Clarifies the application of the accountability standards, open meetings law and freedom of information requirements to local development corporations as defined in section two of the public authorities law.
STATE OF NEW YORK
________________________________________________________________________
7855
IN SENATE
February 26, 2020
___________
Introduced by Sen. LIU -- read twice and ordered printed, and when
printed to be committed to the Committee on Corporations, Authorities
and Commissions
AN ACT to amend the public authorities law, the executive law and the
public officers law, in relation to clarifying the application of the
accountability standards, open meetings law and freedom of information
requirements to local development corporations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 2 of section 2800 of the
2 public authorities law, as amended by chapter 506 of the laws of 2009,
3 is amended to read as follows:
4 (a) Every local authority, [continued or created by this chapter or
5 any other chapter of the laws of the state of New York] pursuant to
6 section two of this chapter shall submit to the chief executive officer,
7 the chief fiscal officer, the chairperson of the legislative body of the
8 local government or local governments and the authorities budget office,
9 within ninety days after the end of its fiscal year, a complete and
10 detailed report or reports setting forth: (1) its operations and accom-
11 plishments; (2) its financial reports, including (i) audited financials
12 in accordance with all applicable regulations and following generally
13 accepted accounting principles as defined in subdivision ten of section
14 two of the state finance law, (ii) grants and subsidy programs, (iii)
15 operating and financial risks, (iv) current ratings if any, of its bonds
16 issued by recognized municipal bond rating agencies and notice of chang-
17 es in such ratings, and (v) long-term liabilities, including leases and
18 employee benefit plans; (3) its mission statement and measurements
19 including its most recent measurement report; (4) a schedule of its
20 bonds and notes outstanding at the end of its fiscal year, together with
21 a statement of the amounts redeemed and incurred during such fiscal year
22 as part of a schedule of debt issuance that includes the date of issu-
23 ance, term, amount, interest rate and means of repayment. Additionally,
24 the debt schedule shall also include all refinancings, calls,
25 refundings, defeasements and interest rate exchange or other such agree-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14773-01-0
S. 7855 2
1 ments, and for any debt issued during the reporting year, the schedule
2 shall also include a detailed list of costs of issuance for such debt;
3 (5) a compensation schedule in addition to the report described in
4 section twenty-eight hundred six of this title that shall include, by
5 position, title and name of the person holding such position or title,
6 the salary, compensation, allowance and/or benefits provided to any
7 officer, director or employee in a decision making or managerial posi-
8 tion of such authority whose salary is in excess of one hundred thousand
9 dollars; (5-a) biographical information, not including confidential
10 personal information, for all directors and officers and employees for
11 whom salary reporting is required under subparagraph five of this para-
12 graph; (6) the projects undertaken by such authority during the past
13 year; (7) a listing and description, in addition to the report required
14 by paragraph a of subdivision three of section twenty-eight hundred
15 ninety-six of this article of all real property of such authority having
16 an estimated fair market value in excess of fifteen thousand dollars
17 that the authority acquires or disposes of during such period. The
18 report shall contain the price received or paid by the authority and the
19 name of the purchaser or seller for all such property sold or bought by
20 the authority during such period; (8) such authority's code of ethics;
21 (9) an assessment of the effectiveness of its internal control structure
22 and procedures; (10) a copy of the legislation that forms the statutory
23 basis of the authority; (11) a description of the authority and its
24 board structure, including (i) names of committees and committee
25 members, (ii) lists of board meetings and attendance, (iii) descriptions
26 of major authority units, subsidiaries, (iv) number of employees, and
27 (v) organizational chart; (12) its charter, if any, and by-laws; (13) a
28 listing of material changes in operations and programs during the
29 reporting year; (14) at a minimum a four-year financial plan, including
30 (i) a current and projected capital budget, and (ii) an operating budget
31 report, including an actual versus estimated budget, with an analysis
32 and measurement of financial and operating performance; (15) its board
33 performance evaluations provided, however, that such evaluations shall
34 not be subject to disclosure under article six of the public officers
35 law; (16) a description of the total amounts of assets, services or both
36 assets and services bought or sold without competitive bidding, includ-
37 ing (i) the nature of those assets and services, (ii) the names of the
38 counterparties, and (iii) where the contract price for assets purchased
39 exceeds fair market value, or where the contract price for assets sold
40 is less than fair market value, a detailed explanation of the justifica-
41 tion for making the purchase or sale without competitive bidding, and a
42 certification by the chief executive officer and chief financial officer
43 of the public authority that they have reviewed the terms of such
44 purchase or sale and determined that it complies with applicable law and
45 procurement guidelines; and (17) a description of any material pending
46 litigation in which the authority is involved as a party during the
47 reporting year, except that no provider of medical services need
48 disclose information about pending malpractice claims beyond the exist-
49 ence of such claims.
50 § 2. Subdivision 2 of section 2801 of the public authorities law, as
51 amended by chapter 506 of the laws of 2009, is amended to read as
52 follows:
53 2. Local authorities. For the local authority fiscal year ending on or
54 after December thirty-first, two thousand seven and annually thereafter,
55 every local authority [heretofore or hereafter continued or created by
56 this chapter or any other chapter of the laws of the state of New York],
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1 pursuant to section two of this chapter, shall submit to the chief exec-
2 utive officer, the chief fiscal officer, the chairperson of the legisla-
3 tive body of the local government or governments and the authorities
4 budget office for their information, annually not more than ninety days
5 and not less than sixty days before the commencement of its fiscal year,
6 in the form submitted to its members or trustees, budget information on
7 operations and capital construction setting forth the estimated receipts
8 and expenditures for the next fiscal year and the current fiscal year,
9 and the actual receipts and expenditures for the last completed fiscal
10 year.
11 § 3. Subdivision 1 of section 2895 of the public authorities law, as
12 added by chapter 766 of the laws of 2005, is amended to read as follows:
13 1. "Contracting officer" shall mean the officer or employee of a
14 public authority or local authority pursuant to section two of this
15 chapter who shall be appointed by resolution of the board of the public
16 or local authority to be responsible for the disposition of property.
17 § 4. Section 2896 of the public authorities law, as added by chapter
18 766 of the laws of 2005 and subdivision 3 as amended by chapter 506 of
19 the laws of 2009, is amended to read as follows:
20 § 2896. Duties of public and local authorities with respect to the
21 disposal of property. 1. Every public and local authority, as defined in
22 section two of this chapter, shall adopt by resolution comprehensive
23 guidelines which shall (a) detail the public or local authority's opera-
24 tive policy and instructions regarding the use, awarding, monitoring and
25 reporting of contracts for the disposal of property, and (b) designate a
26 contracting officer who shall be responsible for the public or local
27 authority's compliance with, and enforcement of, such guidelines. Such
28 guidelines shall be consistent with, and shall require the public or
29 local authority's contracting activities to comply with this section,
30 the [authorities] authority's enabling legislation and any other appli-
31 cable law for the disposal of property, except that such guidelines may
32 be stricter than the provisions of this section, the authorities enabl-
33 ing legislation and any other applicable law for the disposal of proper-
34 ty if the public or local authority determines that additional safe-
35 guards are necessary to assure the integrity of its disposition
36 activities. Guidelines approved by the public or local authority shall
37 be annually reviewed and approved by the governing body of the public or
38 local authority. On or before the thirty-first day of March in each
39 year, the public or local authority shall file with the comptroller a
40 copy of the guidelines most recently reviewed and approved by the public
41 or local authority, including the name of the public or local authori-
42 ty's designated contracting officer. At the time of filing such guide-
43 lines with the comptroller, every public or local authority shall also
44 post such guidelines on the public or local authority's internet
45 website. If the local authority does not maintain its own website, then
46 the guidelines shall be posted on the website of the locality which
47 created such authority. Guidelines posted on the public or local author-
48 ity's internet website shall be maintained on such website at least
49 until the procurement guidelines for the following year are posted on
50 such website.
51 2. Each public or local authority shall:
52 a. maintain adequate inventory controls and accountability systems for
53 all property under its control;
54 b. periodically inventory such property to determine which property
55 shall be disposed of;
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1 c. produce a written report of such property in accordance with subdi-
2 vision three of this section;
3 d. transfer or dispose of such property as promptly as possible in
4 accordance with section twenty-eight hundred ninety-seven of this title.
5 3. a. Each public or local authority shall publish, not less frequent-
6 ly than annually, a report listing all real property of the public or
7 local authority. Such report shall include a list and full description
8 of all real and personal property disposed of during such period. The
9 report shall contain the price received by the public or local authority
10 and the name of the purchaser for all such property sold by [the] such
11 public or local authority during such period.
12 b. The public authority shall deliver copies of such report to the
13 comptroller, the director of the budget, the commissioner of general
14 services, the legislature and the authorities budget office.
15 c. The local authority shall deliver copies of such report to the
16 comptroller, the chief executive officer of the locality, and the chair-
17 person of the legislative body of the local government.
18 § 5. Section 2897 of the public authorities law, as added by chapter
19 766 of the laws of 2005, subdivision 3 and paragraphs c and d of subdi-
20 vision 6 as amended and subdivision 7 as added by chapter 506 of the
21 laws of 2009 and paragraph e of subdivision 6 as added by chapter 156 of
22 the laws of 2012, is amended to read as follows:
23 § 2897. Disposal of public or local authority property. 1. Supervision
24 and direction. Except as otherwise provided in this section, the
25 contracting officer designated by each public or local authority shall
26 have supervision and direction over the disposition of property of such
27 public or local authority.
28 2. Custody and control. (a) The custody and control of the property of
29 a public authority, pending its disposition, and the disposal of such
30 property, shall be performed by the public authority in possession ther-
31 eof or by the commissioner of general services when so authorized under
32 this section.
33 (b) The custody and control of the property of a local authority,
34 pending its disposition, and the disposal of such property shall be
35 performed by the local authority in possession thereof.
36 3. Method of disposition. Subject to section twenty-eight hundred
37 ninety-six of this title, any public or local authority may dispose of
38 property for not less than the fair market value of such property by
39 sale, exchange, or transfer, for cash, credit, or other property, with
40 or without warranty, and upon such other terms and conditions as the
41 contracting officer deems proper, and it may execute such documents for
42 the transfer of title or other interest in property and take such other
43 action as it deems necessary or proper to dispose of such property under
44 the provisions of this section. Provided, however, that no disposition
45 of real property, or any interest in real property, shall be made unless
46 an appraisal of the value of such property has been made by an independ-
47 ent appraiser and included in the record of the transaction, and,
48 provided further, that no disposition of any other property, which
49 because of its unique nature or the unique circumstances of the proposed
50 transaction is not readily valued by reference to an active market for
51 similar property, shall be made without a similar appraisal.
52 4. Sales by the commissioner of general services. When it shall be
53 deemed advantageous to the state, any public authority may enter into an
54 agreement with the commissioner of general services where under such
55 commissioner may dispose of property of such public authority under
56 terms and conditions agreed to by the public authority and the commis-
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1 sioner of general services. In disposing of any such property of a
2 public authority, the commissioner of general services shall be bound by
3 the terms of this title and references to the contracting officer shall
4 be deemed to refer to such commissioner.
5 5. Validity of deed, bill of sale, lease, or other instrument. A deed,
6 bill of sale, lease, or other instrument executed by or on behalf of any
7 public or local authority, purporting to transfer title or any other
8 interest in property of a public or local authority under this title
9 shall be conclusive evidence of compliance with the provisions of this
10 title insofar as concerns title or other interest of any bona fide gran-
11 tee or transferee who has given valuable consideration for such title or
12 other interest and has not received actual or constructive notice of
13 lack of such compliance prior to the closing.
14 6. Bids for disposal; advertising; procedure; disposal by negotiation;
15 explanatory statement. a. All disposals or contracts for disposal of
16 property of a public or local authority made or authorized by the
17 contracting officer shall be made after publicly advertising for bids
18 except as provided in paragraph c of this subdivision.
19 b. Whenever public advertising for bids is required under paragraph a
20 of this subdivision:
21 (i) the advertisement for bids shall be made at such time prior to the
22 disposal or contract, through such methods, and on such terms and condi-
23 tions as shall permit full and free competition consistent with the
24 value and nature of the property;
25 (ii) all bids shall be publicly disclosed at the time and place stated
26 in the advertisement; and
27 (iii) the award shall be made with reasonable promptness by notice to
28 the responsible bidder whose bid, conforming to the invitation for bids,
29 will be most advantageous to the state or the locality, price and other
30 factors considered; provided, that all bids may be rejected when it is
31 in the public interest to do so.
32 c. Disposals and contracts for disposal of property may be negotiated
33 or made by public auction without regard to paragraphs a and b of this
34 subdivision but subject to obtaining such competition as is feasible
35 under the circumstances, if:
36 (i) the personal property involved has qualities separate from the
37 utilitarian purpose of such property, such as artistic quality, antiqui-
38 ty, historical significance, rarity, or other quality of similar effect,
39 that would tend to increase its value, or if the personal property is to
40 be sold in such quantity that, if it were disposed of under paragraphs a
41 and b of this subdivision, would adversely affect the state or local
42 market for such property, and the estimated fair market value of such
43 property and other satisfactory terms of disposal can be obtained by
44 negotiation;
45 (ii) the fair market value of the property does not exceed fifteen
46 thousand dollars;
47 (iii) bid prices after advertising therefor are not reasonable, either
48 as to all or some part of the property, or have not been independently
49 arrived at in open competition;
50 (iv) the disposal will be to the state or any political subdivision,
51 and the estimated fair market value of the property and other satisfac-
52 tory terms of disposal are obtained by negotiation; or
53 (v) under those circumstances permitted by subdivision seven of this
54 section; or
55 (vi) such action is otherwise authorized by law.
S. 7855 6
1 d. (i) An explanatory statement shall be prepared of the circumstances
2 of each disposal by negotiation of:
3 (A) any personal property which has an estimated fair market value in
4 excess of fifteen thousand dollars;
5 (B) any real property that has an estimated fair market value in
6 excess of one hundred thousand dollars, except that any real property
7 disposed of by lease or exchange shall only be subject to clauses (C)
8 and (D) of this subparagraph;
9 (C) any real property disposed of by lease, if the estimated annual
10 rent over the term of the lease is in excess of fifteen thousand
11 dollars;
12 (D) any real property or real and related personal property disposed
13 of by exchange, regardless of value, or any property any part of the
14 consideration for which is real property.
15 (ii) Each such statement shall be transmitted to the persons entitled
16 to receive copies of the report required under section twenty-eight
17 hundred ninety-six of this title not less than ninety days in advance of
18 such disposal, and a copy thereof shall be preserved in the files of the
19 public authority making such disposal.
20 e. Disposals and contracts for disposal of real property by the canal
21 corporation may be made by negotiated sale rather than public auction
22 provided that all of the following conditions have been satisfied:
23 (i) The canal corporation has determined that: such real property is
24 no longer necessary or useful to the purposes of the canal corporation;
25 disposal of such real property complies with all applicable provisions
26 of the canal law; and disposal of such real property is in the best
27 interest of the canal corporation;
28 (ii) An appraisal of the fair market value of such property has been
29 made by an independent appraiser and included in the record of the tran-
30 saction;
31 (iii) The fair market value of such real property is greater than
32 fifteen thousand dollars but not greater than seventy-five thousand
33 dollars;
34 (iv) Such real property was improved prior to April first, nineteen
35 hundred ninety-two under a municipal permit or a permit issued pursuant
36 to section one hundred of the canal law, thereby creating an encroach-
37 ment on canal corporation real property;
38 (v) The purchaser of such real property is, or will be, the owner of
39 the improvement that either fully or partially encroaches on canal
40 corporation real property; and
41 (vi) The consideration paid for such real property will be not less
42 than the fair market value of the real property exclusive of the value,
43 fair market or otherwise, of the encroaching improvements.
44 7. Disposal of property for less than fair market value. a. No asset
45 owned, leased or otherwise in the control of a public or local authority
46 may be sold, leased, or otherwise alienated for less than its fair
47 market value except if:
48 (i) the transferee is a government or other public entity, and the
49 terms and conditions of the transfer require that the ownership and use
50 of the asset will remain with the government or any other public entity;
51 (ii) the purpose of the transfer is within the purpose, mission or
52 governing statute of the public or local authority; or
53 (iii) in the event a public or local authority seeks to transfer an
54 asset for less than its fair market value to other than a governmental
55 entity, which disposal would not be consistent with the authority's
56 mission, purpose or governing statutes, such authority shall provide
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1 written notification thereof to the governor, the speaker of the assem-
2 bly, and the temporary president of the senate, and such proposed trans-
3 fer shall be subject to denial by the governor, the senate, or the
4 assembly. Denial by the governor shall take the form of a signed
5 certification by the governor. Denial by either house of the legislature
6 shall take the form of a resolution by such house. The governor and each
7 house of the legislature shall take any such action within sixty days of
8 receiving notification of such proposed transfer during the months of
9 January through June, provided that if the legislature receives notifi-
10 cation of a proposed transfer during the months of July through Decem-
11 ber, the legislature may take any such action within sixty days of Janu-
12 ary first of the following year. If no such resolution or certification
13 is performed within sixty days of such notification of the proposed
14 transfer to the governor, senate, and assembly, the public authority may
15 effectuate such transfer. Provided, however, that with respect to a
16 below market transfer by a local authority that is not within the
17 purpose, mission or governing statute of the local authority, if the
18 governing statute provides for the approval of such transfer by the
19 executive and legislative branches of the political subdivision in which
20 such local authority resides, and the transfer is of property obtained
21 by the authority from that political subdivision, then such approval
22 shall be sufficient to permit the transfer.
23 b. In the event a below fair market value asset transfer is proposed,
24 the following information must be provided to the authority board and
25 the public:
26 (i) a full description of the asset;
27 (ii) an appraisal of the fair market value of the asset and any other
28 information establishing the fair market value sought by the board;
29 (iii) a description of the purpose of the transfer, and a reasonable
30 statement of the kind and amount of the benefit to the public resulting
31 from the transfer, including but not limited to the kind, number,
32 location, wages or salaries of jobs created or preserved as required by
33 the transfer, the benefits, if any, to the communities in which the
34 asset is situated as are required by the transfer;
35 (iv) a statement of the value to be received compared to the fair
36 market value;
37 (v) the names of any private parties participating in the transfer,
38 and if different than the statement required by subparagraph (iv) of
39 this paragraph, a statement of the value to the private party; and
40 (vi) the names of other private parties who have made an offer for
41 such asset, the value offered, and the purpose for which the asset was
42 sought to be used.
43 c. Before approving the disposal of any property for less than fair
44 market value, the board of an authority shall consider the information
45 described in paragraph b of this subdivision and make a written determi-
46 nation that there is no reasonable alternative to the proposed below-
47 market transfer that would achieve the same purpose of such transfer.
48 § 6. Section 51 of the executive law, as added by chapter 766 of the
49 laws of 2005, is amended to read as follows:
50 § 51. Jurisdiction. This article shall, subject to the limitations
51 contained herein, confer upon the office of the state inspector general,
52 jurisdiction over all covered agencies. For the purposes of this article
53 "covered agency" shall include all executive branch agencies, depart-
54 ments, divisions, officers, boards and commissions, public and local
55 authorities, as defined in section two of the public authorities law
56 (other than multi-state or multi-national authorities), and public bene-
S. 7855 8
1 fit corporations, the heads of which are appointed by the governor and
2 which do not have their own inspector general by statute. Wherever a
3 covered agency is a board, commission, a public authority or public
4 benefit corporation, the head of the agency is the chairperson thereof.
5 § 7. Subdivision 3 of section 86 of the public officers law, as added
6 by chapter 933 of the laws of 1977, is amended to read as follows:
7 3. "Agency" means any state or municipal department, board, bureau,
8 division, commission, committee, public or local authority (as defined
9 in section two of the public authorities law), public corporation, coun-
10 cil, office or other governmental entity performing a governmental or
11 proprietary function for the state or any one or more municipalities
12 thereof, except the judiciary or the state legislature.
13 § 8. Subdivision 2 of section 102 of the public officers law, as
14 amended by chapter 704 of the laws of 1979 and such section as renum-
15 bered by chapter 652 of the laws of 1983, is amended to read as follows:
16 2. "Public body" means any entity, for which a quorum is required in
17 order to conduct public business and which consists of two or more
18 members, performing a governmental function for the state or for an
19 agency or department thereof, or for a public corporation as defined in
20 section sixty-six of the general construction law, or a local authority
21 as defined by section two of the public authorities law, or committee or
22 subcommittee or other similar body of such public body.
23 § 9. This act shall take effect on the one hundred twentieth day after
24 it shall have become a law. Effective immediately, the addition, amend-
25 ment and/or repeal of any rule or regulation necessary for the implemen-
26 tation of this act on its effective date are authorized to be made and
27 completed on or before such effective date.