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A08019 Summary:

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                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8019--C
                                                                Cal. No. 327
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                      June 4, 2015
                                       ___________
 
        Introduced by M. of A. O'DONNELL, COLTON, RAIA, BRONSON -- read once and
          referred to the Committee on Education -- advanced to a third reading,
          amended  and  ordered  reprinted,  retaining its place on the order of
          third reading -- again amended on third  reading,  ordered  reprinted,
          retaining  its place on the order of third reading -- again amended on
          third reading, ordered reprinted, retaining its place on the order  of
          third reading
 
        AN  ACT  to  amend  the  education  law  and the tax law, in relation to
          contracts for the transportation of school children
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Statement of legislative findings and necessity. The legis-
     2  lature  hereby finds that for three decades beginning in 1979, following
     3  a strike by school bus workers, the school bus contracts of the board of
     4  education  of  the  city  of  New  York  included  employee   protection
     5  provisions  requiring transportation contractors, among other things, to
     6  give priority in hiring to employees who became  unemployed  because  of
     7  their  employers'  loss  of  bus contract work for such board and to pay
     8  such employees the same wages and benefits they had  received  prior  to
     9  becoming unemployed.
    10    Following  the 2011 decision by the New York State Court of Appeals in
    11  L&M Bus Corp., et al., v. the New York City Department of Education,  et
    12  al.,  the board of education of the city of New York did not include the
    13  employee protection provisions that had been part of the board's  school
    14  bus  contracts for over 30 years or any similar provisions in its solic-
    15  itations for its school bus contracts.  After the issuance of the  first
    16  such Post-L&M solicitation; there was a school bus strike in January and
    17  February  of  2013. During this strike, many children were either unable
    18  to attend school or were burdened, along with their families, with find-
    19  ing alternative modes of transportation in the heart of winter.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10792-07-6
        A. 8019--C                          2
 
     1    The legislature further finds that the board of education of the  city
     2  of  New  York  contracts  with  62 companies to provide vital school bus
     3  transportation to 149,000 school-age children. Pursuant to the education
     4  law, the state reimburses the board of education of the city of New York
     5  for a substantial percentage of its school bus contract expenditures.
     6    Accordingly,  the  legislature  finds that the education law should be
     7  amended to require the board of education of the city  of  New  York  to
     8  include  important  employee  protections in its procurements for school
     9  bus transportation contracts and to authorize the board of education  to
    10  amend  existing  contracts to include these protections. Including these
    11  protections in such board's  contracts  will  aid  in  avoiding  service
    12  disruptions  and  pension  withdrawal liability claims, while protecting
    13  the experienced school bus contract workforce from significant wage  and
    14  benefit  reductions  and  facilitating  the  retention of an experienced
    15  workforce. Inclusion of such protections will  secure  more  cost-effec-
    16  tive, higher quality and efficient procurement and performance of school
    17  bus transportation services.
    18    §  2.  Paragraph  a  of subdivision 14 of section 305 of the education
    19  law, as amended by chapter 273 of the laws of 1999, is amended  to  read
    20  as follows:
    21    a.  (1)  All  contracts for the transportation of school children, all
    22  contracts to maintain school buses owned or leased by a school  district
    23  that  are  used for the transportation of school children, all contracts
    24  for mobile instructional units, and all contracts to  provide,  maintain
    25  and  operate  cafeteria  or restaurant service by a private food service
    26  management company shall be subject to the approval of the commissioner,
    27  who may disapprove a proposed contract if, in his or  her  opinion,  the
    28  best  interests  of  the  district  will  be promoted thereby. Except as
    29  provided in paragraph e of this subdivision, all such contracts  involv-
    30  ing an annual expenditure in excess of the amount specified for purchase
    31  contracts in the bidding requirements of the general municipal law shall
    32  be  awarded to the lowest responsible bidder, which responsibility shall
    33  be determined by the board of education or the trustee  of  a  district,
    34  with  power  hereby vested in the commissioner to reject any or all bids
    35  if, in his or her opinion, the best interests of the  district  will  be
    36  promoted  thereby and, upon such rejection of all bids, the commissioner
    37  shall order the board of education or trustee of the district  to  seek,
    38  obtain  and  consider  new proposals. All proposals for such transporta-
    39  tion, maintenance, mobile instructional units, or cafeteria and  restau-
    40  rant  service  shall  be in such form as the commissioner may prescribe.
    41  Advertisement for bids shall be published in a newspaper  or  newspapers
    42  designated  by  the board of education or trustee of the district having
    43  general circulation within the district for such  purpose.  Such  adver-
    44  tisement  shall contain a statement of the time when and place where all
    45  bids received pursuant to such advertisement will be publicly opened and
    46  read either by the school authorities or by a person or  persons  desig-
    47  nated  by  them.  All bids received shall be publicly opened and read at
    48  the time and place so specified. At least five days shall elapse between
    49  the first publication of such advertisement and the  date  so  specified
    50  for  the  opening  and  reading of bids. The requirement for competitive
    51  bidding shall not apply to an award of a contract for the transportation
    52  of pupils or a contract for mobile instructional units, if such award is
    53  based on an evaluation  of  proposals  in  response  to  a  request  for
    54  proposals  pursuant  to paragraph e of this subdivision. The requirement
    55  for competitive bidding shall not apply to annual, biennial, or trienni-
    56  al extensions of a contract nor shall the  requirement  for  competitive
        A. 8019--C                          3
 
     1  bidding  apply  to  quadrennial  or  quinquennial  year  extensions of a
     2  contract involving transportation of pupils, maintenance of school buses
     3  or mobile instructional units secured either through competitive bidding
     4  or  through  evaluation  of  proposals  in  response  to  a  request for
     5  proposals pursuant to paragraph e of this subdivision, when such  exten-
     6  sions  [(1)]  (i) are made by the board of education or the trustee of a
     7  district, under rules and regulations prescribed  by  the  commissioner,
     8  and,  [(2)]  (ii) do not extend the original contract period beyond five
     9  years from the date cafeteria and restaurant  service  commenced  there-
    10  under and in the case of contracts for the transportation of pupils, for
    11  the  maintenance of school buses or for mobile instructional units, that
    12  such contracts may be extended, except that power is  hereby  vested  in
    13  the commissioner, in addition to his or her existing statutory authority
    14  to  approve or disapprove transportation or maintenance contracts, [(i)]
    15  (A) to reject any extension of a contract beyond the initial term there-
    16  of if he or she finds that amount to be paid  by  the  district  to  the
    17  contractor  in  any year of such proposed extension fails to reflect any
    18  decrease  in  the  regional  consumer  price   index   for   the   N.Y.,
    19  N.Y.-Northeastern, N.J. area, based upon the index for all urban consum-
    20  ers  (CPI-U)  during  the  preceding  twelve  month  period,  or for all
    21  contracts for school buses used for the transportation of  school  chil-
    22  dren,  maintenance, and all contracts for mobile instructional units, if
    23  the amount to be paid by the district to the contractor in any  year  of
    24  such  proposed extension fails to reflect any percentage decrease in the
    25  employment cost index (ECI) for total compensation for private  industry
    26  workers in the northeast region (not seasonally adjusted) for the fourth
    27  quarter of the preceding year; [and (ii)] (B) to reject any extension of
    28  a  contract  after ten years from the date transportation or maintenance
    29  service commenced thereunder, or mobile instructional units  were  first
    30  provided,  if  in his or her opinion, the best interests of the district
    31  will be promoted thereby. Upon such rejection of any proposed extension,
    32  the commissioner may order the board of  education  or  trustee  of  the
    33  district to seek, obtain and consider bids pursuant to the provisions of
    34  this  section;  and (C) to reject any extension of a contract for trans-
    35  portation, or new contract, if he or she finds that  the  amount  to  be
    36  paid  by  the  district  to  the contractor in any year of such proposed
    37  contract fails to reflect  the  savings  realized  from  the  sales  tax
    38  exemption  on  school  buses, parts, equipment, lubricants and fuel used
    39  for school purposes pursuant to paragraph forty-four of subdivision  (a)
    40  of section eleven hundred fifteen of the tax law. The board of education
    41  or  the  trustee  of  a school district electing to extend a contract as
    42  provided herein, may, in its discretion, increase the amount to be  paid
    43  in  each  year  of the contract extension by an amount not to exceed the
    44  regional consumer price index increase for the N.Y.,  N.Y.-Northeastern,
    45  N.J.  area, based upon the index for all urban consumers (CPI-U), during
    46  the preceding twelve month period, or for all contracts for school buses
    47  used for the transportation of school  children,  maintenance,  and  all
    48  contracts for mobile instructional units, by an amount not to exceed the
    49  percentage  increase  in  the  employment cost index (ECI) total compen-
    50  sation for  private  industry  workers  in  the  northeast  region  (not
    51  seasonally  adjusted)  for  the  fourth  quarter  of the preceding year,
    52  provided it has been satisfactorily established by the  contractor  that
    53  there  has  been at least an equivalent increase in the amount of his or
    54  her cost of operation, during the period of the contract.
    55    (2) Notwithstanding any other provision of this subdivision, the board
    56  of education of a school district located in a city with  at  least  one
        A. 8019--C                          4
 
     1  million inhabitants shall include in contracts for the transportation of
     2  school  children  in  kindergarten through grade twelve, whether awarded
     3  through competitive  bidding  or  through  evaluation  of  proposals  in
     4  response  to  a  request  for  proposals pursuant to paragraph e of this
     5  subdivision, provisions for the retention or  preference  in  hiring  of
     6  school  bus  workers  and for the preservation of wages, health, welfare
     7  and retirement benefits and seniority for school  bus  workers  who  are
     8  hired pursuant to such provisions for retention or preference in hiring,
     9  in  connection  with  such contracts. For purposes of this subparagraph,
    10  "school bus worker" shall mean  an  operator,  mechanic,  dispatcher  or
    11  attendant  who:  (i) was employed as of June thirtieth, two thousand ten
    12  or at any time thereafter by (A) a contractor that  was  a  party  to  a
    13  contract  with  the board of education of a school district located in a
    14  city with at least one million inhabitants  for  the  transportation  of
    15  school children in kindergarten through grade twelve, in connection with
    16  such  contract,  or (B) a subcontractor of a contractor that was a party
    17  to a contract with the board of education of a school  district  located
    18  in  a  city with at least one million inhabitants for the transportation
    19  of school children in kindergarten through grade twelve,  in  connection
    20  with such contract, and (ii) has been furloughed or become unemployed as
    21  a result of a loss of such contract, or a part of such contract, by such
    22  contractor  or  such  subcontractor,  or  as  a result of a reduction in
    23  service directed by such board of education  during  the  term  of  such
    24  contract.
    25    §  3.  Paragraph  c  of subdivision 14 of section 305 of the education
    26  law, as amended by chapter 15 of the laws of 2005, is amended to read as
    27  follows:
    28    c. Each board of education, or the  trustees,  of  a  school  district
    29  which  elected  or  elects  to  extend  one or more pupil transportation
    30  contracts may extend a contract in an amount which is in excess  of  the
    31  maximum increase allowed by use of the [CPI] ECI referenced in paragraph
    32  a  of this subdivision. Such excess amount shall not be greater than the
    33  sum of the following: (i) the sum of the actual cost of qualifying crim-
    34  inal history and driver licensing testing fees attributable  to  special
    35  requirements  for  drivers of school buses pursuant to articles nineteen
    36  and nineteen-A of the vehicle and traffic law plus the  actual  cost  of
    37  any  diagnostic  tests and physical performance tests that are deemed to
    38  be necessary by an examining physician or the chief  school  officer  to
    39  determine  whether an applicant to drive a school bus under the terms of
    40  the contract has the physical and mental ability  to  operate  a  school
    41  transportation  conveyance  and  to  satisfactorily  perform  the  other
    42  responsibilities of a school bus driver pursuant to regulations  of  the
    43  commissioner;  (ii) in a school district located in a city with at least
    44  one million inhabitants, the actual cost of clean air technology filters
    45  and Global Positioning  System  (GPS)  technology;  (iii)  in  a  school
    46  district  located  in a city with at least one million inhabitants, with
    47  respects only to any extension beginning in  fiscal  year  two  thousand
    48  five--two  thousand  six, the sum of the actual cost of providing school
    49  bus attendants including the actual  cost  of  criminal  history  record
    50  checks  for school bus attendant applicants and training and instruction
    51  for school bus attendants pursuant to  section  twelve  hundred  twenty-
    52  nine-d  of  the  vehicle and traffic law plus up to five percent of such
    53  cost for necessary administrative services; and (iv) the actual cost  of
    54  equipment or vehicle modification, or training required, by any state or
    55  local  legislation  or  regulation  promulgated or effective on or after
    56  June first, two thousand five. Such  costs  shall  be  approved  by  the
        A. 8019--C                          5
 
     1  commissioner  upon  documentation  provided  by  the school district and
     2  contractor as required by the commissioner.
     3    §  4. Subdivision 14 of section 305 of the education law is amended by
     4  adding a new paragraph g to read as follows:
     5    g. Notwithstanding the provisions of paragraphs a through  f  of  this
     6  subdivision  and  any regulation promulgated pursuant thereto, the board
     7  of education of a school district located in a city with  at  least  one
     8  million  inhabitants  and a contractor providing transportation services
     9  to such district for  school  children  in  kindergarten  through  grade
    10  twelve  may amend a contract with mutual consent for such transportation
    11  services, for such consideration as approved by such board of education,
    12  to include in such contract provisions for the retention  or  preference
    13  in  hiring  of  school  bus  workers  and for the preservation of wages,
    14  health, welfare and retirement benefits and  seniority  for  school  bus
    15  workers who are hired pursuant to such provisions for retention or pref-
    16  erence  in  hiring,  in  connection with such contracts. For purposes of
    17  this paragraph, "school bus worker" shall mean  an  operator,  mechanic,
    18  dispatcher  or attendant who: (1) was employed as of June thirtieth, two
    19  thousand ten or at any time thereafter by (i) a contractor  that  was  a
    20  party  to  a  contract  with the board of education of a school district
    21  located in a city with at least one million inhabitants for  the  trans-
    22  portation  of  school  children in kindergarten through grade twelve, in
    23  connection with such contract, or (ii) a subcontractor of  a  contractor
    24  that  was  a party to a contract with the board of education of a school
    25  district located in a city with at least one million inhabitants for the
    26  transportation of school children in kindergarten through grade  twelve,
    27  in  connection with such contract, and (2) has been furloughed or become
    28  unemployed as a result of a loss of such contract, or  a  part  of  such
    29  contract,  by such contractor or such subcontractor, or as the result of
    30  a reduction in service directed by such board of  education  during  the
    31  term of such contract.
    32    §  5.  Subdivision  (a)  of  section 1115 of the tax law is amended by
    33  adding a new paragraph 44 to read as follows:
    34    (44) School buses as such term  is  defined  in  section  one  hundred
    35  forty-two  of  the vehicle and traffic law, and parts, equipment, lubri-
    36  cants and fuel purchased and used in their operation.
    37    § 6. Separability.  If  any  item,  clause,  subparagraph,  paragraph,
    38  subdivision  or  section  of  this act shall be adjudged by any court of
    39  competent jurisdiction to be invalid, such judgment  shall  not  affect,
    40  impair or invalidate the remainder thereof, but shall be confined in its
    41  operation  to this item, clause, subparagraph, paragraph, subdivision or
    42  section thereof that was adjudged to be invalid.
    43    § 7. This act shall take effect immediately; provided,  however,  that
    44  the  provisions  of  section  five  of this act shall take effect on the
    45  first day of a quarterly sales tax period, as set forth  in  subdivision
    46  (b) of section 1136 of the tax law, next succeeding April 1, 2017.