Bill H.4618

HOUSE DOCKET, NO. 94618 FILED ON: 4/14/2010

HOUSE . . . . . . . . . . . . . . . No. 4618

The Commonwealth of Massachusetts

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In the Year Two Thousand Ten

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An Act relative to municipal relief..

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

SECTION 1. Section 1 of chapter 32 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the word “may”, in line 488, and inserting in place thereof the following word:- shall.

SECTION 2. Paragraph (f) of subdivision (3) of section 21 of said chapter 32, as so appearing, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

An actuarial valuation of each system shall be conducted biennially, and experience investigations shall be conducted every 6 years. The first such valuation shall be completed as of January 1, 2011 or as of January 1 of the third year following the last actuarial valuation of the system, if earlier. Actuarial valuation reports and experience studies shall be conducted in such manner as the commissioner of administration, upon advice of the actuary, shall consider appropriate.

SECTION 3. Subdivision (1) of section 22D of said chapter 32, as amended by section 18 of chapter 21 of the acts of 2009, is hereby further amended by inserting after the first sentence the following sentence:- A funding schedule established under this section shall provide that the payment in any year of the schedule is no less than 95 per cent of the amount appropriated in the previous fiscal year.

SECTION 4. Said chapter 32 is hereby further amended by inserting after section 22E the following section:-

Section 22F. (a) Systems, other than the state employees’ retirement system and the teachers’ retirement system, which conduct an actuarial valuation of the retirement system as of January 1, 2009 or later, may establish a revised retirement system funding schedule, subject to the approval of the actuary, which reduces the unfunded actuarial liability of the system to zero on or before June 30, 2040 as long as it satisfies the following conditions:

(1) The payment in any year under the revised schedule or any subsequent schedule shall not be less than the payment in any prior fiscal year under the then current schedule until the system is fully funded.

(2) The increase in the amortization component of the appropriations required by the schedule from year to year shall not exceed 4 per cent and shall be designed so that the funding schedule and any updates to it shall reduce the unfunded actuarial liability of the system to zero on or before June 30, 2040.

(b) If an updated actuarial valuation allows for the development of a revised schedule with reduced payments, the revised schedule shall be adjusted to reduce the unfunded liability of the system to zero by an earlier date to the extent required to ensure that the appropriation required for a particular year under the new schedule shall not be less than the amount identified for that year under the prior schedule established under this section.

(c) If a schedule established under this section would result in an appropriation in the first fiscal year of the schedule that is greater than 8 per cent more than the appropriation in the previous fiscal year, the requirement of paragraph (2) of subsection (a) may be adjusted with the approval of the public employee retirement administration commission.

(d) In any year following the first 10 years of adoption of the revised schedule, additional unfunded liability resulting from losses due to experience or assumption changes shall be amortized over a fixed period not to exceed 20 years. In any schedule effective in a year following a year in which the retirement system has an investment loss in excess of 20 per cent, the actuary may extend the amortization period for losses resulting from investment experience in that year by not more than 10 years.

SECTION 5. Section 3 of chapter 40 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 4, the word "ten" and inserting in place thereof the following figure:- 30.

SECTION 6. Said chapter 40 is hereby amended by inserting after section 4I the following 2 sections:-

Section 4J. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

"Agency", the Massachusetts emergency management agency.

"Agreement", the statewide public safety mutual aid agreement established in subsection (b).

"Authorized representative", in the case of a city or town, the mayor, city manager, town manager, town administrator, executive secretary, police chief or on-duty shift commander of the police department, fire chief or on-duty shift commander of the fire department, health director or chairperson of the board of health or the emergency management director. In the case of a governmental unit that is not a city or town, the authorized representative shall be the chief executive officer or his designee.

"Employee", a person employed full time or part time by a governmental unit.

"Governmental unit", a city, town, county, regional transit authority established under chapter 161B, water or sewer commission or district established under the provisions of chapter 40N or pursuant to a special law, fire district, regional health district established under the provisions of chapter 111, a regional school district or law enforcement council.

"Incident command system", the standardized national incident management system that establishes an on-scene management system of procedures for controlling personnel, facilities, equipment and communications from different agencies at the scene of an emergency or other event for which mutual aid assistance is provided.

"Law enforcement council", a non-profit corporation comprised of municipal police chiefs and other law enforcement agencies whose purpose is to provide: (i) mutual aid to its members pursuant to mutual aid agreements; (ii) mutual aid or requisitions for aid to non-members consistent with section 8G or section 99 of chapter 41; and (iii) enhanced public safety by otherwise sharing resources and personnel.

"Mutual aid assistance", cross-jurisdictional provision of emergency services, materials or facilities from one party to another when existing resources are, or may be, inadequate.

"Party", a governmental unit that has joined the agreement.

"Public safety incident", an event, emergency or natural or manmade disaster, that threatens or causes harm to public health, safety or welfare and that exceeds, or reasonably may be expected to exceed, the response or recovery capabilities of any governmental unit. An event or emergency shall include, but not be limited to, technological hazards, planned events, civil unrest, health related events and emergencies, acts of terrorism and trainings and exercises that test and simulate the ability to manage, respond to or recover from any of these events.

"Requesting party", a party that requests aid or assistance from another party pursuant to the agreement.

"Sending party", a party that renders aid or assistance to another party under the agreement.

(b) There shall be a statewide public safety mutual aid agreement to create a framework for the provision of mutual aid assistance among the parties to the agreement in the case of a public safety incident. The assistance to be provided under the agreement shall include, but not be limited to, fire service, law enforcement, emergency medical services, transportation, communications, public works, engineering, building inspection, planning and information assistance, resource support, public health, health and medical services, search and rescue and any other resource, equipment or personnel that a party to the agreement may request or provide in anticipation of, or in response to, a public safety incident.

(c) (1) (i) If a city or town wishes to join the agreement, the mayor in the case of a city, the city manager in the case of a Plan D or Plan E city, or the town manager, town administrator or chair of the board of selectmen upon approval by a majority vote of the board of selectmen, may act on behalf of the city or town to join the agreement by notifying the director of the agency in writing. The municipality shall be a party to the agreement 30 days after receipt by the agency of the written notification.

(ii) If a city or town has joined the agreement but wishes to opt out of the agreement, the mayor in the case of a city, the city manager in the case of a Plan D or Plan E city, or the town manager, town administrator or chair of the board of selectmen upon approval by a majority vote of the board of selectmen in the case of a town, may act on behalf of the city or town to opt out of the agreement by notifying the agency in writing. The removal of the municipality from the agreement shall take effect 10 days after receipt by the agency of the written notification.

(2) (i) If a governmental unit that is not a city or town wishes to join the agreement, the chief executive officer of the governmental unit may act on its behalf to join the agreement by notifying the director of the agency in writing. The governmental unit shall be a party to the agreement 30 days after receipt by the agency of the written notification.

(ii) If a governmental unit that is not a city or town has joined the agreement but wishes to opt out of the agreement, the chief executive officer of the governmental unit may act on its behalf to opt out of the agreement by notifying the agency in writing. The removal of the municipality from the agreement shall take effect 10 days after receipt by the agency of the written notification.

(d) A request by a party to receive mutual aid assistance under the agreement shall be made by an authorized representative of the requesting party and must be communicated to an authorized representative of the sending party or to the agency. A request may be communicated orally or in writing. If communicated orally, the requesting party shall reduce the request to writing and deliver it to the sending party or to the agency at the earliest possible date, but no later than 72 hours after making the oral request.

A party to the agreement may request mutual aid assistance during, in anticipation of or as a result of a public safety incident.

An oral or written request for mutual aid assistance under the agreement shall include the following information: (i) a description of the public safety incident; (ii) the nature, type and amount of personnel, equipment, materials, supplies or other resources being requested; (iii) the manner in which the resources will be used and deployed; (vi) a reasonable estimate of the length of time the resources will be needed; (v) the location to which the resources should be deployed; and (vi) the requesting party's point of contact.

A party that receives a request for mutual aid assistance shall, to the extent reasonable and practicable under the circumstances, provide and make available the resources requested by the requesting party; provided, however, that a party may withhold requested resources to the extent necessary to provide reasonable protection and coverage for its own jurisdiction.

(e) The requesting party shall be responsible for the overall operation, assignment and deployment of resources and personnel provided by a sending party consistent with the incident command system. The sending party shall retain direct supervision and command and control of personnel, equipment and resources provided by the sending party unless otherwise agreed to by the requesting party and sending party.

During the course of rendering mutual aid assistance under the agreement, the sending party shall be responsible for the operation of its equipment and for any damage thereto unless the sending party and the requesting party agree otherwise.

(f) All expenses incurred by the sending party in rendering mutual aid assistance pursuant to the agreement shall be paid by the sending party; provided, however, that a requesting party and a sending party may enter into supplementary agreements for reimbursement of costs associated with providing mutual aid assistance incurred by a sending party.

A sending party shall document its costs of providing mutual aid assistance under the agreement, including direct and indirect payroll and employee benefit costs, travel costs, repair costs and the costs of materials and supplies. A sending party shall also document the use of its equipment, and the quantities of materials and supplies used while providing mutual aid assistance under the agreement.

Except as otherwise agreed to by the requesting and sending parties, the requesting party shall seek reimbursement under any applicable federal and state disaster assistance programs for the costs of responding to the public safety incident. The requesting party and each sending party shall receive, based on the documented costs of providing mutual aid assistance, its pro rata share of the disaster assistance compensation and reimbursement provided to the requesting party.

(g) While providing mutual aid assistance under the agreement, employees of a sending party shall: (i) be afforded the same powers, duties, rights and privileges as they are afforded in the sending party's geographical jurisdiction or location; and (ii) receive the same salary, including overtime, that they would be entitled to receive if they were operating in their own governmental unit. In the absence of an agreement to the contrary, the sending party shall be responsible for all such salary expenses, including overtime.

(h) While in transit to, returning from and providing mutual aid assistance under the agreement, employees of a sending party shall have the same rights of defense, immunity and indemnification that they otherwise would have under the law if they were acting within the scope of their employment under the direction of their employer. A sending party shall provide to, and maintain for, each of its employees who provide mutual aid assistance under the agreement the same indemnification, defense, right to immunity, employee benefits, death benefits, worker's compensation or similar protection and insurance coverage that would be provided to such employees if they were performing similar services in the sending party's jurisdiction.

Each party to the agreement shall waive all claims and causes of action against all other parties that may arise out of their activities while rendering or receiving mutual aid assistance under the agreement, including travel outside of its jurisdiction.

Each requesting party shall defend, indemnify and hold harmless each sending party from all claims by third parties for property damage or personal injury which may arise out of the activities of the sending party or its employees, including travel, while providing mutual aid assistance under the agreement.

(i) This section shall not affect, supersede or invalidate any other statutory or contractual mutual aid or assistance agreements involving parties to the agreement, including, but not limited to, those established pursuant to section 4A or 8G. A party may enter into supplementary mutual aid agreements with other parties or jurisdictions.

Section 4K. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Advisory committee”, the statewide public works municipal mutual aid advisory committee established in subsection (d).

“Agreement”, the statewide public works municipal mutual aid agreement established in subsection (b).

“Employee”, a person employed full or part time by a governmental unit.

“Governmental unit”, a city, town, county or district, however constituted, or water or sewer commission established under the provisions of chapter 40N or any other general or special law.

“Mutual aid assistance”, cross-jurisdictional provision of services, materials or facilities from one party to another when existing resources are, or may be, inadequate.

“Party”, a governmental unit that has joined the agreement.

“Public works incident”, a foreseeable or unforseeable event, emergency or natural or manmade disaster that affects or threatens to affect the public works operations of a governmental unit.

"Requesting party", a party that requests aid or assistance from another party pursuant to the agreement.

"Sending party", a party that renders aid or assistance to another party under the agreement.

(b) There shall be a statewide public works municipal mutual aid agreement to facilitate the provision of public works resources across jurisdictional lines in the case of a public works incident that requires mutual aid assistance from 1 or more municipalities. The mutual aid assistance to be provided under the agreement shall include, but not be limited to, services related to public works, personnel, equipment, supplies and facilities to prepare for, prevent, mitigate, respond to and recover from public works incidents.

(c) (1) (i) If a city or town wishes to join the agreement, the mayor in the case of a city, the city manager in the case of a Plan D or Plan E city, or the town manager, town administrator or chair of the board of selectmen upon approval by a majority vote of the board of selectmen, may act on behalf of the city or town to join the agreement by notifying the advisory committee in writing. The municipality shall be a party to the agreement 30 days after receipt by the advisory committee of the written notification.

(ii) If a city or town has joined the agreement but wishes to opt out of the agreement, the mayor in the case of a city, the city manager in the case of a Plan D or Plan E city, or the town manager, town administrator or chair of the board of selectmen upon approval by a majority vote of the board of selectmen in the case of a town, may act on behalf of the city or town to opt out of the agreement by notifying the advisory committee in writing. The removal of the municipality from the agreement shall take effect 10 days after receipt by the advisory committee of the written notification.

(2) (i) If a governmental unit that is not a city or town wishes to join the agreement, the chief executive officer of the governmental unit may act on its behalf to join the agreement by notifying the advisory committee in writing. The governmental unit shall be a party to the agreement 30 days after receipt by the advisory committee of the written notification.

(ii) If a governmental unit that is not a city or town has joined the agreement but wishes to opt out of the agreement, the chief executive officer of the governmental unit may act on its behalf to opt out of the agreement by notifying the advisory committee in writing. The removal of the governmental unit that is not a city or town from the agreement shall take effect 10 days after receipt by the advisory committee of the written notification.

(3) (i) If a governmental unit in a state contiguous to the commonwealth wishes to join the agreement, the governmental unit may join the agreement by notifying the advisory committee in writing. The governmental unit shall be a party to the agreement 30 days after receipt by the advisory committee of the written notification.

(ii) If a governmental unit in a state contiguous to the commonwealth has joined the agreement but wishes to opt out of the agreement, the governmental unit may opt out of the agreement by notifying the advisory committee in writing. The removal of the governmental unit from the agreement shall take effect 10 days after receipt by the advisory committee of the written notification.

(d) There shall be a statewide public works municipal mutual aid advisory committee to consist of the secretary of public safety and security or his designee, who shall serve as chair of the committee; and 1 member appointed from each of the following: the Massachusetts Highway Association; the New England Chapter of the American Public Works Association, who shall be a resident of the commonwealth; the New England Water Environment Association, who shall be a resident of the commonwealth; the Massachusetts Tree Wardens Association; the Massachusetts Water Works Association; and the Massachusetts Municipal Association.

The advisory committee shall develop procedural plans, protocols and programs for intrastate and interstate cooperation to be used by public works agencies in response to a public works incident. The administration and coordination of the statewide mutual aid agreement shall be the responsibility of the advisory committee. The advisory committee shall develop and make available to parties forms to facilitate requests for aid, including a form to track the movement of public works equipment and personnel.

(e) Each party shall identify no less than 1, but no more than 3 points of contact to serve as the primary liaison for all issues relating to the agreement.

(f) A request by a party to receive mutual aid assistance shall be made by the chief executive officer of the requesting party or 1 of its 3 designated points of contact and shall be communicated to the chief executive officer or 1 of its 3 designated points of contact from the sending party. A request may be communicated orally or in writing. If communicated orally, the requesting party shall reduce the request to writing and deliver it to the sending party at the earliest possible date, but no later than 72 hours after making the oral request.

A requesting party may request the assistance of 1 or more parties to assist with or manage a public works incident, including recovery related exercises, testing or training.

An oral or written request for mutual aid assistance under the agreement shall include the following information: (i) a description of the public works incident response and recovery functions for which assistance is needed; (ii) the nature, type and amount of public works services, personnel, equipment, materials, supplies or other resources being requested; (iii) the manner in which the resources will be used and deployed; (vi) a reasonable estimate of the length of time the resources will be needed; (v) the location to which the resources should be deployed; and (vi) the requesting party's point of contact.

(g) The requesting party shall be responsible for the overall operation, assignment and deployment of resources, equipment and personnel provided by a sending party. The sending party shall retain direct supervision, command and control of personnel, equipment and resources provided by the sending party unless otherwise agreed to in a supplemental agreement.

(h) All expenses incurred by the sending party in rendering mutual aid assistance pursuant to the agreement shall be paid by the sending party; provided, however, that a requesting party and a sending party may enter into supplementary agreements for reimbursement of costs associated with providing mutual aid assistance incurred by a sending party.

Except as otherwise agreed to by the requesting and sending parties, the requesting party shall seek reimbursement under any applicable federal and state disaster assistance programs for the costs of responding to the public works incident. The requesting party and each sending party shall receive, based on the documented costs of providing mutual aid assistance, its pro rata share of the disaster assistance compensation and reimbursement provided to the requesting party.

(i) While providing mutual aid assistance under the agreement, employees of a sending party shall: (i) be afforded the same powers, duties, rights and privileges as they are afforded in the sending party's geographical jurisdiction or location; (ii) be considered similarly licensed, certified or permitted in the requesting party’s jurisdiction if the employee holds a valid license, certificate or permit issued by the employee’s governmental unit; and (iii) receive the same salary, including overtime, that they would be entitled to receive if they were operating in their own governmental unit. In the absence of an agreement to the contrary, the sending party shall be responsible for all such salary expenses, including overtime.

(j) While in transit to, returning from and providing mutual aid assistance under the agreement, employees of a sending party shall have the same rights of defense, immunity and indemnification that they otherwise would have under the law if they were acting within the scope of their employment under the direction of their employer. A sending party shall provide to, and maintain for, each of its employees who provide mutual aid assistance under the agreement the same indemnification, defense, right to immunity, employee benefits, death benefits, worker's compensation or similar protection and insurance coverage that would be provided to such employees if they were performing similar services in the sending party's jurisdiction.

All equipment requested and deployed pursuant to the statewide municipal mutual assistance agreement shall be insured by the sending party.

(k) This section shall not affect, supersede or invalidate any other statutory or contractual mutual aid or assistance agreements involving parties to the agreement, including, but not limited to, those established pursuant to section 4A. A party may enter into supplementary mutual aid agreements with other parties or jurisdictions.

SECTION 7. Section 23 of chapter 59, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 9, the words “of that year”.

SECTION 8. Said chapter 59 is hereby further amended by striking out section 25, as so appearing, and inserting in place thereof the following section:-

Section 25. The assessors of each city, town and district shall annually raise by taxation such reasonable amount of overlay as the commissioner may approve. The overlay account shall be used only for avoiding fractional divisions of the amount to be assessed and to fund abatements granted on account of taxes assessed for any fiscal year. The amount of such overlay approved by the commissioner shall not be included in calculating the "total taxes assessed" in paragraph (a) of section 21C or the maximum levy limit in paragraph (f) of said section 21C.

SECTION 9. Section 70A of said chapter 59, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 28, the words “of the year of such tax”.

SECTION 10. Section 8 of chapter 71B of the General Laws, as so appearing, is hereby amended by adding the following paragraph:-

A school committee may adopt a program to reimburse parents who voluntarily choose to transport their disabled child to a school approved by the department that is located outside of the city or town of residence of the parent or guardian. The reimbursement program may utilize rates in excess of the standard state mileage reimbursement amounts and may be based on a mileage, daily or weekly rate. Committees choosing to utilize this option shall be able to demonstrate that parental reimbursements represent a cost savings compared to other modes of available transportation. An eligible parent shall not be required to participate in the program.

SECTION 11. (a) Notwithstanding chapter 32 of the General Laws or any other general or special law to the contrary, a municipality which accepts this section may establish and implement an early retirement incentive program for its employees in accordance with this section. Teachers, as defined by section 1 of chapter 32, who are members of the teachers’ retirement system, as well as teachers who are members of the State-Boston retirement system, shall not be considered “employees” for purposes of this section and shall not be eligible to participate in the municipal early retirement incentive program established under this section.

(b) The chief executive officer of the municipality shall limit the total number of participating employees, with preference given to those with greater years of creditable service, and shall have the authority to determine which eligible municipal employees may participate and to approve early retirement benefits for each employee in order to avoid adverse impacts on municipal operations and services.

(c) In order to be eligible to participate in a program established under this section, in addition to any other requirements imposed by the municipality, an employee must be an active member of a municipal, regional or county retirement system with at least 20 years of service whose salary is paid from the operating budget and not from federal, trust or other capital funds.

(d) An employee who is eligible for the early retirement incentive program may request in an application for retirement that the retirement board credit the employee with an additional retirement benefit of a combination of years of creditable service and years of age, in full year increments, the sum of which shall not be greater than 3 years, or a lesser amount established by the municipality, for the purposes of determining the employee’s superannuation retirement allowance under paragraph (a) of subdivision (2) of section 5 of chapter 32 of the General Laws. Notwithstanding the credit, the total normal yearly amount of the retirement allowance, as determined in accordance with said section 5 of said chapter 32, of any employee who retires and receives the retirement incentive program benefit shall not exceed 80 per cent of the average annual rate of the employee’s regular compensation as determined in accordance with said section 5 of said chapter 32. All participants must forego the right to accrued sick and vacation time, and the amount that would have been paid to a retiree for accrued sick and vacation time shall be paid into the municipal, regional or county retirement system to reduce the additional pension liability resulting from this program.

(e) In filling positions which have been vacated by employees who participate in an early retirement incentive program under this section, the chief executive officer of the municipality shall be limited to paying compensation, contract and professional services in an amount that does not exceed the following percentage of the total annual salary of all participants in the program calculated as of their respective retirement dates: 30 per cent in fiscal year 2011, 45 per cent in fiscal year 2012 and 60 per cent in fiscal year 2013.

(f) A municipality that establishes an early retirement incentive program under this section shall provide the public employee retirement administration commission with information demonstrating the value of the plan and any information requested by the public employee retirement administration commission in order to allow it to evaluate the plan and confirm the analysis, including historic data upon which the plan is based, the elements of the municipal plan including the total number of participants, the types of eligible employees, the salaries of participating employees, the benefits to be received and the limits on refilling vacated positions. In addition, the municipality shall certify to the public employee retirement administration commission that the present value cost of its plan is estimated to be less than the present value savings and provide the commission with all information it requests to evaluate the plan and confirm a cost analysis.

(g) In order to establish an early retirement incentive program under this section, a municipality shall comply with the following procedures:

(i) Within 2 months after the effective date of this act, the chief executive officer of a municipality that chooses to participate shall submit its plan to the public employee retirement administration commission for approval.

(ii) Once the plan has been approved, it shall be submitted to the legislative body of the municipality for acceptance not later than the next regular meeting of the legislative body at which the plan can practicably be submitted.

(iii) The approved plan shall be published and made available to employees within 1 month after it is accepted.

(iv) Employees must apply to participate within 2 months of the plan’s publication.

(v) The municipality shall determine which applicants shall be allowed to participate in the program and notify them within 1 month of the application deadline.

(vi) Participating employees must retire within 2 months of notification of acceptance.

(h) The chief executive officer of a municipality that establishes a program under this section shall submit an annual report to the public employee retirement administration commission, the executive office for administration and finance and the municipal legislative body. The report shall include the salaries and positions of participants, the amount of sick and vacation time being contributed by participants, the salaries and positions of those being hired as replacements and whether the positions of participants have been permanently eliminated.

(i) A municipality’s increased pension liability resulting from participation in a program established under this section shall be amortized over 10 years, starting in the next fiscal year after all participating employees retire, in equal installments, and shall be separately identified in the municipal, regional or county retirement system’s pension funding schedule.

SECTION 12. Any overlay amounts raised under the provisions of section 25 of chapter 59 of the General Laws in effect before the effective date of this act shall continue to be subject to those provisions and the provisions of section 70A of said chapter 59 in effect before the effective date of this act.