S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   263

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  LITTLE -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

            CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY

proposing amendments to article 9 of the constitution,  in  relation  to
  prohibiting unfunded mandates

  Section  1.  Resolved  (if the Assembly concur), That article 9 of the
constitution be amended by adding a new section 4 to read as follows:
  PROHIBITION ON UNFUNDED MANDATES; COUNCIL ON LOCAL MANDATES.
  S 4. (A) (1) ANY PROVISION OF LAW DETERMINED IN ACCORDANCE  WITH  THIS
SECTION  TO BE AN UNFUNDED MANDATE SHALL CEASE TO BE MANDATORY IN EFFECT
AND SHALL BECOME VOLUNTARY IN OPERATION.
  (2) A PROVISION OF LAW THAT REQUIRES ONE OR  MORE  POLITICAL  SUBDIVI-
SIONS  TO  EXPEND  FUNDS OR TO TAKE ACTIONS REQUIRING THE EXPENDITURE OF
FUNDS SHALL BE DEEMED AN UNFUNDED  MANDATE  IF  SUCH  PROVISION  OF  LAW
RESULTS IN AN AGGREGATE NET INCREASE IN NECESSARY DIRECT EXPENDITURES BY
THE  POLITICAL  SUBDIVISIONS  OF  THE  STATE.    ANY  SUCH AGGREGATE NET
INCREASE IN EXPENDITURES SHALL BE OFFSET  BY:  (I)  MONIES  PROVIDED  TO
POLITICAL   SUBDIVISIONS  FOR  THE  SPECIFIC  PURPOSE  OF  FUNDING  SUCH
PROVISION OF LAW; AND (II) DECREASES IN EXPENDITURES EXPECTED TO  RESULT
FROM OTHER PROVISIONS OF LAW ENACTED CONCURRENTLY THEREWITH THAT REPEAL,
REDUCE  OR  MODIFY  EXISTING  MANDATES  ON POLITICAL SUBDIVISIONS.   FOR
PURPOSES OF THIS SECTION, ALL BUDGET BILLS AND LEGISLATION NECESSARY  TO
IMPLEMENT THE BUDGET ENACTED PURSUANT TO ARTICLE SEVEN OF THIS CONSTITU-
TION SHALL BE DEEMED TO HAVE BEEN CONCURRENTLY ENACTED INTO LAW.
  (3)  FOR  PURPOSES  OF  THIS SECTION, THE TERM "POLITICAL SUBDIVISION"
SHALL MEAN A COUNTY, CITY, TOWN, VILLAGE,  SCHOOL  DISTRICT  OR  SPECIAL
DISTRICT,  AND  SHALL INCLUDE ANY AGENCY, AUTHORITY, COMMISSION, DEPART-
MENT OR INSTRUMENTALITY THEREOF.
  (4) FOR PURPOSES OF THIS SECTION, THE TERM "LAW" SHALL MEAN A  STATUTE
ENACTED  BY  THE LEGISLATURE, AN EXECUTIVE ORDER ISSUED BY THE GOVERNOR,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD89005-01-9

S. 263                              2

AND A RULE OR REGULATION PROMULGATED  BY  A  STATE  AGENCY,  DEPARTMENT,
BOARD, BUREAU, OFFICER, AUTHORITY OR COMMISSION.
  (B)  NO  LAW  SHALL BE CONSIDERED AN UNFUNDED MANDATE IF THE AGGREGATE
NET INCREASE IN REQUIRED DIRECT EXPENDITURES BY ANY ONE POLITICAL SUBDI-
VISION IS LESS THAN TWENTY THOUSAND DOLLARS PER YEAR, OR ON TWO OR  MORE
POLITICAL  SUBDIVISIONS  COLLECTIVELY  OR ON A CITY WITH A POPULATION OF
ONE MILLION OR MORE IS LESS THAN ONE HUNDRED THOUSAND DOLLARS PER YEAR.
  (C) NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION TO THE CONTRA-
RY, THE FOLLOWING CATEGORIES OF BILLS SHALL NOT BE  CONSIDERED  UNFUNDED
MANDATES:
  (1)  THOSE  WHICH ARE REQUIRED TO COMPLY WITH FEDERAL LAWS OR RULES OR
TO MEET ELIGIBILITY STANDARDS FOR FEDERAL ENTITLEMENTS;
  (2) THOSE WHICH ARE IMPOSED  ON  BOTH  GOVERNMENT  AND  NON-GOVERNMENT
ENTITIES IN THE SAME OR SUBSTANTIALLY SIMILAR CIRCUMSTANCES;
  (3)  THOSE WHICH PERMIT, ESTABLISH OR ENABLE ONLY OPTIONAL PROGRAMS OR
SERVICES;
  (4) THOSE WHICH ARE BUDGET BILLS SUBMITTED BY THE GOVERNOR PURSUANT TO
ARTICLE SEVEN OF THIS CONSTITUTION, BUT ONLY IF  SUCH  BILLS  IMPLEMENT,
REVISE, AMEND OR CONTINUE PROGRAMS OR MANDATES WHICH CURRENTLY EXIST AND
SUCH BILLS DO NOT IMPOSE ANY NEW MANDATES WHICH, IF TAKEN BY THEMSELVES,
WOULD OTHERWISE BE SUBJECT TO THE RESTRICTIONS OF THIS SECTION;
  (5) THOSE WHICH REPEAL, REVISE OR EASE AN EXISTING MANDATE OR REQUIRE-
MENT,  OR  WHICH  REAPPORTION  THE COSTS OF ACTIVITIES BETWEEN BOARDS OF
EDUCATION, COUNTIES AND MUNICIPALITIES;
  (6) THOSE WHICH STEM FROM FAILURE TO COMPLY  WITH  PREVIOUSLY  ENACTED
LAWS, OR RULES OR REGULATIONS ISSUED PURSUANT TO A LAW;
  (7)  THOSE WHICH ARISE FROM A RULING BY A COURT OF COMPETENT JURISDIC-
TION;
  (8) THOSE WHICH ARISE FROM AN EXECUTIVE ORDER OF THE GOVERNOR EXERCIS-
ING HIS EMERGENCY POWERS;
  (9) THOSE WHICH IMPLEMENT PROVISIONS OF THIS CONSTITUTION;
  (10) THOSE WHICH ARE ENACTED AFTER A PUBLIC HEARING, HELD AFTER PUBLIC
NOTICE THAT UNFUNDED MANDATES WILL BE CONSIDERED,  FOR  WHICH  A  FISCAL
ANALYSIS  IS  AVAILABLE  AT THE TIME OF THE PUBLIC HEARING AND WHICH, IN
ADDITION TO COMPLYING WITH ALL OTHER REQUIREMENTS  WITH  REGARD  TO  THE
ENACTMENT  OF  A LAW, ARE PASSED BY A TWO-THIRDS VOTE OF BOTH THE SENATE
AND ASSEMBLY; AND
  (11) THOSE WHICH ARE THE RESULT OF THE PASSAGE OF A HOME RULE  MESSAGE
WHEREBY  A  LOCAL GOVERNMENT REQUESTS AUTHORITY TO IMPLEMENT THE PROGRAM
OR SERVICE SPECIFIED IN THE STATUTE, AND THE STATUTE IMPOSES COSTS  ONLY
UPON  THAT  LOCAL  GOVERNMENT WHICH REQUESTS THE AUTHORITY TO IMPOSE THE
PROGRAM OR SERVICE.
  (D) THE  LEGISLATURE  SHALL  ESTABLISH  BY  LAW  A  COUNCIL  ON  LOCAL
MANDATES.  THE COUNCIL SHALL CONSIST OF ELEVEN MEMBERS OF WHOM SIX SHALL
BE  APPOINTED  BY  THE  GOVERNOR,  ONE BY THE TEMPORARY PRESIDENT OF THE
SENATE, ONE BY THE SPEAKER OF THE ASSEMBLY, ONE BY THE COMPTROLLER,  ONE
BY  THE  ATTORNEY  GENERAL,  AND  ONE BY THE CHIEF JUDGE OF THE COURT OF
APPEALS.  THE GOVERNOR SHALL DESIGNATE A CHAIR FROM AMONG  THE  MEMBERS.
THE  LEGISLATURE SHALL ESTABLISH BY LAW QUALIFICATIONS FOR SUCH APPOINT-
MENTS, WHICH SHALL INCLUDE THE REQUIREMENT THAT  THREE  OF  THE  MEMBERS
APPOINTED  BY  THE GOVERNOR, THE MEMBER APPOINTED BY THE COMPTROLLER AND
THE MEMBER APPOINTED BY THE ATTORNEY GENERAL SHALL BE MADE ON THE RECOM-
MENDATION OF POLITICAL SUBDIVISIONS OR  DULY  APPOINTED  REPRESENTATIVES
THEREOF.   ALL LEGISLATION REQUIRED BY THIS SUBDIVISION SHALL BE ENACTED
INTO LAW WITHIN SIXTY DAYS AFTER THE EFFECTIVE DATE OF THIS SECTION, AND

S. 263                              3

INITIAL APPOINTMENTS TO THE COUNCIL SHALL  BE  MADE  WITHIN  SIXTY  DAYS
THEREAFTER.
  (E) (1) THE COUNCIL SHALL TIMELY RESOLVE ANY COMPLAINT BY AN AGGRIEVED
POLITICAL  SUBDIVISION  THAT  A PROVISION OF LAW CONSTITUTES AN UNFUNDED
MANDATE.  A RULING OF THE COUNCIL SHALL BE RESTRICTED  TO  THE  SPECIFIC
PROVISION  OF LAW THAT CONSTITUTES AN UNFUNDED MANDATE AND SHALL, TO THE
EXTENT PRACTICABLE, LEAVE INTACT THE REMAINDER OF THE LAW.
  (2) DETERMINATIONS OF THE COUNCIL SHALL BE SUBJECT TO  REVIEW  BY  THE
SUPREME  COURT IN THE SAME MANNER AND UNDER THE SAME STANDARDS OF REVIEW
AS ADMINISTRATIVE DETERMINATIONS  OF  STATE  AGENCIES  AND  DEPARTMENTS;
PROVIDED, HOWEVER, THAT THE STATE MAY SEEK JUDICIAL REVIEW OF A DETERMI-
NATION  BY  THE  COUNCIL THAT A PROVISION OF LAW CONSTITUTES AN UNFUNDED
MANDATE.  PROCEEDINGS TO REVIEW COUNCIL DETERMINATIONS  SHALL  BE  GIVEN
PRECEDENCE OVER ALL OTHER CAUSES AND PROCEEDINGS BEFORE THE COURT.
  S  2.  Resolved (if the Assembly concur), That the foregoing amendment
be referred to the first regular legislative session convening after the
next succeeding general election of members of  the  assembly,  and,  in
conformity  with  section  1  of  article  19  of  the  constitution, be
published for 3 months previous to the time of such election.