plan.
32 4. The financial plan shall include any information which the board
33 may request to satisfy itself that (a) projected employment levels,
34 collective bargaining agreements and other actions relating to employee
35 costs, capital construction and such other matters as the board may
36 specify are consistent with the provisions made for such obligations in
37 the financial plan, (b) the MTA and the covered subsidiaries are taking
38 whatever action is necessary with respect to programs mandated by state
39 and federal law to ensure that expenditures for such programs are limit-
40 ed to and covered by the expenditures stated in the financial plan, (c)
41 adequate reserves are provided to maintain essential programs in the
42 event revenues have been overestimated or expenditures underestimated
43 for any period, and (d) the MTA has adequate cash resources to meet its
44 obligations. In addition, except to the extent such reporting require-
45 ments may be modified pursuant to agreement between the board and the
46 MTA, for each fiscal year, or while bonds, notes or other obligations
47 issued by the MTA are outstanding, the MTA shall prepare a quarterly
48 report of summarized budget data depicting overall trends, by major
49 category within funds, of actual revenues and budget expenditures for
50 the entire budget rather than individual line items, as well as updated
51 quarterly cash flow projections of receipts and disbursements. Such
52 reports shall compare revenue estimates and appropriations as set forth
53 in such budget and in the quarterly revenue and expenditure projections
54 submitted therewith, with the actual revenues and expenditures made to
55 date. Such reports shall also compare actual receipts and disbursements
56 with the estimates contained in the cash flow projections, together with
A. 11265 11
1 variances and their explanation. All quarterly reports shall be accompa-
2 nied by recommendations from the MTA to the board setting forth any
3 remedial action necessary to resolve any unfavorable budget variance
4 including the overestimation of revenues and the underestimation of
5 appropriations. These reports shall be completed within thirty days
6 after the end of each quarter and shall be submitted to the inspector
7 general, the board, the director of the budget and the state comp-
8 troller.
9 5. For each financial plan and financial plan modification to be
10 prepared and submitted by the MTA to the board pursuant to the
11 provisions of this section, the covered subsidiaries shall submit to the
12 MTA such information with respect to their projected expenditures,
13 revenues and cash flows for each of the years covered by such financial
14 plan or modification as the MTA shall determine.
15 § 1257. Actions against the board. 1. Except in an action for wrongful
16 death, no action or proceeding shall be prosecuted or maintained against
17 the board for personal injury or damage to real or personal property
18 alleged to have been sustained by reason of the negligence or wrongful
19 act of the board or of any member, officer, agent or employee thereof,
20 unless (a) it shall appear by and as an allegation in the complaint or
21 moving papers that a notice of claim shall have been made and served
22 upon the board, within the time limit prescribed by and in compliance
23 with section fifty-e of the general municipal law, (b) it shall appear
24 by and as an allegation in the complaint or moving papers that at least
25 thirty days have elapsed since the service of such notice and that
26 adjustment or payment thereof has been neglected or refused, and (c) the
27 action or proceeding shall be commenced within one year after the
28 happening of the event upon which the claim is based. An action against
29 the board for wrongful death shall be commenced in accordance with the
30 notice of claim and time limitation provisions of title eleven of arti-
31 cle nine of this chapter.
32 2. Wherever a notice of claim is served upon the board, it shall have
33 the right to demand an examination of the claimant relative to the
34 occurrence and extent of the injuries or damages for which claim is
35 made, in accordance with the provisions of section fifty-h of the gener-
36 al municipal law.
37 3. The board may require any person presenting for settlement an
38 account or claim for any cause whatever against the board to be sworn
39 before a member, counsel or an attorney, officer or employee thereof
40 designated for such purpose, concerning such account or claim and when
41 so sworn, to answer orally as to any facts relative to such account or
42 claim. The board shall have power to settle or adjust any claims in
43 favor of or against the board.
44 4. The rate of interest to be paid by the board upon any judgment for
45 which it is liable, other than a judgment on bonds, notes or other obli-
46 gations, shall not exceed the maximum rate of interest on judgments and
47 accrued claims against municipal authorities as provided in the general
48 municipal law. Interest on payments of principal or interest on any
49 bonds, notes or other obligations in default shall accrue at the rate
50 specified in the general municipal law until paid or otherwise satis-
51 fied.
52 5. The venue of every action, suit or special proceeding brought
53 against the board shall be the supreme court in a county in the MTA
54 region.
55 6. Neither any member of the board nor any officer, employee or agent
56 of the board, while acting within the scope of his or her authority,
A. 11265 12
1 shall be subject to any liability resulting from exercising or carrying
2 out any of the powers given in this title.
3 7. (a) The state shall hold harmless and indemnify members, officers
4 and employees of the board, all of whom shall be deemed officers and
5 employees of the state for purposes of section seventeen of the public
6 officers law, against any claim, demand, suit, or judgment arising by
7 reason of any act or omission to act by such member, officer or employee
8 occurring in the discharge of his or her duties and within the scope of
9 his or her service on behalf of the board including any claim, demand,
10 suit or judgment based on allegations that financial loss was sustained
11 by any person in connection with the acquisition, disposition or holding
12 of securities or other obligations. In the event of any such claim,
13 demand, suit or judgment, a member, officer or employee of the board
14 shall be held harmless and indemnified, notwithstanding the limitations
15 of subdivision one of section seventeen of the public officers law,
16 unless such individual is found by a final judicial determination not to
17 have acted, in good faith, for a purpose which he or she reasonably
18 believed to be in the best interest of the board or not to have had
19 reasonable cause to believe that his or her conduct was lawful.
20 (b) In connection with any such claim, demand, suit, or judgment, any
21 member, officer or employee of the board shall be entitled to represen-
22 tation by private counsel of his or her choice in any civil judicial
23 proceeding whenever the attorney general determines based upon his or
24 her investigation and review of the facts and circumstances of the case
25 that representation by the attorney general would be inappropriate. The
26 attorney general shall notify the individual in writing of such determi-
27 nation that the individual is entitled to be represented by private
28 counsel. The attorney general may require, as a condition to payment of
29 the fees and expenses of such representative, that appropriate groups of
30 such individuals be represented by the same counsel. If the individual
31 or groups of individuals is entitled to representation by private coun-
32 sel under the provisions of this section, the attorney general shall so
33 certify to the state comptroller. Reasonable attorneys' fees and liti-
34 gation expenses shall be paid by the state to such private counsel from
35 time to time during the pendency of the civil action or proceeding,
36 subject to certification that the individual is entitled to represen-
37 tation under the terms and conditions of this section by the board, upon
38 the audit and warrant of the state comptroller. The provisions of this
39 subdivision shall be in addition to and shall not supplant any indemni-
40 fication or other benefits heretofore or hereafter conferred upon
41 members, officers, or employees of and representatives to the board by
42 section seventeen of the public officers law, by action of the board or
43 otherwise. The provisions of this subdivision shall inure only to
44 members, officers and employees of the board, shall not enlarge or
45 diminish the rights of any other party, and shall not impair, limit or
46 modify the rights and obligations of any insurer under any policy of
47 insurance.
48 § 1258. Audits. 1. Any accounts of the board shall be subject to the
49 audit of the state comptroller. In addition, the board shall be subject
50 to an annual financial audit performed by an independent certified
51 accountant selected by the board. Such audit report shall be submitted
52 to the board, the inspector general, the governor, the state comp-
53 troller, the chair and ranking minority member of the senate finance
54 committee and the chair and ranking minority member of the assembly ways
55 and means committee.
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1 2. For each fiscal year, and within one hundred twenty days after the
2 close of the MTA's fiscal year, the MTA shall submit its audited finan-
3 cial statements to the board.
4 § 1259. Effect of inconsistent provisions. Insofar as the provisions
5 of this title are inconsistent with the provisions of any other act,
6 general or special law (including article nine of this chapter), or of
7 any charter, local law, ordinance or resolution of any municipality, the
8 provisions of this title shall be controlling. Nothing contained in this
9 section shall be held to supplement or otherwise expand the powers or
10 duties of the board otherwise set forth in this title.
11 § 1259-a. Separability; construction. If any clause, sentence, para-
12 graph, section, or part of this title shall be adjudged by any court of
13 competent jurisdiction to be invalid, such judgment shall not affect,
14 impair or invalidate the remainder thereof, but shall be confined in its
15 operation to the clause, sentence, paragraph, section, or part thereof
16 involved in the controversy in which such judgment shall have been
17 rendered. The provisions of this title shall be liberally construed to
18 assist the effectuation of the public purposes furthered hereby.
19 § 4. This act shall take effect on the sixtieth day after it shall
20 have become a law; provided, however, that the governor is hereby
21 authorized and directed to appoint all seven members of the metropolitan
22 transportation authority fiscal oversight control board on or before
23 such effective date.
