Amendment #274 to H4179
To establish a finance control board as a condition of MBTA bond funding
Mr. Winslow of Norfolk moves to amend the bill adding the following new sections:-
“SECTION XX. Notwithstanding any general or special law or rule or regulation to the contrary, the registrar of motor vehicles shall loan $51,000,000 from the Motor Vehicle Inspection Trust Fund to the Massachusetts Transportation Trust Fund; provided, that this loan shall be made under a schedule to be developed by the comptroller, after consulting with the secretary of transportation and the secretary of administration and finance. The schedule shall provide for transfers in increments considered appropriate to meet the cash flow needs of each fund and all transfers under the schedule shall be completed not later than June 30, 2013. Not later than 7 days after the schedules receive final approval by the comptroller, they shall be reported to the house and senate committees on ways and means. In fiscal year 2013 the secretary of transportation shall, upon certification by the comptroller that sufficient funds exist in the Massachusetts Transportation Trust Fund, transfer $49,000,000, in the aggregate, from the Massachusetts Transportation Trust Fund to the Massachusetts Bay Transportation Authority or any fund controlled by the authority; provided further, that $2,000,000, in the aggregate, shall be transferred from the Massachusetts Transportation Trust Fund to the regional transit authorities organized under chapter 161B of the General Laws; provided, however, that: (i) notwithstanding section 23 of said chapter 161B, the $2,000,000 shall be distributed to each regional transit authority as supplemental assistance pro rata based upon the percentage of funds received by each regional transit authority from the total amount of state contract assistance distributed to the regional transit authorities in fiscal year 2012; (ii) such funds shall only be used to reimburse the authorities for the prior fiscal year’s “preventative maintenance expenses” of the vehicle fleet, as that term is defined within the federal national transit database definitions; and (iii) any regional transit authorities not required to file with the national transit database shall file with the Massachusetts Department of Transportation the same information required by the national transit database with respect to preventative maintenance expenses. The Authority shall repay the loan on a schedule proposed and approved by the secretary for administration and finance. Any such repayment schedule shall begin in fiscal year 2016. The Authority shall repay the entire balance of amounts loaned pursuant to this section no later than June 30, 2020. This loan shall not be forgiven in whole or in part, and failure to repay the full value of loans disbursed to the Authority shall result in an equally commensurate reduction in so called “contract assistance” payments established under chapter 131 of the acts of 2010, to the Authority in fiscal year 2021. The repayments shall be deposited in the commonwealth's General Fund. Any amounts loaned to the Authority from funds made available in this section shall be repaid to the commonwealth regardless of any actions taken by any trustees appointed on behalf of the Authority pursuant to chapter 9 of Title 11 of the United States Code.”
SECTION XX. (a) There shall be an MBTA finance control board, hereinafter referred to as the board, which shall consist of 5 members: 3 designees of the secretary of administration and finance all of who reside outside the MBTA service area, the chair of the MBTA Board of Directors, and the secretary of transportation. The board shall act by a majority vote of all its members. The secretary for administration and finance, in this act called the secretary, may fix stipends to be paid to members of the board other than the chair of the MBTA Board of Directors and secretary of transportation. The board shall initiate and assure the implementation of appropriate measures to secure the financial stability of the MBTA, and shall continue in existence until June 30, 2015, and thereafter for such period as the members may vote to continue its existence, provided however that the secretary of administration and finance may at any time abolish the board. The board shall be a state agency for the purpose of chapter 268A of the General Laws.
(b) Action by the board under the authority of this act shall in all respects constitute action by the MBTA for all purposes under the General Laws and under any special law.
(c) Until the board ceases to exist, no appropriation, borrowing authorization, transfer, or other spending authority shall take effect until approved by the board. The board shall approve all appropriations, borrowing authorizations, transfers, or any other spending authorizations, in whole or part.
(d) In addition to the authority and powers conferred elsewhere in this act, and notwithstanding any MBTA provision, or local ordinance to the contrary, the board shall have the following powers:
(1) to amend the annual or supplemental budgets of the MBTA including the establishment, increase or decrease of any appropriations and spending authority for all aspects of the MBTA;
(2) to implement and maintain uniform budget guidelines and procedures for all departments;
(3) to amend, formulate and execute capital budgets, including to amend any borrowing authorization, or finance or refinance any debt in accordance with law;
(4) to amortize operational deficits in an amount and for such term as the secretary approves on an annual basis;
(5) to 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 MBTA;
(6) to review and approve or disapprove all proposed contracts for goods or services;
(7) notwithstanding any general or special law to the contrary, to establish, increase, or decrease any fee, rate, or charge, for any service, license, permit or other activity, otherwise within the authority of the MBTA;
(8) notwithstanding any MBTA ordinance to the contrary, to appoint, remove, supervise and control all MBTA employees and have control over all personnel matters; 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 MBTA, whether or not elected; the board shall have the authority to exercise all powers otherwise available to the MBTA Board of Directors regarding contractual obligations during a fiscal emergency; and no MBTA employee or officer shall hire, fire, transfer or alter the compensation or benefits of any employee except with the written approval of the board. The board may delegate or otherwise assign these powers with the approval of the secretary;
(9) to alter the compensation of officials of the MBTA to reflect the fiscal emergency and changes in the responsibilities of the officials as provided by this act;
(10) to employ, retain, and supervise such managerial, professional and clerical staff as are necessary to carry out its responsibilities, with the approval of the secretary. The board, with the approval of the secretary, shall have authority to set the compensation, terms, and conditions of employment of its own staff. The compensation of personnel hired pursuant to this subsection shall be determined and fixed by the board. Staff hired under this subsection shall be deemed employees of the commonwealth, except such employees as the board formally designates independent contractors, but chapters 31 and 150E of the General Laws shall not apply to such employees.
(11) to reorganize, consolidate or abolish departments, commissions, boards, offices or functions of the MBTA, 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 a department, commission, board or other unit to another;
(12) to 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) to sell, lease, or otherwise transfer real property and other assets of the MBTA with the approval of the secretary;
(14) to purchase, lease, or otherwise acquire property or other assets on behalf of the MBTA with the approval of the secretary;
(15) to promulgate rules and regulations governing the operation and administration of the MBTA;
(16) to alter or rescind any action or decision of any, employee, board or commission within 14 days after receipt of notice of such action or decision;
(17) to suspend in consultation with the secretary such rules and regulations of the MBTA and to promulgate rules and regulations necessary to carry out this act; and
(18) to exercise all powers under the General Laws and this or any other special act, any provision or ordinance that any official of the MBTA may exercise, acting separately or jointly. With respect to any such exercise of powers by the board, the officials of the MBTA shall not rescind or take any action contrary to such action by the board so long as the board continues to exist; and
(19) to develop a long range plan for MBTA financial and structural sustainability, included but not limited to an analysis of debt and contemplated expansion, specifically identifying expansion which is strictly necessary as a result of a legally binding agreements and other proposals that may not be financially viable.
SECTION XX. Within 30 days after the appointment of the board, but no later than September 1, 2012, the board shall make a preliminary report to the secretary of administration and finance and to the chairpersons of the house and senate committees on ways and means. The report shall present a preliminary analysis of the fiscal crisis of the MBTA and the board's preliminary finance and management plans to address the MBTA's operating and structural deficits.
SECTION XX. Within 30 days after the appointment of the board, but no later than September 1, 2012, the board shall establish a liaison to the office of the attorney general. Such liaison shall be responsible for, but not limited to, providing the attorney general with any concern that, in the opinion of the board, warrants further investigation.
SECTION XX. (a) If the board concludes that its powers are insufficient to restore fiscal stability to the MBTA, it shall so notify the secretary for administration and finance, and shall forward to him a statement of the reasons why it has been unable to restore fiscal stability to the MBTA. 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 MBTA for a period as he 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 MBTA.
(b) The receiver shall have the following powers:-
(1) all powers of the finance control board. 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 officer or employee, whether elected or otherwise, specifically including the following powers:
(A) to order the reduction of service within the MBTA;
(B) to regulate the construction of buildings;
(3) the power to file a petition in the name of the MBTA under Chapter 9 of Title 11 of the United States Code, and to act on the MBTA's behalf in any such proceeding.
(c) Upon the appointment of a receiver, the board of directors shall be abolished, and the receiver shall exercise all the powers of the board of directors under the General Laws, special laws, the MBTA charter and ordinances.
SECTION XX. (a) The board shall submit a report to the house and senate committees on ways and means not later than 5 days before the award of any no-bid contract to any private person or entity. This report shall disclose: (1) the terms of the anticipated contract, including but not limited to all monetary compensation; (2) the identity of the contractor and any subcontractor or affiliate of such contractor that would benefit under the contract; (3) a specific finding by the board that not using a competitive bidding process under the circumstances is necessary to ensure the provision of essential services to the MBTA; and (4) a certification by the board that it engaged in arms-length negotiations with the contractor and that the terms of the contract represent the best possible arrangement for the MBTA under the circumstances.
(b) The finance control board shall submit a report to the house and senate committees on ways and means not later than 5 days before the award of any contract if, at any time within 3 years before the effective date of this act, any member of the finance control board or any employee or officer of the executive office of administration and finance served as an employee, member or general or limited partner of the contractor, its owners or affiliates. The report shall also disclose whether, at any time within 3 years before the effective date of this act, any member of the finance control board or any employee or officer of the executive office of administration and finance was required to file a statement pursuant to the Securities Exchange Act of 1934 as beneficial owner of more than 10 per cent of a class of the contractor's equity securities. This report shall disclose the terms of the anticipated contract, including but not limited to all monetary compensation, and the identity of the contractor and any subcontractor or affiliate of such contractor that would benefit under the contract.
SECTION XX. This act shall be effective notwithstanding any enabling statute provision or ordinance to the contrary.
SECTION XX. Notwithstanding any general or specific law to the contrary, the bond proceeds authorized in Section 2D shall not be disbursed prior to the creation of the MBTA finance control board, created herein, nor the disbursement of the $51,000,000 loan from the Motor Vehicle Inspection Trust Fund to the authority.