Budget Amendment ID: FY2015-S4-191

GOV 191

Sunset Review

Mr. Richard T. Moore and Ms. Creem moved that the proposed new text be amended moved that the bill be amended by inserting, after section xx, the following new section:-

SECTION XX. The General Laws are hereby amended by inserting after chapter 3 the following chapter:--

CHAPTER 3A.

THE SUNSET ACT.

Section 1. There is hereby established a procedure for the identification and elimination of waste, duplication and inefficiency in state government advisory committees and state boards established by statute, regulation or executive order to be known as the Sunset Act.

Section 2. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Agency”, an agency as defined in section 1 of chapter 29.

“Authority”, an authority as defined in section 1 of chapter 29.

“Advisory committee”, a board, commission, committee, council, or other entity established under state law whose primary function is to advise the legislature, a state agency or state authority.

“Commission”, the Sunset Advisory Commission established in section 3.

“State board”, a board, commission, committee, council, or other entity established under state law with a specific mission including, but not limited to, licensure or discipline of certain professionals, regulation or oversight of certain state or local authorities or industries, or activities that promote the health, safety and welfare of the citizens of the commonwealth. The entity may issue or review complaints and render decisions. The entity may report to cabinet-level units of government, known as executive offices or secretariats, or be independent divisions or departments.

Section 3.   (a) There shall be a Sunset Advisory Commission consisting of 3 members of the senate, 1 of whom shall be selected by the president of the senate, 1 of whom shall be appointed by the minority leader of the senate, and 1 of whom shall be the chair of the senate committee on post audit and oversight, 3 members of house, 1 of whom shall be appointed by the speaker of the house of representatives, 1 of whom shall be appointed by the minority leader of the house of representatives, and 1 of whom shall be the chair of the house committee on post audit and oversight committee, 1 member from the Pioneer Institute,  1 member from Common Cause, 1 member from the McCormack Institute for Public Affairs and 1 member from the Associated Industries of Massachusetts. The president of the senate and the speaker of the house may serve as legislative appointees.

(b) An individual shall not be eligible for appointment as a public member if the individual or the individual’s spouse is:

(1) appointed to or employed by an advisory committee or state board that the commission will review, or an agency or authority under which said advisory committee or state board is organized, during the term for which the individual would serve;

(2) employed by, participating in the management of, or having, directly or indirectly, more than a 10 percent interest in a business entity or other organization reviewed, regulated, or overseen by an advisory committee or state board the commission will review (3) required to register as an executive or legislative agent under section 41 of chapter 3.

(c) A public member of the commission shall be removed if the member does not have the qualifications required by subsection (b) for appointment to the commission at the time of appointment or does not maintain the qualifications while serving on the commission; provided, however that the validity of the commission’s action shall be unaffected if taken when a ground for removal of a public member from the commission exists.

(d) Legislative members shall serve 2-year terms, conterminous with their service as elected members of the legislature. If a legislative member ceases to be a member of the legislature, the legislator’s position shall be declared vacant, and the balance of the term filled by another legislator appointed in the same manner as the previous appointee. If the president of the senate or the speaker of the house serves on the commission, service continues until resignation from the commission or until the individual ceases to hold the office.  Public members shall serve 2-year terms expiring January 1 of each odd-numbered year.

(e) Members other than the president of the senate and the speaker of the house are subject to the following restrictions:

(1)after a public member serves 6 consecutive years on the commission, the individual shall not be eligible for appointment to another term or part of a term until the expiration of 2 years;

(2) a legislative member who serves a full term may not be appointed to an immediately succeeding term; and

(3) a public member may not serve more than 3 consecutive 2-year terms; provided, however, that, for purposes of this prohibition, a member is considered to have served a term only if the member has served more than half of the term.

(f) The president of the senate and the speaker of the house shall make their appointments before February 1 of each odd-numbered year.

(g) If a legislative member ceases to be a member of the house from which the member was appointed, the seat held by that member shall be considered vacant.

(h) If a vacancy occurs, the appropriate appointing authority shall appoint a person to serve for the remainder of the unexpired term in the same manner as the original appointment.

(i) The commission shall have a chair and a vice-chair as presiding officers.  The chair and vice-chair positions must alternate every 2 years between the 2 membership groups appointed by the president of the senate and the speaker of the house. The chair and vice-chair shall not be from the same membership group. The president of the senate shall designate a presiding officer from the president’s appointed membership group and the speaker shall designate the other presiding officer from the speaker’s appointed membership group.

(j) Seven members of the commission shall constitute a quorum. A final action or recommendation may not be made unless approved by a recorded roll call vote of a majority of members appointed by the president of the senate and the speaker of the house. All other actions by the commission shall be decided by a majority of the members present and voting, so long as a quorum is present.

(k) Subject to appropriation, each public member of the commission shall be entitled to reimbursement for actual and necessary expenses incurred in performing commission duties.

Section 4.  The commission shall adopt rules necessary to carry out this chapter.

Section 5.  Before July 1 of the odd-numbered year before the year in which an advisory committee or state board subject to this chapter is abolished, the advisory committee or state board shall report to the commission:

(1) information regarding the application to the advisory committee or state board authority of the criteria set forth in section 9; and

(2) any other information that the advisory committee or state board considers appropriate or that the commission requests.

Section 6.

(a) Within 1 year of the appointment and qualification of the members of the commission, and the organization of the commission staff, the commission shall assign sunset dates for each advisory committee or state board of the commonwealth, in a six year review cycle, and shall notify the head of the agency, authority, executive office, division,

Department, or other such entity under which said advisory committee or state board is organized. The commission shall then file legislation with the general court to implement the abolition schedule.

(b) The six year review cycle shall be in accordance with the following: (1) those advisory committees or state boards relative to education, children and families, (2) those advisory committees or state boards relative to health and human services, (3) those advisory committees or state boards relative to public safety and corrections, (4) those advisory committees or state boards relative to transportation and infrastructure, (5) those advisory committees or state boards relative to environment, energy, and natural resources, (6) those advisory committees or state boards relative to administration and finance, housing, economic and workforce development, and all others.

(c) Before January 1 of the year in which an advisory committee or state board subject to this chapter is scheduled to be abolished, the commission shall:

(1) review and take action necessary to verify the reports submitted by the advisory committee or state board under this chapter;

(2) consult the house and senate committees on post audit and oversight, the state auditor, the inspector general and the state comptroller, or their successors, on the application to the advisory committee or state board of the criteria in section 9;

(3) conduct a review of the advisory committee or state board based on the criteria in section 9 and prepare a written report; and

(4) review the implementation of commission recommendations contained in the reports presented to the legislature during the preceding legislative session and the resulting legislation.

(d) The first review cycle shall occur in the second full year after enactment of this chapter

(e) The written report prepared by the commission under clause (3) of subsection (b) shall be a public record.

Section 7.

(a) Before February 1 of the year in which an advisory committee or state board subject to this chapter and is to be abolished, the commission shall conduct public hearings concerning, but not limited to, the application to the advisory committee or state board of the criteria in section 9.

(b) The commission may hold the public hearings after the review of the advisory committee or state board is complete and available to the public.

Section 8.

(a) At least once during each regular legislative session, the commission shall present to the legislature and the governor a report on the advisory committees or state boards reviewed.

(b) In the report the commission shall include:

(1) its findings under section 9;

(2) its recommendations under this chapter; and

(3)other information the commission considers necessary for a complete review of the advisory committee or state board.

Section 9. The commission and its staff shall consider the following criteria in determining whether a public need exists for the continuation of an advisory committee or state board or for the performance of the functions of the advisory committee or state board:

(a) the efficiency and effectiveness with which the advisory committee or state board operates;

(b)(1) an identification of the mission, goals, and objectives intended for the advisory committee or state board and of the problem or need that the advisory committee or state board was intended to address; and

(2) the extent to which the mission, goals and objectives have been achieved and the problem or need has been addressed;

(c)(1) an identification of any activities of the advisory committee or state board in addition to those granted by statute and need of the advisory committee or state board for those activities; and

(2) the extent to which those activities are needed;

(d) an assessment of authority of the advisory committee or state board relating to fees, inspections, enforcement and penalties;

(e) whether less restrictive or alternative methods of performing a function that the advisory committee or state board performs could adequately protect or provide service to the public;

(f) the extent to which the jurisdiction of the advisory committee or state board and the programs administered by the advisory committee or state board:

(1) overlap or duplicate those of other agencies, authorities, advisory committees, or state boards;

(2) coordinates with those agencies, authorities, advisory committees, or state boards, and

(3) can be consolidated with the programs of other agencies, authorities, advisory committees, or state boards;

(g) the promptness and effectiveness with which the advisory committee or state board addresses complaints concerning entities or other persons affected by the advisory committee or state board, including an assessment of the advisory committee’s or state board’s hearings process;

(h) an assessment of the advisory committee’s or state board’s rulemaking process and the extent to which the advisory committee or state board has encouraged participation by the public in making its rules and decisions and the extent to which the public participation has resulted in rules that benefit the public;

(i) the extent to which the advisory or state board committee has complied with:

(1)federal and state laws and applicable rules regarding equality of employment opportunity and the rights and privacy of individuals; and

(2) state law and applicable rules of any advisory committee or state board regarding purchasing guidelines and programs for historically underutilized businesses;

(j) the extent to which the advisory committee or state board issues and enforces rules relating to potential conflicts of interest of its appointees or employees, and chapter 268A;

(k) the extent to which the advisory committee or state board complies with chapters 66 and 66A and follows records management practices that enable the advisory committee or state board to respond efficiently to requests for public information;

(l) the effect of federal intervention or loss of federal funds if the advisory committee or state board is abolished;

(m) the extent to which the advisory committee or state board has issued bonds or otherwise incurred similar long-term obligations, the amount of outstanding bonded indebtedness for which the authority is responsible and the sustainability of another agency, authority, advisory committee or state board assuming responsibility for such long-term obligations;

(n) whether the advisory committee or state board is responsible for a retirement system for its appointees or employees, and the extent of the advisory committee’s or state board’s obligations and available funding under such retirement system and for other post-employment benefits for retired employees; and

(o) whether the advisory committee or state board utilizes an open and competitive bid process for third party contracts related to legal representation, bonds and fiscal management.

Section 10.

(a) In its report on an advisory committee or state board, the commission shall:

(1) make recommendations on the abolition, continuation or reorganization of each advisory committee or state board, and on the need for performance of the functions of the advisory committee or state board;

(2) make recommendations on the consolidation, transfer or reorganization of programs within agencies or authorities not under review when the programs duplicate functions performed in advisory committees or state boards under review;

(3) make recommendations to improve the operations of the advisory committee or state board, including management recommendations that do not require a change in the advisory committee’s or state board’s enabling statute; and

(4) make recommendations to improve the efficiency and transparency in third party contract awards related to legal representation, bonds and fiscal management, including, but not limited to, recommending utilization of an open and competitive bid process.

(b) The commission shall include the estimated fiscal impact of its recommendations and may recommend appropriation levels for certain programs to improve the operations of the advisory committee or state board, to be forwarded to the house and senate committees on ways and means and the executive office for administration and finance.

(c) The commission shall prepare drafts of legislation to carry out the commission’s recommendations under this section.

(d) After the legislature acts on the report, the commission shall present to the secretary of administration and finance, the commission’s recommendations that do not require a statutory change to be put into effect.

Section 11. In the 2-year period preceding the date scheduled for the abolition of a advisory committee or state board under this chapter, the commission may exempt certain advisory committees or state boards from the requirements of this chapter relating to staff reports, hearings, and reviews.

(a) The commission may only exempt an advisory committee or state board that has been inactive for a period of 2 years preceding the date the advisory committee or state board is scheduled for abolition or that has been rendered inactive by an action of the legislature.

(b) The commission’s action in exempting an advisory committee or state board under this section must be done by an affirmative record vote and must be decided by a majority of all members present and voting.

Section 12. During each legislative session, the staff of the commission shall monitor legislation affecting advisory committees or state boards that have undergone sunset review and shall periodically report to the members of the commission on proposed changes that would modify prior recommendations of the commission.

Section 13.

(a) During the annual session immediately before the abolition of an advisory committee or state board that is subject to this chapter, the legislature may continue the advisory committee or state board for a period not to exceed 12 years.

(b) This chapter shall not prohibit the legislature from:

(1) terminating an advisory committee or state board subject to this chapter at a date earlier than that provided in this chapter; or

(2) considering other legislation relative to an advisory committee or state board subject to this chapter.

Section 14.

(a) An advisory committee or state board that is abolished in an odd-numbered year may continue in existence until June 30 of the following year to conclude its business.  Unless the law provides otherwise, abolition does not reduce or otherwise limit the powers and authority of the advisory committee or state board during the concluding year. An advisory committee or state board is terminated and shall cease all activities at the expiration of the 1-year period. Unless the law provides otherwise, all rules that have been adopted by the agency or authority expire at the expiration of the 1-year period.

(b) An un-obligated or unexpended appropriation of an abolished advisory committee or state board shall lapse on September 1 of the year after abolition.

(c) Except as provided by subsection (f) or as otherwise provided by law, all money in a dedicated fund of an abolished advisory committee or state board on September 1 of the year after abolition shall be transferred to the General Fund.  The part of the law dedicating the money to a specific fund of an abolished agency becomes void on September 1 of the year after abolition.

(d) Unless otherwise provided otherwise, an abolished advisory committee or state board funded by the legislature may not spend or obligate any of the money appropriated beyond 1 year from the date of abolition.

(e) Unless the governor designates an appropriate advisory committee or state board as prescribed by subsection (f), property and records in the custody of an abolished advisory committee or state board on September 1 of the year after abolition shall be transferred to the state archives. If the governor designates an appropriate advisory committee or state board, the property and records shall be transferred to the designated advisory committee or state board.

(f) The legislature recognizes the state’s continuing obligation to pay bonded indebtedness and all other obligations, including lease, contract, and other written obligations, incurred by an advisory committee or state board abolished under this chapter, and this chapter shall not impair or impede the payment of bonded indebtedness and all other obligations, including lease, contract and other written obligations, in accordance with their terms. If an abolished advisory committee or state board has outstanding bonded indebtedness or other outstanding obligations, including lease, contract or other written obligations, the bonds and all other obligations, including lease, contract and other written obligations shall remain valid and enforceable in accordance with their terms and subject to all applicable terms and conditions of the laws and proceedings authorizing the bonds and all other obligations, including lease, contract and other written obligations. The governor shall designate an appropriate advisory committee or state board that shall continue to carry out all covenants contained in the bonds and in all other obligations, including lease, contract and other written obligations, to complete the construction of projects or the performance of other obligations, including lease, contract, and other written obligations. The designated advisory committee or state board shall provide payment from the sources of payment of the bond under the terms of the bonds and shall provide payment from the sources of payment of all other obligations, including lease, contract and other written obligations, under their terms, whether from taxes, revenues, or otherwise, until the bonds and interest on the bonds are paid in full and all other obligations, including lease, contract and other written obligations, are performed and paid in full. If the proceedings so provide, all funds established by laws or proceedings authorizing the bonds or authorizing other obligations, including lease, contract and other written obligations, shall remain with the comptroller or the previously designated trustees.  If the proceedings do not provide that the funds remain with the comptroller or the previously designated trustees, the funds shall be transferred to the designated advisory committee or state board.

Section 15.

(a) The commission may issue a subpoena to compel the attendance of witnesses and the production of books, records, papers and other objects necessary or proper for the purposes of the commission proceedings.  The subpoena may be served on a witness at any place in the commonwealth.

(b) If a majority of the commission directs the issuance of a subpoena, the chairman shall issue the subpoena in the name of the commission.

(c) If the chairman is absent, the chairman’s designee may issue a subpoena or other process in the same manner as the chairman.

(d) If necessary to obtain compliance with a subpoena or other process, the commission may issue attachments.  The attachments may be addressed to and served by a constable, sheriff or deputy sheriff in the commonwealth.

(e) Testimony taken under subpoena must be reduced to writing and given under oath subject to the penalties of perjury.

(f) A witness who attends a commission proceeding under process shall be paid the same fees and mileage paid witnesses in courts of the commonwealth.

Section 16.

(a) The commission may request the assistance of agencies and authorities. When assistance is requested, an officer or agent of said agency or authority shall reasonably assist the commission.

(b) In carrying out its functions under this chapter, the commission or its designated staff member may inspect the records, documents and files of any agency or authority.

Section 17.

(a) A working paper, including all documentary or other information, prepared and maintained by the commission staff in performing its duties under this chapter or other law to conduct an evaluation and prepare a report is exempted from the public disclosure requirements of chapter 66.

(b) A record held by another entity that is considered to be confidential by law and that the commission receives in connection with the performance of the commission’s functions under this chapter or another law remains confidential and is exempted from the public disclosure requirements of chapter 66.

Section 18.  If an employee is displaced because an advisory committee or state board is abolished, reorganized or continued, the head of the agency, authority, executive office, division,  department, or other such entity under which said advisory committee or state board is organized and the personnel administrator of the commonwealth shall make a reasonable effort to relocate the displaced employee. Except as otherwise expressly provided, abolition of an advisory committee or state board shall not affect the rights and duties that matured, penalties that were incurred, civil or criminal liabilities that arose, or proceedings that were begun before the effective date of abolition.

Section 19.

(a) Each bill filed in the legislature that would create a new advisory committee or state board shall be reviewed by the commission.

(b) The commission shall review the bill to determine whether:

(1) the proposed functions of the advisory committee or state board could be administered by 1 or more existing agencies, authorities, advisory committees, or state boards;

(2) the form of regulation, if any, proposed by the bill is the least restrictive form of regulation that will adequately protect the public;

(3) the bill provides for adequate public input regarding any regulatory function proposed by the bill; and

(4) the bill provides for adequate protection against conflicts of interest within the advisory committee or state board.

(c) On request, the commission shall forward a written comment on the legislation to the author of the bill and to the presiding officer of the legislative committee to which the bill has been referred.

Section 20.  (a) The commission may accept from any source any grant, donation, gift or other form of conveyance of land, money, other real or personal property or other item of value made to the commonwealth or the commission for carrying out the purpose of this section and sections 1 to 19, inclusive.