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Text of the Senate amendment (Senator Tisei and others) to the House Bill providing for the financial stability of the city of Lawrence (H4516, amended)

Senate, No. 2316

[Senate, March 9, 2010 T ext of the Senate amendment (Senator Tisei and others) to the House Bill providing for the financial stability of the city of Lawrence ( House, No. 4516, amended ) ]

 

 

The Commonwealth of Massachusetts

__________________

 

IN THE YEAR OF TWO THOUSAND AND NINE

                             __________________

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              SECTION 1. As used in this act the following words shall, unless the context clearly requires otherwise, have the following meanings:-

              “Board”, a finance control board established under section 4 .

              “Charter”, the charter of the city of Lawrence.

              “City”, the city of Lawrence.

              “City council”, the city council for the city of Lawrence.

              “Commissioner”, the commissioner of revenue.

              “Department”, the department of administration and finance e stablished under section 6 .

              “Director”, the director of accounts in the department of revenue.

              “Fund”, the city of Lawrence Financial Stability Fund required under section 3.

              “Officer”, the chief administrative and financial officer appointed under section 6 .

              “School committee”, the school committee of the city of Lawrence established under its charter.

              “Secretary”, the secretary of administration and finance.

              “Supplemental reserve fund”, the supplemental reserve fund to ensure fiscal stability established under section 4 of chapter 41 of the acts of 1990, and amended by section 5 of chapter 377 of the acts of 1992.

              SECTION 2. (a) Notwithstanding any general or special law, city charter provision or local ordinance to the contrary, the city, with the approval of the commissioner, may borrow, at 1 time or from time to time, sums approved by the city council and the commissioner, but in no event in an amount in the aggregate more than $35,000,000 to maintain and operate the city while it adjusts the level of its expenses and revenues in fiscal years 2010 and 2011. In fiscal year 2011 the city shall not borrow more than one-half of the amount of its deficit in fiscal year 2010. The director shall certify the amount of the city’s deficit for fiscal year 2010.

              (b) The commissioner may limit borrowing by the city under this act to an amount or amounts less than the amount or amounts approved by the city council. Bonds or notes issued under this act for operating purposes shall be issued for a term of not more than 20 years and shall be backed by the full faith and credit of the city. The bonds and notes shall be eligible to be issued as qualified bonds or notes under chapter 44A of the General Laws. Indebtedness incurred under this act shall not be included in determining the statutory limit of indebtedness of the city under section 10 of chapter 44 of the General Laws but, except as provided in this act, shall otherwise be subject to said chapter 44. Amounts raised to pay indebtedness incurred under authority of this section shall be subject to section 21C of chapter 59 of the General Laws.

              (c) The maturities of each issue of bonds or notes authorized under this act, including any refunding bonds, may, if approved by the city officers authorized to issue and approve bonds or notes, and the commissioner, be arranged so that for each issue the amounts payable in the several years for principal and interest combined are as nearly equal as is practicable in the opinion of the city officers authorized to issue and approve the bonds or notes and commissioner, or in the alternative, in accordance with a schedule providing for a more rapid amortization of principal.

              (d) In any year during which a loan issued under this section remains outstanding, the city shall not issue any other bond, note or other form of indebtedness without written notification to, and the approval of, the director.

              (e) Notwithstanding section 57C of chapter 59 of the General Laws and chapter 183 of the acts of 2009, in fiscal year 2010 an actual tax bill issued upon the establishment of the tax rate for the fiscal year, after credit is given for a preliminary tax payment previously made, shall be due and payable in 2 installments. The first installment shall be due and payable on February 1, 2010, or 30 days after the actual real estate tax bills are mailed, whichever is later, if the bills are mailed no later than March 15, 2010; provided that if the bills are mailed after March 15, 2010, the first installment shall be due and payable at the time the second installment is due and payable; and the second installment shall be due and payable on May 1, 2010, after which dates, if unpaid, they shall become delinquent.

              SECTION 3. The city shall set up on the books of the city the City of Lawrence Financial Stability Fund into which all proceeds of any loan issued under section 2 shall be deposited. The board may authorize disbursements from the fund for purposes that it considers appropriate to maintain and continue city operations. Funds borrowed for city ope rating purposes may be applied as general revenue for purposes of section 23 of chapter 59 of the General Laws. The board shall establ ish rules and procedures that it considers appropriate relating to disbursements from the fund and the reporting and accounting for such disbursements.

              SECTION 4 . (a) There shall be in the city of Lawrence a finance control board , which shall consist of 5 members: 3 of whom shall be appointed by a majority vote of the attorney general, the state auditor and the governor, 1 of whom shall be a resident of the city; the mayor of the city; and the president of the city council.  The board shall act by a majority vote of all its members. The board shall initiate and assure the implementation of appropriate measures to secure the financial stability of the city. The board shall continue in existence until the end of the third complete fiscal year following its inception, unless the members by majority vote shall vote to continue the existence of the board .  The board may vote from year to year after the third complete fiscal year following its inception whether to continue in existence for an additional fiscal year . The board shall be a state agency for the purposes of chapter 268A of the General Laws.

              (b) Action by the board under this act shall in all respects constitute action by the city for all purposes under the General Laws and under any special law.

              (c) Until the board ceases to exist, no appropriation, borrowing authorization, transfer, including transfer from or replenishment of funds into the supplemental reserve fund, the capital reserve fund established under section 7 or other municipal spending authority shall take effect unless approved by the board. The board shall determine whether to approve all appropriations, borrowing authorizations, transfers and other municipal spending authorizations, in whole or part.

              (d) In addition to the authority and powers conferred elsewhere in this act, and notwithstanding any city charter provision or local ordinance to the contrary, the board shall have the power to:

                            (1) amend, formulate and execute the annual or supplemental budgets of the city and the school committee, including the establishment, increase or decrease of any appropriations and spending authority for all departments, boards, committees, agencies or other units of the city , including the school committee; provided, however, that notwithstanding section 34 of chapter 71 of the General Laws, this clause shall fully apply to the school department and all school spending purposes;

                            (2) implement and maintain uniform budget guidelines and procedures for all departments;

                            (3) amend, formulate and execute capital budgets, including to amend any borrowing authorization, or finance or refinance any debt in accordance with the law;

                            (4) amortize operational deficits in an amount and for such term as the secretary approves on an annual basis;

                            (5) develop and maintain a uniform system for all financial planning and operations in all departments, offices, boards, commissions, committees, agencies or other units of the city's government, including the school department;

                            (6) review and approve or disapprove all proposed contracts for goods or services;

                            (7) notwithstanding any general or special law to the contrary, establish, increase or decrease any fee, rate or charge, for any service, license, permit or other municipal activity, otherwise within the authority of the city;

                            (8) appoint, remove, supervise and control all city employees and have control over all personnel matters; provided that the board shall hold all existing powers to hire and fire and set the terms and conditions of employment held by other employees or officers of the city, whether or not elected; and provided further that the board shall have the authority to exercise all powers otherwise available to a municipality regarding contractual obligations during a fiscal emergency; provided further that no city employee or officer shall hire, fire, transfer or alter the compensation or benefits of any employee except with the written approval of the board; and provided further that the board may delegate or otherwise assign these powers with the approval of the secretary;

                            (9) alter the compensation of elected officials of the city to reflect the fiscal emergency and changes in the responsibilities of the officials as provided by this act;

                            (10) employ, retain and supervise such managerial, professional and clerical staff as are necessary to carry out its responsibilities, with the approval of the secretary; provided , further, that the board, with the approval of the secretary, shall have authority to set the compensation, terms and conditions of employment of its own staff; provided , further, that the city shall annually appropriate amounts sufficient for the compensation of personnel hired under this clause as determined and fixed by the board; provided , further, that if the city fails to appropriate such amounts, the secretary shall direct the state treasurer to deduct the necessary funds from the city’s distribution of unrestricted general aid and shall expend those funds directly for the benefit of the board; provided , further, that staff hired under this subsection shall be deemed employees of the commonwealth, except such employees as the board formally designates independent contractors, and shall have benefits consistent with those of other state employees; provided, however, that chapters 31 and 150E of the General Laws shall not apply to such employees;

                            (11) reorganize, consolidate or abolish departments, commissions, boards, offices or functions of the city, in whole or in part, and to establish such new departments, commissions, boards, offices or functions as it deems necessary, and to transfer the duties, powers, functions and appropriations of 1 department, commission, board or other unit to another;

                            (12) appoint, in consultation with the secretary, persons to fill vacancies on any board, committee, department or office acting in an advisory capacity to the board;

                            (13) sell, lease or otherwise transfer real property and other assets of the city with the approval of the secretary;

                            (14) purchase, lease or otherwise acquire property or other assets on behalf of the city with the approval of the secretary;

                            (15) adopt rules and regulations governing the operation and administration of the city;

                            (16) seek voter approval of general override, debt exclusion or capital expenditure exclusion ballot questions as provided in section 21C of chapter 59 of the General Laws;

                            (17) to approve the allocation of the tax levy through the selection of a residential factor under section 56 of chapter 40 of the General Laws; provided, however that no choice of a residential factor under said section 56 shall be valid until it has been approved by the board;

                            (18) alter or rescind any action or decision of any municipal officer, employee, board or commission within 14 days after receipt of notice of such action or decision;

                            (19) suspend in consultation with the secretary any rules and regulations of the city and to adopt rules and regulations to carry out this act; and

                            (20) exercise all powers under the General Laws and this or any other special act, any charter provision or ordinance that any elected official of the city may exercise, acting separately or jointly; provided, however, that with respect to any such exercise of powers by the board, the elected officials shall not rescind or take any action contrary to such action by the board so long as the board continues to exist.

              (e) The board shall have the authority to include in the 3-year operating and capital financial plan to achieve fiscal stability an assessment and analysis of the financial impact of the city’s ; ( i ) acceptance of section 18 of chapter 32B of the General Laws ; and ( ii ) termination of providing group health insurance coverage by self-insurance under section 3A of said chapter 32B and acceptance of section 19 of said chapter 32B for purposes of obtaining group health insurance coverage from the group insurance commission established by section 3 of chapter 32A of the General Laws or participation in a joint purchasing group or agreement under section 12 of said chapter 32B for purposes of obtaining such coverage. 

              (f) The city shall be deemed to have accepted section 37M of chapter 71 of the General Laws for the purpose of consolidating the business and financial operations and functions of the school department with those of the city under the authority of the director of the department of budget and finance.   This acceptance may be revoked, but no revocation of acceptance shall be valid or effective in any year during whi ch a loan issued under section 2 remains outstanding, without the written approval of the secretary.  Upon consolidation of the business and financial operations and functions of the school department with those of the city, the board shall advise the new consolidated department of budget and finance.

              SECTION 5 . (a) If the board concludes that its powers are insufficient to restore fiscal stability to the city of Lawrence, it shall so notify the secretary for administration and finance, and shall forward to the secretary a statement of the reasons why it has been unable to restore fiscal stability to the city. Upon receipt of such statement, the secretary for administration and finance may terminate the existence of the board and may appoint a receiver for the city for a period as t he secretary may determine. The secretary may , at any time and without cause , remove the receiver and appoint a successor, or terminate the receivership. The secretary shall determine the salary of the receiver, which salary shall be payable by the city.

              (b) The receiver shall have:-

                            (1) all powers of the finance control board under section 4. Such powers shall continue in the receiver and shall remain through the period of any receivership;

                            (2) the power to exercise any function or power of any municipal officer or employee, whether elected or otherwise, specifically including the following powers r elative to building and zoning; and

                            (3) the power to file a petition in the name of the city under Chapter 9 of Title 11 of the United States Code, and to act on the city's behalf in any such proceeding.

              (c) The zoning powers under this section shall include the power:

                            ( 1 ) to order the laying out, locating anew or discontinuing of streets and ways within the city;

                            ( 2 ) to regulate the construction of buildings;

                            ( 3 ) to implement such changes to the city's zoning ordinance as are necessary; provided, however, that the zoning ordinance continues to promote public safety, health, and welfare; and provided further, that no zoning change shall affect or interfere with the integrity of existing residential districts ; provided, further that n o such proposed zoning changes shall apply to structures or uses lawfully existing or lawfully begun before the effective date of the zoning change;

              ( d ) The procedure for implementing changes in zoning ordinances as provided in section 5 of chapter 40A of the General Laws shall not govern such changes in the city during the time the receiver is in operation.

              ( e ) The receiver shall not implement any zoning change until a public hearing has been held at which interested persons shall have an opportunity to be heard. The public hearing shall be held within 60 days after the date on which the board originally proposed the zoning change. Notice of the time and place of the public hearing, of the subject matter sufficient for identification, and of the place where texts and maps of the proposed zoning change may be inspected shall be published in a newspaper of general circulation in the city once in each of 2 successive weeks; but the first publication shall be not fewer than 14 days before the day of the hearing; and notice shall also be posted in a conspicuous place in city hall for a period of not fewer than 14 days before the day of the hearing.

              ( f ) Notice of such proposed zoning change shall be sent to any nonresident property owner who files an annual request for such notice with the city clerk no later than January 1 for the upcoming year. The receiver shall establish a reasonable fee to cover the cost of providing these notices .

              ( g ) Upon the appointment of a receiver, the office of mayor shall be abolished, and the receiver shall exercise all the powers of the mayor under the General Laws, special laws, the city charter and ordinances. Other elected officials of the city shall continue to be elected in accordance with the city charter, and shall serve solely in an advisory capacity to the receiver.

              SECTION 6 . (a) Notwithstanding any general or special law or local ordinance to the contrary, this section shall apply upon abolition of a finance control board or termination of a receivership established under this act. There shall be in the city a department of administration and finance which shall be responsible for the overall budgetary and financial administration of the city. The department shall be under the direction and control of the officer. The officer shall report to and be under the charge and direction of the mayor. Nothing in this section shall abrogate the powers and duties of the school committee under any general or special law, except as specifically provided in this section.

              Whenever the term “department of budget and finance” appears in any general or special law or any ordinance, regulation, contract or other document with reference to the city, it shall mean the department of administration and finance of the city. Whenever the term “chief financial officer” or “director of budget and finance” appears in any general or special law or any ordinance, regulation, contract or other document with reference to the city, it shall mean the officer of the city.

              (b)(1) The mayor shall appoint the officer for a term of not more than 3 years, as provided in this subsection. The officer shall be appointed solely on the basis of administrative and executive qualifications and shall be a person especially fitted by education, training and experience to perform the duties of the office. The officer need not be a resident of the city.

              (2) When the office of officer is vacant or it is known that it will become vacant, the mayor shall initiate the selection process by giving notice of the intention to establish a screening committee to review applicants for the position and shall send a copy of the notice to each agency or officer responsible for appointing persons to serve on the screening committee. The mayor shall appoint the screening committee not earlier than 21 days after sending that notice. No screening committee shall be required if the mayor reappoints an incumbent officer.

              (3) The screening committee shall consist of 7 members: 1 member appointed by the school committee; 1 member appointed by the city council; 1 member appointed by the secretary; and 4 members appointed by the mayor, 2 of whom shall be experts in municipal management.

              (4) The screening committee shall recommend to the mayor the names of not less than 2 or more than 5 candidates whom it believes to be best suited to perform the duties of the officer. If the screening committee determines that there are not at least 2 candidates qualified to perform the duties of the officer, the screening committee shall report to the mayor that it is unable to complete its assigned task and the mayor shall direct the screening committee to reopen the search.

              (5) The mayor shall appoint 1 of the candidates recommended by the screening committee as the officer or, if the mayor finds that no candidate is qualified for the office, the mayor shall direct the screening committee to reopen the search.

              (c) While the process of appointing an officer under subsection (b) is proceeding, the mayor may appoint an acting officer.

              (d) If a loan issued under section 2 remains outstanding, the appointment, including an acting appointment or removal of the officer shall not take effect until it has been approved in writing by the secretary.

              (e) The powers and duties of the officer shall include the following:

                            (1) coordinating, administering and supervising all financial services and activities;

                            (2) assisting in all matters related to municipal financial affairs;

                            (3) implementing and maintaining uniform systems, controls and procedures for all financial activities in all departments, including the school department, boards, commissions, agencies or other units of city government the operations of which have a financial impact upon the general fund and enterprise funds of the city, and including, but not limited to, maintaining of all financial and accounting data and records;

                            (4) implementing and maintaining uniform financial data processing capabilities for all departments;

                            (5) supervising all financial data processing activities;

                            (6) implementing and maintaining uniform budget guidelines and procedures;

                            (7) assisting in the development and preparation of all department budgets and spending plans;

                            (8) reviewing all proposed contracts and obligations with a term in excess of 1 year;

                            (9) monitoring the expenditure of all funds, including periodic reporting by and to appropriate agencies of the status of accounts;

                            (10) reviewing the spending plan for each department; and

                            (11) providing for the allotment of funds on a periodic basis as provided for in this act.

              In all cases where the duty is not expressly charged to any other department or office, it shall be the duty of the officer to promote, secure and preserve the financial interests of the city.

              (f) All department budgets and requests for budget transfers shall be submitted to the officer for review and recommendation before submission to the mayor, city council or school committee, as appropriate. For each proposed appropriation order, lease or contract arrangement for a term including more than 1 fiscal year, collective bargaining agreement and with respect to a proposed city council vote necessary to effectuate a financial transfer, ordinance revision or special legislation which may require the expenditure of funds or otherwise financially obligate the city for a period in excess of 1 year, or with respect to a vote to authorize a borrowing under a law other than section 4, 6 or 6A of chapter 44 of the General Laws, the officer shall, submit in writing to the mayor, city council or school committee, as appropriate, a certification that it is the officer ’s professional opinion, after an evaluation of all pertinent financial information reasonably available, that the city's financial resources and revenues are, and shall continue to be, adequate to support the proposed expenditures or obligations without a detrimental impact on the continuous provision of the existing level of municipal services. If the officer fails to provide this certification within 7 days after a request for the certification from the mayor, city council or school committee, the appropriation order, financial transfer, ordinance revision, special legislation or borrowing authorization may nonetheless be approved, but the absence of the certification of the officer shall be expressly noted in that order or vote.

              (g) All departments, officers, boards, commissions, agencies and other units of the city, including the school department, shall submit budget requests to the mayor upon the schedule and in the form established by the officer.

              (h) Annually, by March 30, the officer shall submit a 4-year financial plan and a 5-year capital plan to the city council that includes all capital needs of the city.

              (i) The board of assessors, treasurer-collector, budget director, comptroller, director of information technology, purchasing agent, director of human resources, labor relations director and employees performing similar duties but with different titles shall report to and be under the direction of the officer. The officer shall appoint all such officers and employees with the approval of the mayor. The mayor may also place other positions and departments under the direction of the officer.

              (j) The officer shall not assume the duties or responsibilities of the treasurer-collector and shall not hold an elective office and shall devote his full time and attention to his duties.

              (k) The city shall annually appropriate amounts sufficient for the proper administration of the department, as determined in writing by the secretary. If the city fails to appropriate the amounts, the secretary shall direct the state treasurer to deduct the necessary funds from the city’s distribution of the city’s unrestricted general aid and shall expend those funds directly for the benefit of the department.

              (l) The officer shall comply with all requests of the school department to provide any information relating to the operation of the school department held within the authority or control of the officer as the result of the consolidation of school and city business and financial functions under section 4. If the officer, or an employee thereof, refuses to provide such information or engages in unreasonable delay, the school department shall notify the secretary. The secretary shall, within a reasonable time, make a determination that the information shall be provided to the school department which shall be binding upon the officer and the school department. The secretary’s determination shall not be an adjudicatory proceeding reviewable under chapter 30A of the General Laws. Nothing in this subsection shall abrogate any of the other powers or duties of the school committee under chapter 71 of the General Laws.

              SECTION 7 . There shall be established by the city a capital reserve fund into which the city shall appropriate in each fiscal year beginning in fiscal year 2012 at least 1.5 per cent of the amount of property taxes committed for the preceding fiscal year. The fund may be appropriated only for purposes for which the city could borrow for 10 years or longer under chapter 44 of the General Laws.

              SECTION 8 . (a) No official of the city, except in the case of an emergency involving the health and safety of the people or their property declared by the city council under section 31 of chapter 44 of the General Laws, shall knowingly expend or cause to be expended in any fiscal year any sum in excess of that official's departmental or other governmental unit's appropriation duly made in accordance with the law, nor commit the city, nor cause it to be committed, to any obligation for the future payment of money in excess of that appropriation, with the exception of court judgments.

              (b) An official who intentionally violates this section shall be personally liable to the city for any amounts expended in excess of an appropriation to the extent that the city does not recover such amounts from the person to whom the amounts were paid. The superior court or a single justice of the supreme judicial court shall have jurisdiction to adjudicate claims brought by the city, or on the city’s behalf by a finance control board established under this act and to order relief that the court finds appropriate to prevent further violations of this section. A violation of this section shall be sufficient cause for removal.

              (c) For the purposes of this section, the word "official" shall mean a city department head, permanent, temporary or acting, including the superintendent of schools, and all members of municipal boards, committees, including the school committee, and commissions which recommend, authorize or approve the expenditure of funds, and the word "emergency" shall mean a major disaster, including, but not limited to, flood, drought, fire, hurricane, earthquake, storm or other catastrophe, whether natural or otherwise, which poses an unexpected and immediate threat to the health and safety of persons or property.

SECTION 9 . Notwithstanding any general or special law to the contrary, unless otherwise specified, the provisions of this act shall supersede any conflicting provisions of the city’s charter or local ordinance.

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