Bill H.4303 186th (2009 - 2010)
AN ACT IMPLEMENTING FISCAL STABILITY MEASURES FOR FISCAL YEAR 2010.
A Message from His Excellency the Governor relative to implementing fiscal stability for fiscal year 2010
HOUSE DOCKET, NO. 4679 FILED ON: 10/30/2009
House . . . . . . . . . . . . . . . No. 4303
Message from his Excellency the G overnor recommending legislation relative to an act implementing fiscal stability measures for fiscal year 2010 .
The Commonwealth of Massachusetts
DEVAL L. PATRICK
TIMOTHY P. MURRAY
State House · Boston 02133
October 29, 2009
To the Honorable Senate and House of Representatives:
I am filing for your consideration a bill entitled “An Act implementing fiscal stability measures for fiscal year 2010,” which contains solutions to allow for a balanced budget for the remainder of Fiscal Year 2010.
Pursuant to Section 9C of Chapter 29 of the General Laws, Administration and Finance Secretary Jay Gonzalez has advised me of a probable deficiency of revenue of approximately $600 million with respect to the Fiscal Year 2010 General Appropriation Act. I am therefore directing him to reduce allotments in accounts according to the attached list.
Like nearly every state in the nation, the Commonwealth continues to deal with the impacts of an unprecedented global economic downturn. Over the last two fiscal years, we have seen a dramatic decline in state tax revenues, leading to a cumulative budget gap of more than $8 billion. We have aggressively managed state finances to stay on top of these changes, revising revenue estimates four times in the last year, and using a multi-pronged approach to successfully maintain a balanced budget. Our management has earned the approval of the credit rating agencies, who maintained our positive credit rating.
The plan I am filing today again takes a balanced approach. I am proud that the difficult choices we have made will allow us to avoid any reduction to Local Aid or Chapter 70. Similarly, we have preserved key safety net services including maintaining eligibility in our state health insurance programs. We continue to invest in the Life Sciences, where cures for diseases may be discovered and where jobs continue to be created. Where possible, we have made decisions that limit the impact on public safety services.
Unfortunately, we can’t close our budget cap without making cuts that will no doubt impact the lives of so many in the Commonwealth. That is why I am asking for broad authority to made reductions across state government, so that everyone shares in the sacrifice. I am proposing gross spending reductions totaling $357 million. To fully close the gap, I am also relying on a small tax amnesty program and anticipated departmental revenues, a modest amount of federal recovery funds to hold higher education harmless and the use of $60 million of the FY09 surplus that is the result of our collaborative budget management and personnel controls.
This bill also makes numerous other proposals for efficiencies and savings, including:
· Providing for shared administrative services within Secretariats;
· Allowing limited transferability of funds between accounts, and, a tool we used to great effect in FY09;
· Abolishing special holidays for public employees in Suffolk County.
To provide for fiscal stability in our Commonwealth, I urge prompt action on this important legislation.
DEVAL L. PATRICK,
The Commonwealth of Massachusetts
In the Year Two Thousand and Nine
AN ACT IMPLEMENTING FISCAL STABILITY MEASURES FOR FISCAL YEAR 2010.
, The deferred operation for this act would tend to defeat its purpose, which is forthwith to make to implement fiscal stability measures for fiscal year 2010
therefore it is
hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
To provide for certain unanticipated obligations of the commonwealth, to provide for an alteration of purpose for current appropriations, and to meet certain requirements of law, the sums set forth in section 2A are hereby appropriated from the General Fund unless specifically designated otherwise in this section, for the several purposes and subject to the conditions specified in this section, and subject to the laws regulating the disbursement of public funds for the fiscal year ending June 30, 2010. These sums shall be in addition to any amounts previously appropriated and made available for the purposes of those items.
EXECUTIVE OFFICE OF PUBLIC SAFETY AND SECURITY
Department of State Police
8100-0515 For the estimated expenses of hiring, equipping and training state police recruits to maintain the strength of the state police; provided, that 100 per cent of the amount appropriated in this item shall be imposed as a policy surcharge and collected and remitted to the commissioner of insurance in accordance with section 116E of chapter 6 of the General Laws $3,200,000
Municipal Police Training Committee
8200-0210 For the expanded annual training programs for veteran and reserve municipal police officers and expanded recruit training conducted by the municipal police training committee, including development and delivery of distance learning programs for municipal police officers, and development and execution of a standards and evaluations program for training courses and instructors of or certified by the committee; provided, that notwithstanding any general or special law to the contrary, the training fee for new recruits of municipal police departments and those law enforcement officers employed by agencies of the commonwealth who exercise police powers, including but not limited to environmental police officers and campus police officers of the University of Massachusetts and state colleges who exercise police powers, shall be covered by this item; and provided further, that 100 per cent of the amount appropriated in this item, including fringe benefit charges, shall be imposed as a policy surcharge and collected and remitted to the commissioner of insurance in accordance with section 116E of chapter 6 of the General Laws $3,100,000
End Suffolk County Holidays
SECTION 3. Clause Eighteenth of section 7 of chapter 4 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the second sentence.
Insurance Surcharge for Training by Municipal Police Training Committee
SECTION 4 . Chapter 6 of the General Laws is hereby amended by inserting after section 116E the following section:-
Section 116F . (a) Sums for the estimated expenses of providing annual in-service specialized and statutorily-mandated training programs conducted by the municipal police training committee for veteran and reserve municipal police officers and for those officers employed by agencies of the commonwealth who exercise police powers and receive this training from the municipal police training committee, including but not limited to environmental police officers and campus police officers of the University of Massachusetts and state colleges who exercise police powers, shall be paid to the commissioner of insurance by property and casualty insurance companies writing motor vehicle insurance policies in the commonwealth by means of a policy surcharge imposed upon the policyholder of any private passenger automobile policy issued by any property and casualty insurance company writing motor vehicle insurance policies in the commonwealth. These programs shall include new recruit training provided by the municipal police training committee; development and delivery of distance learning programs by the municipal police training committee; a standards and evaluations program for training courses and instructors of or certified by the municipal police training committee; the development and updating of training programs including curricula by the municipal police training committee, hiring, equipping, and training new state police recruits; and the development and operation of a state police cadet program including the hiring, equipping, and training of state police cadets, subject to appropriation, and the estimated cost of fringe benefits associated with this training hiring and employment. The amount of any surcharge shall be separately stated on either a billing or policy declaration sent to an insured. The rate of the policy surcharge shall be determined and adjusted annually by the commissioner of insurance to a rate sufficient to generate a surcharge to fund the expenses estimated by the secretary of public safety and security for the purposes described above.
(b) The policy surcharge shall be collected and remitted to the commissioner of insurance by the property and casualty insurance companies writing motor vehicle insurance policies in the commonwealth on a quarterly basis on or before the twenty-fifth day of the month succeeding the end of the quarter in which it is collected. Any company failing or refusing to collect and remit to the commissioner of insurance any policy surcharge or whose surcharge payments are not postmarked by the due dates for quarterly filing shall be liable for a penalty of up to $100 for each day of delinquency, to be assessed by the commissioner of insurance. The estimated costs shall include an amount equal to the cost of fringe benefits as established by the secretary of administration and finance under section 5D of chapter 29. Any surcharge collected in a fiscal year but not expended by the municipal police training committee or department of state police for the purposes set forth in this section shall be retained by the commonwealth for use by the municipal police training committee or department of state police. The retained surcharge shall be credited against the amounts required to be collected under this section in the following year, and those required payments shall be reduced by the amount of this credit.
Shared Services for Executive Offices
SECTION 5 . Chapter 6A of the General Laws is hereby amended by inserting after section 7 the following section:-
Section 7A. Each secretary may, notwithstanding any general or special law to the contrary, identify administrative processing activities and functions common to the state agencies within the executive office and may designate such functions as core administrative processing functions. To improve administrative efficiency and preserve fiscal resources, the secretary may direct that core administrative processing functions be performed by the executive office or by one or more state agencies designated by the secretary to perform those functions. Common activities and functions that may be designated as core administrative processing functions include without limitation human resource functions including payroll processing; information technology services; leasing and facility management services; financial management services, such as budgeting, procurement, contract management, and accounts payable/receivable functions; and other administrative processing functions. Upon designation of a function as a core administrative processing function, the secretary may direct that employees of each state agency who perform those functions be transferred to the executive office or to any state agency designated by the secretary to perform core administrative processing functions. Nothing in this section shall waive the responsibility of each agency head to certify obligations and expenditures for appropriations and other legally available funds of the agency pursuant to section 3 of chapter 7A, the responsibilities of an agency head pursuant to state finance law including but not limited to sections 19, 20, 24, 26 and 27 of chapter 29, and the responsibility of an agency head to certify work by employees of the agency pursuant to section 31 of chapter 29. An agency head may not delegate agency head signature authorization to any individual who is not an employee of the agency. The executive office or any state agencies designated to perform core administrative processing functions may charge the state agencies that receive such services for the reasonable costs of providing the services. Any employee transfers that occur in connection with the consolidation of core administrative processing functions within the executive office or state agencies shall not: (a) impair the civil service status of any such transferred employee who immediately before the effective date of this act either holds a permanent appointment in a position classified under chapter 31 or has tenure in a position by reason of section 9A of chapter 30; or (b) impair or change an employee's status, rights, or benefits under chapter 150E.
Owner Controlled Insurance Program for Construction Projects
SECTION 6 . Chapter 30 of the General Laws is hereby amended by inserting after section 39S the following section:-
Section 39T. Notwithstanding section 8 of chapter 268A, the following agencies may implement competitively procured owner controlled insurance programs, and may permit the use of contractor controlled insurance programs, on projects having estimated construction costs equal to or greater than $50,000,000: (a) the division of capital asset management and maintenance, (b) the department of highways, (c) the Massachusetts Port Authority, the Massachusetts Water Resources Authority, (d) the Massachusetts State Colleges Building Authority, and (e) the University of Massachusetts Building Authority.
Improve “Qualifications Based Selection” for Transportation Construction Procurements 1
SECTION 7. Clause (32A) of subsection (b) of section 1 of chapter 30B of the General Laws, inserted by section 41 of chapter 25 of the acts of 2009, is hereby amended by inserting after the word “professionals” the following words:- , except as provided in section 21.
SECTION 8. Section 21 of said chapter 30B, as appearing in section 45 of said chapter 25, is hereby amended by striking out subsections (b), (c), (d) , (e), (f), (g), (h), ( i ) and (j) and inserting in place thereof the following subsections:-
(b) For those agencies that prequalify architectural, engineering, and related services, the agency shall require firms engaged in the lawful practice of their profession to submit a statement of qualifications and performance data every 3 years to the agency pursuant to the terms and schedule as determined by the agency. Agencies that prequalify have the option of selecting a firm or firms from their prequalified list of firms based on the agency policies and without further publicly advertising the selection.
(c) Whenever a public works project requiring architectural, engineering or related professional services is to be advertised by an agency, the agency shall provide no less than 14 days advance notice published in a professional services bulletin or advertised on the official agency website setting forth the public works project and services to be procured. The professional services bulletin shall be made available to each firm that requests the information. The professional services bulletin shall include a description of each public works project and shall state the time and place for an interested firm to submit a statement of qualifications and, if required by the public notice, a letter of interest and technical proposal. If the agency determines that a sole source selection of a qualified firm is in the best interest of the agency, then the public notice provisions of this subsection shall not apply.
(d) An agency shall evaluate the firms submitting statements of qualifications, taking into account qualifications, letters of interest and/or technical proposals, and the agency may consider, but shall not be limited to considering, ability of professional personnel, past record and experience, performance data on file, willingness to meet time requirements, location, workload of the firm and any other qualifications based on factors that the agency may determine in writing are applicable. The agency may conduct discussions with and require presentations by firms deemed to be the most qualified regarding their qualifications, approach to the public works project and ability to furnish the required services. An agency shall not, before selecting a firm for negotiation, seek formal or informal submission of verbal or written estimates of costs or proposals in terms of dollars, hours required, percentage of construction cost or any other measure of compensation.
(e)(1) An agency shall select architects, engineers and related professional firms on the basis of qualifications for the type of professional services required, and on technical proposals, if submitted. An agency may solicit or use pricing policies and proposals or other pricing information to determine consultant compensation only after the agency has selected a firm and initiated negotiations with the selected firm.
(2) The procedures that an agency creates for the screening and selection of firms shall be within the sole discretion of the agency and may be adjusted to accommodate the agency's scope, schedule and budget objectives for a particular public works project.
(3) The decision of an agency that has complied with this chapter shall be final and b o nding.
(f)(1) The agency and the selected firm shall discuss and refine the scope of services for the public works project and shall negotiate conditions including, but not limited to, compensation level and performance schedule based on scope of services. The compensation level paid shall be reasonable and fair to the agency as determined solely by the agency. In making such determination, the agency shall take into account the estimated value of the services to be rendered and the scope, complexity and professional nature thereof.
(2) If the agency and the selected firm are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the agency, the agency shall, in writing, formally terminate negotiations with the selected firm. The agency shall then negotiate with the second ranked most qualified firm. The negotiation process shall continue in this manner through successive ranked firms until an agreement is reached or the agency terminates the consultant contracting process.
(g) This chapter shall not apply to the procurement of architectural, engineering, and related professional services by agencies: ( i ) when an agency determines in writing that it is in the best interest of the agency to proceed with the immediate selection of a firm; (ii) in emergencies when immediate services are necessary to protect the public health and safety, or ; (iii) when these services are to be provided as part of a design-build project, p u rsuant to sections 14 through 21 of chapter 149A .
(h) Each agency shall evaluate the performance of each firm upon completion of a contract. That evaluation shall be made available to the firm which may submit a written response.
Commonwealth Corporation and Economic Stabilization Trust GIC Participation
SECTION 9. Section 2 of chapter 32A of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the word "Center", in line 13 the following words: - Commonwealth Corporation, Economic Stabilization Trust
Clarify Tax Laws for Condominium Associations 1
SECTION 10. Chapter 62 of the General Laws is amended by inserting after section 5A the following section:-
Section 5C. An unincorporated association within the definition of and electing to be treated as a homeowners association under section 528(c) of the Code for a taxable year shall be subject to tax under this chapter on its income as a resident individual for the taxable year. Its gross income shall be calculated under paragraph (a) of section 2 of this chapter, and its taxable income shall be defined as in section 528(d )( 1) and (3) of the Code, to the extent consistent with the law of the commonwealth. Such associations shall not be allowed the deductions or exemptions under section 3. The modifications under section 528(d )( 2) of the Code shall not apply in determining taxable income for purposes of this chapter.
Tax Administration #1: Partnership Audits
SECTION 11 . Chapter 62C of the General Laws is hereby amended by inserting after section 24 the following section:-
Section 24A. (a) Tax treatment of pass-through entity items is established at the entity level. The commissioner may audit, in a unified proceeding, a pass-through entity whose members or indirect owners are subject to tax under chapters 62 or 63. Pass-through items of entities subject to unified audit procedures must be treated consistently by the pass-through entity and all members or indirect owners of the pass-through entity, except to the extent that a taxpayer member or indirect owner makes a declaration of inconsistency with its original return. For purposes of chapter 62C, the entity is a taxpayer.
(b) The statute of limitations for assessing tax with respect to a pass-through entity item for an entity’s taxable year shall not expire before the late r of ( i ) 3 years after the later of the date on which the entity’s return for the taxable year was filed , or the last day for filing the entity’s return for that year, without extensions, or (ii) an assessment period established in section 26 applicable to a taxpayer member o r indirect owner. Subsections (d) and (h) of section 26 shall apply to returns filed by a pass-through entity. A member or indirect owner of a pass-through entity may file a request for an adjustment of tax attributable to any pass-through entity item for a taxable year within 3 years after the later of the date on which the entity’s return for the taxable year was filed, or the last day for filing the entity’s return for that year, without extensions; such request may not be filed, however, after the commissioner has issued a final entity administrative adjustment. Partial or full denial of a request for adjustment of tax will be treated as a refusal to abate or refund tax under section 39.
(c) Assessment of a deficiency attributable to any pass-through entity item against members or indirect owners of entities subject to unified audit proceedings is made only after entity-level proceedings are complete. Matters determined in a unified audit proceeding are not subject to dispute by the individual members or indirect owners. The commissioner shall establish by regulation the types of pass-through entities subject to unified audit proceedings (which may include, without limitation, partnerships and S corporations), and the requirements imposed on these entities, including the designation of a tax matters partner. Insofar as practicable, these requirements shall be based on federal rules.
Tax Administration #2: Interest Charge on Installment Sales 1
SECTION 12. Said c hapter 62C of the General Laws is hereby further amended by inserting after section 32 the following section :-
Section 32A. (a) If an obligation from an installment transaction to which subsections (a) to (c) of section 453A of the Code applies is outstanding as of the close of any taxable year, the tax imposed by chapter 62 or 63 for such taxable year shall be increased by the amount of interest equal to the product of the applicable percentage of the deferred tax liability determined under Code section 453A(c) adjusted for Massachusetts differences, including use of the applicable tax rate under chapter 62 or 63, as the case may be, multiplied by the underpayment rate in effect under sub section (a) of section 32 .
(b) In the case of any installment obligation to which paragraph (2)(B) of subsection 453(l) of the Code applies, the tax imposed by chapter 62 or 63 for any tax year in which payment on such obligation is received shall be increased by an amount of interest determined as follows: the amount of tax for such taxable year attributable to such payments on installment obligations to which this subsection applies shall be multiplied by the underpayment rate determined under sub section (a) of section 32 in effect at the time of sale, which rate shall be applied for the period beginning on the date of sale and ending on the date such payment is received.
(c) The commissioner may issue rules or regulations analogous to those under sections 453A and 453 adjusted to reflect Massachusetts differences or to otherwise take account of Massachusetts tax laws.
Tax Administration #3: Confidentiality of Internal DOR Settlement Communications
SECTION 13. Section 37C of said chapter 62C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following subsection:-
(g) C ommunications between or among department of r evenue employees or contractors with regard to proposed or completed settlements under this section shall be confidential and not subject to disclosure to the taxpayer or any other party, but such communications may be disclosed to the attorney general in conjunction with the review or reporting of settlements as provided in this section.
Clarify Tax Laws for Condominium Associations 2
SECTION 14. Section 68C of chapter 63 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out clause (9) and inserting in its place the following two clauses:-
(9) an unincorporated entity within the definition of and electing to be treated as a homeowners association under section 528(c) of the Code and subject to tax for the taxable year as provided in section 5C of chapter 62; or
(10) a business corporation otherwise expressly exempted from the excise under this chapter by any other general law.
Used Car Values
SECTION 15 . Section 4 of Chapter 64I of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-
Notwithstanding this section, the excise imposed by section 2 upon the storage, use or other consumption of motor vehicles or trailers shall be paid by the purchaser to the registrar of motor vehicles in the manner prescribed by the commissioner. The vendor thereof shall not add the tax to the sales price and shall not collect the tax from the purchaser. The vendor thereof shall, however, furnish to the purchaser, the registrar and the commissioner a sworn statement of the sale upon a form prescribed by the commissioner, giving such information as the commissioner may require for the determination of such tax. For purposes of such determination, the sales price of any motor vehicle, except a motor vehicle purchased from a vendor registered under this chapter who is regularly engaged in the business of making sales at retail of such motor vehicles, shall be the actual amount paid by the purchaser to the vendor for said motor vehicle or the clean trade-in value of said motor vehicle, whichever is greater regardless of the actual condition of the vehicle. “Clean trade-in value” for a motor vehicle shall mean the clean trade-in value or equivalent or successor values listed in the National Automobile Dealers Association used car guide or other value guides whether published in print or electronically or default values as determined jointly by the commissioner and registrar. The commissioner may establish rules and regulations for accepting values below these values based on the condition of the vehicle at the time of sale or other factors as may be appropriate.
Tax Administration #4: Updated C hart for U se T ax R eported on Form 1 – 1
SECTION 16. Section 4A of c hapter 64I of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the table appearing in lines 26 – 32 and inserting in place thereof the following table :-
MA AGI Per Return Use Tax Liability
$0 - $25,000 $ 0.00
$25,001 - $40,000 $20.00
$40,001 - $60,000 $31.00
$60,001 - $80,000 $44.00
$80,001 - $100,000 $56.00
Above $100,000 (Multiply MA AGI by .000625)
Improve “Qualifications Based Selection” for Transportation Construction Procurements 2
SECTION 17. Section 8A of chapter 81 of the General Laws is hereby repealed.
Municipal Red Light Cameras
SECTION 18. Chapter 90 of the General Laws is hereby amended by inserting after section 20A1/2 the following section:-
Section 20A3/4 . (a) Notwithstanding any general or special law to the contrary, any city or town may, upon the acceptance of this section and in accordance with section 2 of chapter 85, employ a “monitoring system” along any portion of any way within its control and may adopt local measures imposing a monetary penalty on the owner of a motor vehicle for failure by its operator to comply with the laws, codes, regulations, by-laws, ordinances, rules or other forms of legislation governing the traffic control signals in the city or town in which the monitoring system is located.
(b) (1 ) As used in this section , the following words shall have the following meanings:
“Local measure”, an ordinance, rule, by-law, code or regulation adopted by any city or town , establishing a schedule of monetary penalties imposed on the owner or owners of a motor vehicle for failure by its operator to comply with the laws, ordinances, rules, by-laws, codes, regulations or other forms of legislation governing the traffic control signals in the cit y or town in which the monitoring system is located.
“Traffic control signal”, a signaling device positioned at a road intersection, pedestrian location or other location for the purpose of indicating through a series of colors (Red – Yellow – Green) the correct moment to stop and begin driv ing.
“Monitoring system”, an automated motor vehicle sensor device installed to work in conjunction with a traffic control signal that produces 2 or more film or digital camera based photographs or other recorded images of each motor vehicle at the time it is used or operated in a manner that is in violation of the traffic control signal at which the automated monitoring system is located.
“Violation”, the failure of an operator of a motor vehicle to comply with the laws, codes, regulations, by-laws, ordinances, rules or other forms of legislation governing the traffic control signals at which a traffic control signal violation monitoring system is located.
(2 ) Photographs from a monitoring system must, at a minimum, record the rear of the motor vehicle, with at least 1 image clearly recording the motor vehicle immediately before the violation of the traffic control signal and at least 1 image recording the motor vehicle passing through the intersection in violation of the traffic control signal. Additionally, at least 1 image must clearly identify the registration plate of the motor vehicle;
(3 ) To the extent practicable, any monitoring system shall use necessary technologies to ensure that photographs produced by the monitoring system shall not include a frontal view photograph of the motor vehicle that is in violation of the traffic control signal or images that identify the operator, the passengers, or the contents of the vehicle , but no notice of liability issued under this section shall be dismissed solely because a photograph or photographs allow for the identification of the operator, passengers, or contents of a vehicle as long as the city or town has made a reasonable effort to comply with this paragraph.
(4 ) Any city or town shall clearly indicate the presence and usage of a monitoring system at each intersection where a monitoring system is in use by signage clearly visible to traffic approaching from all directions. Such signage shall be established at each system location for at least 30 days before the city or town issu es citations under this section . The signage shall remain at each system location as long as a monitoring system is in operation.
(5 ) A penalty imposed by a local measure for a violation of this section shall not be considered a criminal conviction and shall not be made part of the operating record of the person upon whom the liability is imposed, nor shall the imposition of a penalty be u s ed for insurance rating purposes in providing motor vehicle insurance coverage.
( 6 ) The compensation paid to the manufacturer or vendor of the traffic control signal monitoring system deployed as a means of promoting traffic safety as authorized by this section shall not be based upon the number of traffic citations issued or any portion or percentage of the fine generated by the citations. The compensation paid to the manufacturer or vendor of the equipment shall be based upon the value of the equipment and the services provided in support of the traffic control signal monitoring system.
(7 ) Before a monitoring system may be installed, the traffic control signal installation must comply with the standards set forth in the Manual on Uniform Traffic Control Devices and by the Institute of Transportation Engineers . If it is determined that the traffic control signal is not in compliance with the se standards, it shall be the responsibility of the city or town installing the monitoring system to bring the traffic control signal into compliance. Verification that the traffic control signal meets the se standards shall be made by a professional engineer registered in the commonwealth.
(8 ) If a city or town make s a determination to cease the operation of a monitoring system at a particular location, the administrator of the monitoring system within the city or town shall notify the department of highway s 30 days before removing the monitoring system equipment from that location.
(c)(1 ) A certificate, or a facsimile thereof sworn to or affirmed by a police officer or other law enforcement officer authorized to issue motor vehicle citations for violations of traffic laws, stating that based upon inspection of the photographs, or other recorded images produced by a monitoring system, the vehicle was in violation of this section , shall be prima facie evidence of the facts contained therein. Any photographs or other recorded information produced by a monitoring system evidencing the violation shall be available for inspection in any proceeding to adjudicate the liability for the violation of a local measure adopted under this section .
( 2 ) For each violation of this section , the owner or owners of a vehicle shall be jointly and severally liable for the penalty imposed by a local measure, but no owner of a vehicle shall be liable for a penalty imposed under this section where the operator of the vehicle has been convicted of the underlying violation under a citation issued in accordance with section 2 of chapter 90C . T he maximum penalty that may be imposed under this section shall be $100 for each violation.
( 3 ) A penalty imposed by a local measure may, if so provided in the local measure, be increased by up to 33 1/3% if the penalty remains unpaid in excess of 45 days after a notice of violation has been issued consistent with the procedures established in this section and there has been no request for a hearing under paragraph ( 3 ) of sub section (d) .
(d)(1 ) Upon the determination of a violation of a local measure through the use of a monitoring system, it shall be the duty of the chief of police of the city or town, or any designee of the chief, to send to the owner or owners of the vehicle a notice to appear before the parking clerk of the city or town in which the violation occurred at any time during regular office hours. The notice shall require the owner or owners to appear not later than 45 days after the date the notice to appear was sent. The notice shall be addressed to the registered owner or owners of any motor vehicle identified in any photographs produced by the monitoring system as evidence of a violation of this section and shall be mailed by first class mail, post marked no later than 14 days after the date of the alleged violation, inclusive of Sundays and holidays. In the case of any motor vehicle registered under the laws of another state or country, if the address is unavailable, it shall be sufficient for the parking clerk to mail the notice of violation to the official in the state or country having charge of the registration of the motor vehicle. The notice shall be considered sufficient notice, and a certificate of the chief of police or the chief’s designee mailing the notice stating that it has been mailed in accordance with this section shall be deemed prima facie evidence thereof and shall be admissible in any judicial or administrative proceeding as to the facts contained therein. The chief or the chief’s designee shall retain and safely preserve a copy of the notice of violation and shall at a time no later than the beginning of the next business day of the city or town after ma iling the notice to the owner or owners, deliver another copy to the parkin g clerk before whom the owner or owners have been notified to appear. The parking clerk shall maintain a docket of all such notices to appear.
The notice shall contain but not be limited to the following information:
( i ) a citation for the violation, which shall include the name and address of the person or persons liable as an owner or owners for the violation of this section , the registration number and state of issuance of the registration number of the vehicle involved in the violation, the date, time and location of the violation, the specific violation charged, the amount of the penalty for the violation, and the date by which the penalty shall be paid;
(ii) a copy of the recorded image showing the vehicle in violation of the traffic signal;
(iii) the identification number of the camera that recorded the violation or other document locator number;
(iv) a copy of the certificate or affidavit of the police officer under paragraph (1 ) of subsection (c) ;
(v) a schedule of fines for the violation as established by the city or town;
(vi) instructions for the return of the notice including but not limited to the following text:—
“This notice and the required payment may be returned in person, by mail, or by a duly authorized agent. A hearing to contest liability may be obtained upon the written request of the registered owner. Failure to pay the penalty or to contest liability within 45 days of issuance of this notice is an admission of liability and may result in a default judgment being entered against the owner to whom the violation has been issued and/or non-renewal or suspension of the license to drive and the certificate of registration of the registered owner.”
(vii) an affidavit form approved by the parking clerk for the purp ose of complying with paragraph ( 4 ).
(viii) a statement explaining the procedure to adjudicate the violation by mail under paragraph ( 5 ).
(2 ) Any person notified to appear before the parking clerk, as provided in this section , may appear before the parking clerk, or his designee, and confess the offense charged, either personally or through a duly authorized agent or by mailing to the parking clerk the notice accompanied by the fine provided therein, such payment to be made only by postal note, money order or check made out to the parking clerk. Payment of the penalty established shall operate as a final disposition of the case.
( 3 ) Should any person notified to appear hereunder fail to appear and, if a penalty is provided hereunder, to pay the same, or if the person requests a hearing to contest liability, the parking clerk shall forthwith schedule the matter before a person referred to in this section as a hearing officer . The hearing officer shall be the parking clerk of the city or town in which the violation occurred or any other person or persons that the parking clerk may designate. Written notice of the date, time and place of the hearing shall be sent by first-class mail to the registered owner or owners. The hearing shall be informal, the rules of evidence shall not apply and the decision of the hearing officer shall be final subject to judicial review as provided by section 14 of chapter 30A. Within 21 days of the hearing, the hearing officer shall send by first class mail to the registered owner or owners the decision of the hearing officer, including the reasons for the outcome.
(4 ) Any owner to whom a notice of violation has been issued shall not be liable for a violation of this section ( a ) if the violation was necessary to allow the passage of an emergency vehicle; ( b ) if the violation was necessary in order to protect the property or person of another; ( c ) if the violation was incurred while participating in a funeral procession; ( d ) if the violation was incurred during a period of time in which the motor vehicle was reported to the police department of any state, city or town as having been stolen and had not been recovered before the time the violation occurred; ( e ) if the operator of the motor vehicle was operating the motor vehicle under a rental or lease agreement and the owner of the motor vehicle is a rental or leasing company; ( f ) if the operator of the motor vehicle was convicted of the underlying violation under a citation issued in accordance with section 2 of chapter 90C ; ( g ) if the violation was necessary to comply with an order of a law enforcement officer or of a flagger directing traffic flow; ( h ) if the vehicle was subject to the exceptions granted to an authorized emergency vehicle under section 7B of chapter 89; or ( i ) if the violation was necessary to comply with any other law or regulation governing the operation of a motor vehicle at the intersection. An owner disputing a violation under this sub section shall, within 45 days of issuance of the notice, provide the parking clerk with an affidavit signed under the pains and penalties of perjury in a form approved by the parking clerk, as provided for in clause ( vii) of paragraph (1) of this subsection stating (1) the reason for disputing the violation; (2) the full legal name and address of the owner of the motor vehicle; (3) the names and addresses of all witnesses supporting the owner’s defense and the specifics of their knowledge; and where applicable (4) the signed statements from witnesses. The affidavit shall be filed with the request for a hearing.
( 5 ) Any person notified to appear before the parking clerk, as provided in this paragraph , may without waiving his right to a hearing before the parking clerk or hearing officer as provided by this sub section, and also without waiving judicial review under section 14 of chapter 30A, challenge the validity of the violation notice and receive a review and disposition of the violation from the parking clerk or a hearing officer by mail. The owner may, upon receipt of the notice to appear, send a signed statement explaining his objections to the violation notice as well as signed statements from witnesses, police officers, government officials and any other relevant parties. Photographs, diagrams, maps and other documents may also be sent with the statements. Any statements or materials sent to the parking clerk for review shall have attached the person’s name and address as well as the citation number and the date of the violation. The parking clerk or hearing officer shall, within 21 days of receipt of this material, review the material and dismiss or uphold the violation and notify, by mail, the owner or owners of the disposition of the written review. If the outcome of the written review is adverse to the owner or owners, the parking clerk or hearing officer shall explain the reasons for the outcome on the notice. The review and disposition handled by mail shall be informal, the rules of evidence shall not apply, and the decision of the parking clerk or hearing officer based upon the written materials s hall be final, unless the owner invokes the hearing provisions under this section or judicial review under section 14 of chapter 30A.
( 6 ) If any person fails to appear before the hearing officer in accordance with the notice, or fails to receive a favorable adjudication of the hearing from a hearing officer and fails to pay the fine within 30 days of the date that the hearing officer has mailed notice of the decision of the hearing officer, the parking clerk shall notify the registrar of motor vehicles, who shall place the matter on record. Upon notification to the registrar of 2 or more notices under this section or sections 20A or 20A½ from the parking clerk of the city or town, or state authorities or agencies, the registrar shall not issue or renew or may suspend the owner’s license to operate a motor vehicle or motor vehicle registration until after notification from the parking clerk of each city, agency or authority, from whom the registrar received notification, that all fines, taxes and penalties owed by the owner under this section have been disposed of in accordance with law. Upon such notification to the registrar, an additional charge of $20 payable to the registrar but collected by the city or town, and an additional charge of $20 payable to and collected by the city or town, shall be assessed against the registered owner of the motor vehicle. It shall be the duty of the parking clerk to notify the registrar forthwith that the case has been so disposed , but certified receipt of full and final payment from the parking clerk of the city or town, or state agency or authority issuing the violation shall also serve as legal notice to the registrar that the violation has been disposed of in accordance with law. The certified receipt shall be printed in a form approved by the registrar of motor vehicles.
(7 ) Upon the accumulation by an owner of 2 or more outstanding notices under this section or sections 20A or 20A½ on account of violations of any statute, ordinance, order, rule or regulation relating to the operation, control or parking of motor vehicles in a particular city or town, notwithstanding any notification to the registrar, the parking clerk of the city or town may notify the chief of police or director of traffic and parking of the city or town that the vehicle bearing the registration to which the notices have been issued shall be removed and stored or otherwise immobilized by a mechanical device at the expense of the registered owner of the vehicle until all fines, taxes and penalties owed by the owner either under this section, or otherwise arising out of the parking or usage of the owner’s motor vehicle, have been disposed of in accordance with law. No vehicle shall be removed, stored, or otherwise immobilized unless the owner of the motor vehicle shall have received 10 days prior notification by mail that the motor vehicle may be removed, stored, or immobilized without further notification. It shall be sufficient for the parking clerk to mail, postage prepaid, the notification to the last known address of the registered owner. It shall be sufficient for the parking clerk, in the case of a motor vehicle registered in another state or country, to mail notification to the official in the state or country having charge of the registration of the motor vehicle.
(e)(1 ) Other than for purposes of enforcement of a violation of this section or for purposes of an owner defending a violation of this section , photographs or records taken or created under this section may only be obtained under an order by a court of competent jurisdiction.
( 2 ) Photographic and other recorded information obtained through the use of monitoring systems authorized in this section that do not identify a violation shall be destroyed within 90 days of the date the image was recorded, unless otherwise ordered by a court of competent jurisdiction. All photographic and other re corded information that identifies a violation shall be destroyed within 1 year of final disposition of proceedings related to the enforcement or defense of a violation, unless otherwise ordered by a court of competent jurisdiction. Each city and town utilizing 1 or more monitoring systems shall file notice annually with the secretary of state that these records have been destroyed in accordance with this paragraph.
(3 ) The administrator of the monitoring system within any city or town accepting this section shall also submit an annual report to the Massachusetts Department of Transportation regarding the use and operation of the monitoring system. This annual report shall contain data on the number of citations issued under this section at each particular intersection, and of those citations, shall detail the number paid without a request for a hearing; the number found responsible after a hearing; and the number dismissed after a hearing. In addition, the report shall also include the cost to maintain each monitoring system and the amount of revenue obtained from each monitoring system.
(4) The Massachusetts Department of Transportation shall, within 180 days of the effective date of this section , adopt rules and regulations for the orderly operation and standardization of th e section . The administrator of the monitoring system within any city or town accepting this section shall comply with the se rules and regulations for the orderly operation and standardization of this section , including but not limited to rules and regulations which may pertain to the comparison of pre- and post-monitoring system installation crash conditions to verify the effectiveness of the system.
DYS Juvenile Detention Reform
SECTION 19. Section 68B of chapter 119 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence :- Nothing in this section shall prevent the department from using or providing alternative placements and employing alternative measures which in the department’s discretion will reasonably assure the appearance of the children before the court.
Reduce Governor’s Appropriation
SECTION 2 0 . Item 0411-1000 of section 2 of chapter 27 of the acts of 2009 is hereby amended by striking out the figure “$4,952,646” and inserting in place thereof the following figure :- $4,605,961.
Reduce Short- Term Debt Service Appropriation
SECTION 21. Item 0699-9100 of section 2 of chapter 27 of the acts of 2009 is hereby amended by striking out the figure “$52,104,529” and inserting in place thereof the following figure :- $27,931,384.
SECTION 22. Item 1233-2400 of said section 2 of said chapter 27 is hereby amended by striking out the figure “$ 2 7, 270 , 000 ” and inserting in place thereof the following figure:- $16,500,000.
Eliminate Watershed Payment
SECTION 23. I tem 2800-0101 of said s ection 2 of said chapter 27 is hereby amended by striking out the words "; and provided further, that the department shall continue to make payments pursuant to chapter 307 of the acts of 1987 for the use of certain land" .
Transfer RAFT funds to MRVP
SECTION 24. (A) Item 7004-9024 of said section 2 of said chapter 27 is hereby amended by striking out the figure “$29,997,061” and inserting in place thereof the following figure:- $32,897,061.
(B) Item 7004-9316 of said section 2 of said chapter 27 is hereby amended by striking out the figure “$3,060,000” and inserting in place thereof the following figure:- $160,000.
Reduce Municipal Quinn Bill Funding
SECTION 25. I tem 8000-0040 of said s ection 2 of said chapter 27 is hereby amended by striking out the figure “$10,000,000” and inserting in place thereof the following figure :- $5,000,000 .
DPS Retained Revenue Ceiling Increase
SECTION 26 . S aid s ection 2 of said chapter 27 is hereby further amended by striking out item 8315-1020 and inserting in place thereof the following item:-
8315-1020 For the department of public safety , which may expend not more than $2,478,869 in revenues collected from fees for annual elevator and amusement park ride inspections; provided, that funds shall be expended for the operation of the department and to address the existing elevator inspection backlog; provided further, that the department shall make efforts to employ inspectors who will perform overnight and weekend inspections as their regular work shift; provided further, that the department may collect and retain reimbursement for overtime costs associated with overnight and weekend inspections; provided further, that the department shall provide a full waiver of the inspection fee for an individual who requires a wheelchair lift as a medical necessity and whose annual income does not exceed the maximum allowable federal SSI benefit, or $7,236 a year, whichever is greater; and provided further, that notwithstanding any general or special law to the contrary, for the purpose of accommodating timing discrepancies between the receipt of retained revenues and related expenditures, the department may incur expenses and the comptroller may certify for payment amounts not more than the lesser of this authorization or the most-recent revenue estimate as reported in the state accounting system $2,478,869
Sweep Trust Fund Balance
SECTION 27. Clause (b) of chapter 64 of the acts of 2009 is hereby amended by striking out the figure “$7,000,000” and inserting in place thereof the following figure :- $22,100,000.
Transfer to M edical S ecurity T rust F und
SECTION 28. Notwithstanding any general or sp ecial law to the contrary, the secretary of administration and finance may direct the c omptroller to transfer not more than $30 million from the General Fund to the Medical Security Trust Fund, established under su bsection (k) of section 14G of c hapter 151A of the General Laws , in fiscal year 2010, to be available to pay for health insurance coverage provided under that section if the unemployment health insurance contributions required under the section will be inadequate to fund the h ealth insurance coverage. The secretary of administration and f inan ce may later direct the c omptroller to transfer not more than $30 million from the Medical Security Trust Fund to the General Fund to repay the General Fund for the transfer authorized by the preceding sentence.
Expanded Allotment and 9C Authority
SECTION 29 . During fiscal year 2010, the power of the governor or the secretary of administration and finance to allot funds under section 9B of chapter 29 of the General Laws shall extend to any monies appropriated by the general court . The procedures in section 9C of said chapter 29 shall apply to allotments under this section.
SECTION 30 . Notwithstanding any general or special law to the contrary, the secretary of administration and finance may authorize the transfer of funds from any item of appropriation for fiscal year 2010 for any executive branch agency to any other item of appropriation for that agency or within its executive office. No transfer authorized by this section shall exceed 5 per cent of the amount appropriated for an item. The secretary of administration and finance shall notify the house and senate committees on ways and means 15 days before a transfer pursuant to this section.
Use FY09 S urplus for FY10
SECTION 31 . Notwithstanding any general or special law to the contrary, the comptroller shall , on or before June 30, 20 10 , transfer $6 0 ,000,000 to the General Fund from the Commonwealth Stabilization Fund, including the amounts transferred to the Commonwealth Stabilization Fund by clause (ii) of section 1 of chapter 56 of the acts of 2009 , but the comptroller shall instead transfer a lesser amount if the secretary of administration and finance so requests in writing . The comptroller, in consultation with the secretary, may take the overall cash flow needs of the commonwealth into consideration in determining the timing of this transfer of funds. The comptroller shall provide a schedule of transfers to the secretary and to the house and senate committees on ways and means.
Tax Amnesty Program
SECTION 3 2 . (a) Notwithstanding any general or special law to the contrary, the commissioner of revenue shall establish a tax amnesty program during which all penalties that could be assessed by the commissioner for the failure of the taxpayer to: ( i ) timely file any proper return for any tax type and for any tax period; (ii) file proper returns which report the full amount of the taxpayer's liability for any tax type and for any tax period; (iii) timely pay any tax liability; or (iv) pay the proper amount of any required estimated payment toward a tax liability shall be waived without the need for any showing by the taxpayer of reasonable cause or the absence of willful neglect. The waiver of a taxpayer’s liability under this section shall apply if the taxpayer files returns, makes payments as required by the commissioner or otherwise comes into compliance with the tax laws of the commonwealth as required by the commissioner pursuant to the tax amnesty. The scope of the amnesty program in terms of the particular tax types and periods covered, including any limited look-back period for unfiled returns, shall be determined by the commissioner.
(b) The amnesty program shall be established for a period of 2 consecutive months within fiscal year 2010 to be determined by the commissioner, such period to expire not later than June 30, 2010, and all required payments shall be made on or before June 30, 2010, in order for the amnesty to apply. If a taxpayer fails to pay the full liability before June 30, 2010, the commissioner shall retain any payments made and shall apply said payments against the outstanding liability, and the provisions of the tax amnesty program, other than the additional penalty authorized by section 2, shall not apply.
(c) The commissioner's authority to waive penalties during the amnesty period shall not apply to any taxpayer who, before the start date of the amnesty program selected by the commissioner, was the subject of a tax-related criminal investigation or prosecution. The amnesty program shall not authorize the waiver of interest or any amount treated as interest. The commissioner may offer tax amnesty to those taxpayers who have either any unpaid self-assessed liability or who have been assessed a tax liability, whether before or after their filing of a return, which assessed liability remains unpaid.
(d) To the extent that a taxpayer within the scope of the amnesty program as determined by the commissioner and wishing to participate in the amnesty program has postponed the payment of an assessment of tax, interest and penalty under the authority of subsection (e) of section 32 of chapter 62C of the General Laws, the taxpayer shall waive in writing all rights under said subsection (e) to further delay the payment of the tax and interest portions of the assessment. The tax and interest portions of the assessment shall be payable in full from the date of the commissioner's notice of assessment. Upon payment by the taxpayer of the tax and interest of the outstanding assessment, the commissioner shall waive all penalties associated with that assessment. The taxpayer and the commissioner shall then proceed with all administrative appeal rights that the taxpayer wishes to pursue with respect to the assessment.
(e) Amnesty shall not apply to those penalties which the commissioner would not have the sole authority to waive including, but not limited to, fuel taxes administered under the International Fuel Tax Agreement or under the local option portions of taxes or excises collected for the benefit of cities, towns or state governmental authorities.
(f) The commissioner shall maintain records of the amnesty provided under this section including, but not limited to: ( i ) the number of taxpayers provided with amnesty; (ii) the types of tax liability, for which amnesty was provided and, for each type of liability, the amount of tax liability collected; and the amount of penalties foregone by virtue of the amnesty program; and (iii) the total outstanding tax liability for amnesty eligible taxpayers at the conclusion of this program, after the collection of all funds under this section. The commissioner shall file a report detailing such information with the clerks of the house of representatives and the senate, the joint committee on revenue, the house and senate committees on ways and means, the minority leader of the house and the minority leader of the senate, not later than September 1, 2010; provided, however, that such report shall not contain information sufficient to identify an individual taxpayer or the amnesty that an individual taxpayer was provided under this section.
(g) A taxpayer who is eligible for the amnesty program based upon the criteria established by the commissioner and who fails to come forward under this program and make payments before June 30, 2010 shall, in addition to all other penalties provided by chapter 62C, be subject to an additional penalty not to exceed $500 per taxpayer, which shall be calculated and assessed according to rules determined by the commissioner and which may be subject to de minimis or other exceptions that the commissioner may consider appropriate. This penalty shall be subject to chapter 62C and shall be added to and become part of the tax due. The commissioner may waive the penalty provided by this subsection for reasonable cause as provided in subsection (f) of section 33 of chapter 62C.
Study Commission o n Police Higher Education
SECTION 33. (a) There shall be a special commission to study higher education for police officers. The commission shall consider new career incentive programs and shall review hiring requirements to determine whether new or revised educational requirements should be a condition of hiring.
(b) The commission shall consist of the secretary of education and the secretary of public safety and security , or their designee s , who shall co-chair the commission , a representative of the human resources division, a representative of the Massachusetts Municipal Association, and the chairs of the joint committee on public safety or their designees, and a member appointed by the governor.
(c) The commission shall report not later than January 4, 2010, to the governor and the clerks of the senate and house of representatives .
Tax Administration #2: Interest Charge on Installment Sales 2
SECTION 34. Section 12 shall be effective for tax years beginning on or after January 1, 2010 with respect to installment obligations outstanding as of the close of the tax year .
Clarify Tax Laws for Condominium Associations 3
SECTION 35. Sections 10 and 14 shall apply to taxable years beginning on or after January 1, 2009.
Tax Administration #4: Updated C hart for U se T ax R eported on Form 1 – 2
SECTION 36. Section 16 shall be effective for tax years beginning on or after January 1, 2010.