Bill H.1153

HOUSE DOCKET, NO. 91153 FILED ON: 7/25/2009

HOUSE . . . . . . . . . . . . . . . No. 1153

The Commonwealth of Massachusetts

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In the Year Two Thousand Nine

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An Act Text of an amendment recommended by the committee on Ways and Means to the Senate Bill transferring county sheriffs to the Commonwealth (Senate, No. 2045).

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

By striking out all after the enacting clause and inserting in place thereof the following:

“SECTION 1. Section 17 of chapter 37 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

The sheriffs of the counties of Barnstable, Bristol, Norfolk, Plymouth and Suffolk and of the former counties of Berkshire, Essex, Franklin, Hampden, Hampshire, Middlesex and Worcester shall each receive a salary of $123,209. The sheriff of the county of Dukes shall receive a salary of $97,271. The sheriff of the county of Nantucket shall receive a salary of $71,332.

SECTION 2. Chapter 64D of the General Laws is hereby amended by striking out sections 11 to 13, inclusive, and inserting in place thereof the following 2 sections:-

Section 11. Except for Barnstable and Suffolk counties, there shall be established upon the books of each county of a transferred sheriff, the government of which county has not been abolished by chapter 34B or other law, a fund, maintained separate and apart from all other funds and accounts of each county, to be known as the Deeds Excise Fund.

Except for Barnstable and Suffolk counties, on the first day of each month, 15 per cent of the taxes collected in the county of a transferred sheriff under this chapter shall be transmitted to the Deeds Excise Fund for each county; provided, however, that an additional 30.552 per cent of said taxes collected in Nantucket county shall be transmitted to the Deeds Excise Fund on the first day of each month for said county through June 1, 2029; and, provided further that if in a fiscal year the dollar amount that equals 30.552 per cent of said taxes collected in Nantucket county exceeds $250,000, the amount in excess shall be transmitted to the General Fund. The remaining percentage of taxes collected under this chapter, including all taxes collected under this chapter in Barnstable and Suffolk counties and all counties the government of which has been abolished by chapter 34B or other law, but not including the additional excise authorized in section 2 of chapter 163 of the acts of 1988, shall be transmitted to and retained by the General Fund in accordance with section 10.

Section 12. (a) There shall be within the executive office for administration and finance a county government finance review board to consist of the secretary of administration and finance or his designee; the commissioner of revenue or his designee; a county treasurer annually selected by the Massachusetts Collectors and Treasurers Association; and the state auditor or his designee. The secretary of administration and finance or his designee shall serve as chairperson of the board.

(b) The annual or supplementary budget of a county shall not take effect until reviewed and approved by the board. Except for Barnstable and Suffolk counties, the board shall not approve a budget of a county unless it is satisfied that:

(1) the estimates of revenue are reasonable and adequate funding has been provided for all necessary county expenditures;

(2) of the 15 per cent deposited in the Deeds Excise Fund for each county from revenues derived under this chapter: (i) not more than 60 per cent of the deposits shall be disbursed and expended for meeting the costs of the operation and maintenance of the county; and (ii) not less than 40 per cent shall be disbursed and expended for the automation, modernization and operation of the registries of deeds; and

(3) with respect to funds appropriated for the purpose designated in subclause (ii) of clause (2) and which are not dedicated to the Deeds Excise Fund in each county under section 11, the submitted proposed budget shall provide a continuing amount of expenditure of not less than 102.5 per cent of the amount expended for that purpose in the preceding fiscal year.

In the case of Barnstable county, the board shall not approve a budget unless it is satisfied that the estimates of revenue are reasonable and that adequate funding has been provided for all necessary county expenditures.

(c) If a proposed budget is disapproved by the board, the county commissioners or a successor body shall, with the approval of the county advisory board, if applicable, and within 30 days of notification of disapproval of the proposed budget, resubmit a revised proposed budget to the board which addresses the board's concerns.

(d) The board shall develop guidelines for implementing this section.

(e) Every 36 months the board shall examine, study and certify that the percentage of taxes collected in the county of a transferred sheriff that is transmitted to the Deeds Excise Fund, established by section 11, is sufficient to sustain county operations.

SECTION 3. Notwithstanding any general or special law to the contrary, the offices of the Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk county sheriffs are hereby transferred to the commonwealth as provided in this act.

SECTION 4. Notwithstanding any general or special law to the contrary, all functions, duties and responsibilities of the office of a transferred sheriff pursuant to this act including, but not limited to, the operation and management of the county jail and house of correction, and any other statutorily authorized functions of that office, are hereby transferred from the county to the commonwealth.

SECTION 5. Notwithstanding any general or special law to the contrary, the government of Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk counties, except the office of county sheriff, shall retain all existing authority, functions and activities for all purposes including, but not limited to, the purposes established in chapters 34, 34A, 35 and 36 of the General Laws or as otherwise authorized by this act. This act shall not affect the existing county boundaries.

SECTION 6. Notwithstanding any general or special law to the contrary, all valid liabilities and debts of the office of a transferred sheriff which are in force on the effective date of this act shall be obligations of the commonwealth as of that date, except as may be otherwise provided in this act. All assets of the offices of a transferred sheriff on the effective date of this act shall become assets of the commonwealth, except as otherwise provided in this act.

SECTION 7. (a) Notwithstanding any general or special law to the contrary, all rights, title and interest in real and personal property, including those real property improved upon through construction overseen by the division of capital asset management and maintenance and paid with commonwealth funds and which are controlled by the office of a transferred sheriff on the effective date of this act including, without limitation, all correctional facilities and other buildings and improvements, the land on which they are situated and any fixtures, wind turbines, antennae, communication towers and associated structures and other communication devices located thereon or appurtenant thereto, shall be transferred to the commonwealth, except as otherwise provided in this act. This transfer of all buildings, lands, facilities, fixtures and improvements shall be subject to chapter 7 of the General Laws and the jurisdiction of the commissioner of capital asset management and maintenance as provided therein, except as otherwise provided in this act. The commonwealth shall take all necessary steps to ensure continued access, availability and service to any assets transferred to the commonwealth under this subsection, to a local or regional organization that currently uses such assets.

(b) Notwithstanding any general or special law to the contrary, if a transferred sheriff occupies part of a building or structure owned by a county, the county shall lease that part of the building or structure to the commonwealth under reasonable terms determined by the commissioner of the capital asset management and maintenance.

(c) Notwithstanding any general or special law to the contrary, the transfer under this section shall be effective and shall bind all persons, with or without notice, without any further action or documentation. Without derogating from the foregoing, the commissioner of capital asset management and maintenance may, from time to time, execute and record and file for registration with any registry of deeds or the land court, a certificate confirming the commonwealth's ownership of any interest in real property formerly controlled by the office of a transferred sheriff pursuant to this section.

(d) Notwithstanding the provisions of this section or sections 40E to 40I, inclusive, of chapter 7 of the General Laws to the contrary, in the event that the Dukes county jail and house of correction located at 149 Main Street in the town of Edgartown ceases to be used for public safety purposes and the commissioner of capital asset management and maintenance intends to sell said property, Dukes county shall first be offered to purchase said property for nominal consideration, and shall hold such first refusal option for the first 60 days after receipt of the commissioner’s notice of intent to sell said property, and upon the non-acceptance by Dukes county of any such offer, said property shall then be offered for sale by the commissioner pursuant to the provisions of said sections 40E to 40I, inclusive, of said chapter 7.

(e) This section shall not apply to the Plymouth County Farm located at Obery Street in the town of Plymouth, the land located at 24 Long Pond Road owned by Plymouth county and the so-called Wood Lot in the town of Plymouth.

(f) Notwithstanding any general or special law to the contrary, any correctional facility which is transferred under this section or transferred under section 6 of chapter 34B shall be deemed to be a state facility for the purpose of payment in lieu of taxes to the host municipality.

SECTION 8. Notwithstanding any general or special law to the contrary, once the commonwealth has refinanced any outstanding bonds of the Plymouth County Correctional Facility Corporation, said corporation shall be dissolved and its assets shall be transferred to the commonwealth; provided, however, that prior to said dissolution the commonwealth shall transfer from the reserve fund created pursuant to the trust agreement executed on February 16, 1999 between the Plymouth County Correctional Facility Corporation and the State Street Bank and Trust Company to the county any balance remaining in the reserve fund to which the county is entitled pursuant to section 3.5 of said trust agreement. The criminal detention facility constructed under chapter 425 of the acts of 1991 shall be transferred to the commonwealth. The revenue held by the corporation in the Repair and Replacement and Capital Improvement Accounts shall be transferred to the Plymouth sheriff’s Facility Maintenance Trust Account. The Plymouth sheriff shall make expenditures from this account only for the maintenance, repair and replacement of the sheriff’s facilities subject to approval by the commissioner of the department of capital asset management and maintenance.

SECTION 9. Notwithstanding any general or special law to the contrary, all leases and contracts of the office of a transferred sheriff which are in force on the effective date of this act shall be obligations of the commonwealth and the commonwealth shall have authority to exercise all rights and enjoy all interests conferred upon the county by those leases and contracts except as may be otherwise provided in this act.

SECTION 10. Notwithstanding any general or special law to the contrary, beginning in fiscal year 2010 and thereafter until terminated, Barnstable, Bristol, Dukes, Nantucket, Norfolk, and Plymouth counties shall appropriate and pay to their respective county retirement boards, and any other entities due payments, amounts equal to the minimum obligations to fund from their own revenues in fiscal year 2009 the operations of the office of the sheriff for the purpose of covering the unfunded county pension liabilities and other benefit liabilities of the retired sheriff's office employees that remain in the county retirement systems, as determined by the actuary of the public employee retirement administration commission. Pursuant to section 20 of chapter 59 of the General Laws, the state treasurer shall assess the city of Boston and remit to the State-Boston retirement system an amount equal to the minimum obligation of Suffolk county to fund from its own revenues in fiscal year 2009 the operations of the office of the sheriff. The secretary of administration and finance shall establish a plan for county governments to pay off these unfunded county pension liabilities and shall establish an amortization schedule to accomplish this task. These payments shall remain in effect for the duration of that amortization schedule, which shall not exceed the funding schedule established by the respective county retirement board. If the unfunded pension liability of retirees exceeds any county’s minimum obligation to fund operations from its own revenues as set forth in this section, the retirement system for such county may extend its pension funding schedule to the extent necessary to eliminate that excess unfunded pension liability. In the case of any such county, when the county has paid such unfunded pension liabilities in full, or the county has completed the amortization schedule as established under this section, whichever occurs first, the county’s obligation to make payments of its minimum obligations to fund its sheriff’s office operations, as determined under this section, shall terminate.

SECTION 11. Notwithstanding any general or special law to the contrary, any funds including, but not limited to county correctional funds and other sources of income and revenue, to the credit of the office of a transferred sheriff on June 30, 2009, shall be paid to the state treasurer, but the county treasurer may pay appropriate fiscal year 2009 sheriff's department obligations after June 30, 2009. Payment of obligations to be charged to the sheriff's fiscal year 2009 budget as approved by the county government finance review board shall be within that budget or shall be approved by the secretary of administration and finance.

SECTION 12. (a) Notwithstanding any general or special law to the contrary and except for all counties the governments of which have been abolished by chapter 34B or other law, revenues of the office of sheriff in Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk counties for civil process, inmate telephone and commissary funds, shall remain with the office of sheriff.

(b) Notwithstanding any general or special law to the contrary, in order to encourage innovation and enterprise, each sheriff's office shall annually confer with the house and senate committees on ways and means regarding that sheriff’s efforts to maximize and maintain grants, dedicated revenue accounts, revolving accounts, fee for service accounts and fees and payments from the federal, state and local governments and other such accounts and regarding which revenues shall remain with the sheriff's office.

(c) Notwithstanding any general or special law to the contrary, any sheriff who has developed a revenue source derived apart from the state treasury may retain that funding to address the needs of the citizens within that county.

(d) Notwithstanding any general or special law to the contrary, any unencumbered carry-forward deeds excise or other funds to the credit of the sheriff on June 30, 2009 shall be paid to the state treasurer.

(e) Notwithstanding any general or special law or county charter to the contrary, regional services and contracts for such services, including, but not limited to, regional communication centers and law enforcement support, shall continue until expired, terminated or revoked under the terms of the agreement or contract for such services.

SECTION 13 (a) Notwithstanding any general or special law to the contrary, all employees of the office of transferred sheriff, including those who on the effective date of this act hold permanent appointment in positions classified under chapter 31 of the General Laws or those who have tenure in their positions by reason of section 9A of chapter 30 of the General Laws or do not hold such tenure, are hereby transferred to that transferred sheriff as employees of the commonwealth, without interruption of service within the meaning of said section 9A of said chapter 30 or said chapter 31 and without reduction in compensation or salary grade.

(b) Notwithstanding any general or special law to the contrary, employees of the office of a transferred sheriff shall continue to retain their right to collectively bargain pursuant to chapter 150E of the General Laws and shall be considered sheriff’s office employees for the purposes of said chapter 150E.

(c) Notwithstanding any general or special law to the contrary, all petitions, requests, investigations and other proceedings duly brought before the office of a transferred sheriff or duly begun by that sheriff and pending on the effective date of this act, shall continue unabated and remain in force, but shall be assumed and completed by the office of a transferred sheriff.

(d) Notwithstanding any general or special law to the contrary, all orders, rules and regulations duly made and all approvals duly granted by a transferred sheriff which are in force on the effective date of this act, shall continue in force and shall thereafter be enforced until superseded, revised, rescinded or canceled in accordance with law by that sheriff.

(e) Notwithstanding any general or special law to the contrary, all books, papers, records, documents and equipment which, on the effective date of this act, are in the custody of a transferred sheriff shall be transferred to that sheriff.

(f) Notwithstanding any general or special law to the contrary, all duly existing contracts, leases and obligations of a transferred sheriff shall continue in effect. An existing right or remedy of any character shall not be lost or affected by this act.

SECTION 14. Notwithstanding any general or special law to the contrary, the rights of all employees of each office of a transferred sheriff shall continue to be governed by the terms of collective bargaining agreements, as applicable, subject to the exception provided for in section 19 of this act. If a collective bargaining agreement has expired on the transfer date, the terms and conditions of such agreement shall remain in effect until a successor agreement is ratified and funded. Notwithstanding the provisions of chapter 150E of the General Laws or any other general or special law or regulation to the contrary, employees of the office of a transferred sheriff without a collective bargaining agreement in effect on the transfer date shall not be transferred to the state retirement system until a successor collective bargaining agreement is ratified.

SECTION 15. Notwithstanding any general or special law to the contrary, a transferred sheriff in office on the effective date of this act shall become an employee of the commonwealth with salary to be paid by the commonwealth. The sheriff shall remain an elected official for the purposes of section 159 of chapter 54 of the General Laws. The sheriff shall operate pursuant to chapter 37 of the General Laws. The sheriff shall retain administrative and operational control over the office of the sheriff, the jail, the house of correction and any other occupied buildings controlled by a transferred sheriff upon the effective date of this act. The sheriff and sheriff’s office shall retain and operate under all established common law power and authority and consistent with chapters 126 and 127 of the General Laws and any other relevant General Laws.

SECTION 16. Notwithstanding any general or special law to the contrary, a transferred sheriff shall be considered an "employer" as that term is defined in section 1 of chapter 150E of the General Laws for the purposes of said chapter 150E. The sheriff shall also have power and authority as employer in all matters including, but not limited to, hiring, firing, promotion, discipline, work-related injuries and internal organization of the department.

SECTION 17. (a) Notwithstanding any general or special law or rule or regulation to the contrary, the sheriff, special sheriff, deputies, jailers, superintendents, deputy superintendents, assistant deputy superintendents, keepers, officers, assistants and other employees of the office of a transferred sheriff, employed on the effective date of this act in the discharge of their responsibilities set forth in section 24 of chapter 37 of the General Laws and section 16 of chapter 126 of the General Laws, shall be transferred to the commonwealth with no impairment of employment rights held on the effective date of this act, without interruption of service, without impairment of seniority, retirement or other rights of employees, without reduction in compensation or salary grade and without change in union representation. Any collective bargaining agreement in effect on the effective date of this act shall continue in effect and the terms and conditions of employment therein shall continue as if the employees had not been so transferred. Nothing in this section shall confer upon any employee any right not held on the effective date of this act or prohibit any reduction of salary, grade, transfer, reassignment, suspension, discharge layoff or abolition of position not prohibited before the effective date of this act. Such employees shall not be considered new employees for salary, wage, tax, health insurance, Medicare or any other federal or state purposes, but shall retain their existing start and hiring date, seniority and any other relevant employment status through the transfer.

(b) Notwithstanding any general or special law to the contrary, all demands, notices, citations, writs and precepts given by a sheriff, special sheriff, deputy, jailer, superintendent, deputy superintendent, assistant deputy superintendent, keeper, officer, assistant or other employee of the office of a transferred sheriff, as the case may be, on or before the effective date of this act, shall be valid and effective for all purposes unless otherwise revoked, suspended, rescinded, canceled or terminated.

(c) Notwithstanding any general or special law to the contrary, any enforcement activity imposed by a sheriff or special sheriff or by any deputies, jailers, superintendents, deputy superintendents, assistant deputy superintendents, keepers, officers, assistants or other employees of the office of a transferred sheriff before the effective date of this act shall be valid, effective and continuing in force according to the terms thereof for all purposes unless superseded, revised, rescinded or canceled.

(d) Notwithstanding any general or special law to the contrary, all petitions, hearings appeals, suits and other proceedings duly brought against and all petitions, hearings, appeals, suits, prosecutions and other legal proceedings begun by a sheriff, special sheriff, deputy, jailer, superintendent, deputy superintendent, assistant deputy superintendent, keeper, officer, assistant or the employee of the office of a transferred sheriff, as the case may be, which are pending on the effective date of this act, shall continue unabated and remain in force notwithstanding the passage of this act.

(e) Notwithstanding any general or special law to the contrary, all records maintained by a sheriff or special sheriff or by any deputies, jailers, superintendents, deputy superintendents, assistant deputy superintendents, keepers, officers, assistants and other employees of the office of a transferred sheriff on the effective date of this act shall continue to enjoy the same status in a court or administrative proceeding, whether pending on that date or commenced thereafter, as they would have enjoyed in the absence of the passage of this act.

SECTION 18. Notwithstanding any general or special law to the contrary, all officers and employees of the office of a transferred sheriff transferred to the service of the commonwealth shall be transferred with no impairment of seniority, retirement or other rights of employees, without reduction in compensation or salary grade and without change in union representation, except as otherwise provided in this act. Any collective bargaining agreement in effect for transferred employees on the effective date of this act shall continue as if the employees had not been so transferred until the expiration date of the collective bargaining agreement. Nothing in this section shall confer upon any employee any right not held on the effective date of this act, prohibit any reduction of salary, grade, transfer, reassignment, suspension, discharge, layoff or abolition of position not prohibited before that date.

SECTION 19. (a) Notwithstanding any general or special law to the contrary, employees or retired employees of the office of a transferred sheriff and the surviving spouses of retired employees of the office of a transferred sheriff who are eligible for group insurance coverage as provided in chapter 32B of the General Laws or who are insured under said chapter 32B, shall have that eligibility and coverage transferred to the group insurance commission effective 4 months after the effective date of this act and those employees shall cease to be eligible or insured under said chapter 32B; provided, however, that, notwithstanding the provisions of chapter 150E of the General Laws or any other law or regulation to the contrary, employees, retired employees and the surviving spouses of retired employees of the office of a transferred sheriff without a collective bargaining agreement in effect shall not be transferred to the group insurance commission until a successor collective bargaining agreement is ratified and funded. These employees shall not be considered to be new employees. The group insurance commission shall provide uninterrupted coverage for group life and accidental death and dismemberment insurance and group general or blanket insurance providing hospital, surgical, medical, dental and other health insurance benefits to the extent authorized under chapter 32A of the General Laws. Employees who were covered by a collective bargaining agreement on the effective date of this act shall continue to receive the group insurance benefits required by their respective collective bargaining agreements until a successor agreement is ratified and funded.

(b) Notwithstanding any general or special law to the contrary, the human resources division of the executive office for administration and finance shall assume the obligations of the office of a transferred sheriff to employees who become state employees and who are covered under a health and welfare trust fund agreement established under section 15 of chapter 32B of the General Laws pursuant to a collective bargaining agreement until the expiration date of the collective bargaining agreement.

SECTION 20. Notwithstanding chapter 32 of the General Laws or any other general or special law to the contrary, the retirement system in the county of a transferred sheriff shall continue pursuant to this section and shall be managed by the retirement board as provided in this section. Employees of a transferred sheriff who retired on or before the effective date of this act shall be members of the county retirement system, which shall pay the cost of benefits annually to such retired county employees and their survivors. The annuity savings funds of the employees of transferred sheriffs who become state employees pursuant to this act shall be transferred from that county retirement system to the state retirement system, which shall thereafter be responsible for those employees, subject to the laws applicable to employees whose transfer from one governmental unit to another results in the transfer from one retirement system to another, except for paragraph (c) of subdivision (8) of section 3 of said chapter 32. The value of said annuity savings funds shall be determined based on January 1, 2009 valuations. All other provisions governing the retirement systems of the counties of Barnstable, Bristol, Dukes, Nantucket, Norfolk, Plymouth and Suffolk shall remain in effect.

SECTION 21. Notwithstanding any general or special law to the contrary, county commissioners, county sheriffs, county treasurers, county retirement systems, the State-Boston retirement system and all executive branch agencies and officers shall cooperate with the secretary of administration and finance in effecting the orderly transfer of the county sheriffs to the commonwealth. The secretary may establish working groups as considered appropriate to assist in the implementation of the transfer.

SECTION 22. Notwithstanding any general or special law to the contrary, there shall be a special commission to consist of 10 members: 1 of whom shall be a member of the Massachusetts Sheriffs Association; 1 of whom shall be a county treasurer as appointed by the Massachusetts Collectors and Treasurers Association; 2 of whom shall be appointed by the speaker of the house of representatives; 1 of whom shall be appointed by the minority leader of the house of representatives; 2 of whom shall be appointed by the president of the senate; 1 of whom shall be appointed by the minority leader of the senate; and 2 of whom shall be appointed by the governor for the purpose of making an investigation and study relative to the reorganization or consolidation of sheriffs’ offices, to make formal recommendations regarding such reorganization or consolidation and to recommend legislation, if any, to effectuate such recommendations relating to the reorganization, consolidation, operation, administration, regulation, governance and finances of sheriffs’ offices.

The chairman of the commission shall be selected by its members. Section 2A of chapter 4 of the General Laws shall not apply to said commission. So long as a member of the commission discloses, in writing, to the state ethics commission any financial interest as described in sections 6, 7 or 23 of chapter 268A of the General Laws which may affect the member’s work on the commission, the member shall not be deemed to have violated said sections 6, 7 or 23 of said chapter 268A. Four members of the commission shall constitute a quorum and a majority of all members present and voting shall be required for any action voted by the commission including, but not limited to, voting on formal recommendations or recommended legislation.

The commission, as part of its review, analysis and study and in making such recommendations regarding the reorganization, consolidation, operation, administration, regulation, governance and finances of sheriffs’ offices, shall focus on and consider the following issues, proposals and impacts:

(1) the possible consolidation, elimination or realignment of certain sheriffs’ offices and the potential cost savings and other efficiencies that may be achieved by eliminating, consolidating and realigning certain sheriffs’ offices to achieve pay parity;

(2) any constitutional, statutory or regulatory changes or amendments that may be required in order to effectuate any such consolidation or reorganization;

(3) the reallocation of duties and responsibilities of sheriffs’ offices as a consequence of any such consolidation or reorganization;

(4) the best management practices associated with the current use of civil process funds, including the amount of civil process funds collected by each county sheriff and the actual disposition of said funds currently, and, in the event of consolidation, realignment, elimination or reorganization, the collection and use of civil process fees in the future; and

(5) the consideration of any other issues, studies, proposals or impacts that, in the judgment of the commission, may be relevant, pertinent or material to the study, analysis and review of the commission.