Senate Bill S7855

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7855
 
                             I N  S E N A T E
 
                             February 26, 2020
                                ___________
 
 Introduced  by  Sen.  LIU  --  read  twice and ordered printed, and when
   printed to be committed to the Committee on Corporations,  Authorities
   and Commissions
 
 AN  ACT  to  amend the public authorities law, the executive law and the
   public officers law, in relation to clarifying the application of  the
   accountability standards, open meetings law and freedom of information
   requirements to local development corporations
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (a) of subdivision  2  of  section  2800  of  the
 public  authorities  law, as amended by chapter 506 of the laws of 2009,
 is amended to read as follows:
   (a) Every local authority, [continued or created by  this  chapter  or
 any  other  chapter  of  the  laws of the state of New York] PURSUANT TO
 SECTION TWO OF THIS CHAPTER shall submit to the chief executive officer,
 the chief fiscal officer, the chairperson of the legislative body of the
 local government or local governments and the authorities budget office,
 within ninety days after the end of its  fiscal  year,  a  complete  and
 detailed  report or reports setting forth: (1) its operations and accom-
 plishments; (2) its financial reports, including (i) audited  financials
 in  accordance  with  all applicable regulations and following generally
 accepted accounting principles as defined in subdivision ten of  section
 two  of  the  state finance law, (ii) grants and subsidy programs, (iii)
 operating and financial risks, (iv) current ratings if any, of its bonds
 issued by recognized municipal bond rating agencies and notice of chang-
 es in such ratings, and (v) long-term liabilities, including leases  and
 employee  benefit  plans;  (3)  its  mission  statement and measurements
 including its most recent measurement report;  (4)  a  schedule  of  its
 bonds and notes outstanding at the end of its fiscal year, together with
 a statement of the amounts redeemed and incurred during such fiscal year
 as  part  of a schedule of debt issuance that includes the date of issu-
 ance, term, amount, interest rate and means of repayment.  Additionally,
 the   debt   schedule   shall  also  include  all  refinancings,  calls,
 refundings, defeasements and interest rate exchange or other such agree-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14773-01-0

 S. 7855                             2
 
 ments, and for any debt issued during the reporting year,  the  schedule
 shall  also  include a detailed list of costs of issuance for such debt;
 (5) a compensation schedule in  addition  to  the  report  described  in
 section  twenty-eight  hundred  six of this title that shall include, by
 position, title and name of the person holding such position  or  title,
 the  salary,  compensation,  allowance  and/or  benefits provided to any
 officer, director or employee in a decision making or  managerial  posi-
 tion of such authority whose salary is in excess of one hundred thousand
 dollars;  (5-a)  biographical  information,  not  including confidential
 personal information, for all directors and officers and  employees  for
 whom  salary reporting is required under subparagraph five of this para-
 graph; (6) the projects undertaken by such  authority  during  the  past
 year;  (7) a listing and description, in addition to the report required
 by paragraph a of subdivision  three  of  section  twenty-eight  hundred
 ninety-six of this article of all real property of such authority having
 an  estimated  fair  market  value in excess of fifteen thousand dollars
 that the authority acquires or  disposes  of  during  such  period.  The
 report shall contain the price received or paid by the authority and the
 name  of the purchaser or seller for all such property sold or bought by
 the authority during such period; (8) such authority's code  of  ethics;
 (9) an assessment of the effectiveness of its internal control structure
 and  procedures; (10) a copy of the legislation that forms the statutory
 basis of the authority; (11) a description  of  the  authority  and  its
 board  structure,  including  (i)  names  of  committees  and  committee
 members, (ii) lists of board meetings and attendance, (iii) descriptions
 of major authority units, subsidiaries, (iv) number  of  employees,  and
 (v)  organizational chart; (12) its charter, if any, and by-laws; (13) a
 listing of material  changes  in  operations  and  programs  during  the
 reporting  year; (14) at a minimum a four-year financial plan, including
 (i) a current and projected capital budget, and (ii) an operating budget
 report, including an actual versus estimated budget,  with  an  analysis
 and  measurement  of financial and operating performance; (15) its board
 performance evaluations provided, however, that such  evaluations  shall
 not  be  subject  to disclosure under article six of the public officers
 law; (16) a description of the total amounts of assets, services or both
 assets and services bought or sold without competitive bidding,  includ-
 ing  (i)  the nature of those assets and services, (ii) the names of the
 counterparties, and (iii) where the contract price for assets  purchased
 exceeds  fair  market value, or where the contract price for assets sold
 is less than fair market value, a detailed explanation of the justifica-
 tion for making the purchase or sale without competitive bidding, and  a
 certification by the chief executive officer and chief financial officer
 of  the  public  authority  that  they  have  reviewed the terms of such
 purchase or sale and determined that it complies with applicable law and
 procurement guidelines; and (17) a description of any  material  pending
 litigation  in  which  the  authority  is involved as a party during the
 reporting year,  except  that  no  provider  of  medical  services  need
 disclose  information about pending malpractice claims beyond the exist-
 ence of such claims.
   § 2. Subdivision 2 of section 2801 of the public authorities  law,  as
 amended  by  chapter  506  of  the  laws  of 2009, is amended to read as
 follows:
   2. Local authorities. For the local authority fiscal year ending on or
 after December thirty-first, two thousand seven and annually thereafter,
 every local authority [heretofore or hereafter continued or  created  by
 this chapter or any other chapter of the laws of the state of New York],

 S. 7855                             3
 
 PURSUANT TO SECTION TWO OF THIS CHAPTER, shall submit to the chief exec-
 utive officer, the chief fiscal officer, the chairperson of the legisla-
 tive  body  of  the  local government or governments and the authorities
 budget  office for their information, annually not more than ninety days
 and not less than sixty days before the commencement of its fiscal year,
 in the form submitted to its members or trustees, budget information  on
 operations and capital construction setting forth the estimated receipts
 and  expenditures  for the next fiscal year and the current fiscal year,
 and the actual receipts and expenditures for the last  completed  fiscal
 year.
   §  3.  Subdivision 1 of section 2895 of the public authorities law, as
 added by chapter 766 of the laws of 2005, is amended to read as follows:
   1. "Contracting officer" shall mean  the  officer  or  employee  of  a
 public  authority  OR  LOCAL  AUTHORITY  PURSUANT TO SECTION TWO OF THIS
 CHAPTER who shall be appointed by resolution of the board of the  public
 OR LOCAL authority to be responsible for the disposition of property.
   §  4.  Section 2896 of the public authorities law, as added by chapter
 766 of the laws of 2005 and subdivision 3 as amended by chapter  506  of
 the laws of 2009, is amended to read as follows:
   §  2896.  Duties  of  public AND LOCAL authorities with respect to the
 disposal of property. 1. Every PUBLIC AND LOCAL authority, as defined in
 section two of this chapter, shall  adopt  by  resolution  comprehensive
 guidelines which shall (a) detail the public OR LOCAL authority's opera-
 tive policy and instructions regarding the use, awarding, monitoring and
 reporting of contracts for the disposal of property, and (b) designate a
 contracting  officer  who  shall  be responsible for the public OR LOCAL
 authority's compliance with, and enforcement of, such  guidelines.  Such
 guidelines  shall  be  consistent  with, and shall require the public OR
 LOCAL authority's contracting activities to comply  with  this  section,
 the  [authorities] AUTHORITY'S enabling legislation and any other appli-
 cable law for the disposal of property, except that such guidelines  may
 be  stricter than the provisions of this section, the authorities enabl-
 ing legislation and any other applicable law for the disposal of proper-
 ty if the public OR LOCAL authority  determines  that  additional  safe-
 guards  are  necessary  to  assure  the  integrity  of  its  disposition
 activities. Guidelines approved by the public OR LOCAL  authority  shall
 be annually reviewed and approved by the governing body of the public OR
 LOCAL  authority.  On  or  before  the thirty-first day of March in each
 year, the public OR LOCAL authority shall file with  the  comptroller  a
 copy of the guidelines most recently reviewed and approved by the public
 OR  LOCAL  authority, including the name of the public OR LOCAL authori-
 ty's designated contracting officer. At the time of filing  such  guide-
 lines  with  the comptroller, every public OR LOCAL authority shall also
 post such  guidelines  on  the  public  OR  LOCAL  authority's  internet
 website.  IF THE LOCAL AUTHORITY DOES NOT MAINTAIN ITS OWN WEBSITE, THEN
 THE GUIDELINES SHALL BE POSTED ON THE  WEBSITE  OF  THE  LOCALITY  WHICH
 CREATED SUCH AUTHORITY. Guidelines posted on the public OR LOCAL author-
 ity's  internet  website  shall  be  maintained on such website at least
 until the procurement guidelines for the following year  are  posted  on
 such website.
   2. Each public OR LOCAL authority shall:
   a. maintain adequate inventory controls and accountability systems for
 all property under its control;
   b.  periodically  inventory  such property to determine which property
 shall be disposed of;

 S. 7855                             4
 
   c. produce a written report of such property in accordance with subdi-
 vision three of this section;
   d.  transfer  or  dispose  of such property as promptly as possible in
 accordance with section twenty-eight hundred ninety-seven of this title.
   3. a. Each public OR LOCAL authority shall publish, not less frequent-
 ly than annually, a report listing all real property of  the  public  OR
 LOCAL  authority.  Such report shall include a list and full description
 of all real and personal property disposed of during  such  period.  The
 report shall contain the price received by the public OR LOCAL authority
 and  the  name of the purchaser for all such property sold by [the] SUCH
 public OR LOCAL authority during such period.
   b. The public authority shall deliver copies of  such  report  to  the
 comptroller,  the  director  of  the budget, the commissioner of general
 services, the legislature and the authorities budget office.
   C. THE LOCAL AUTHORITY SHALL DELIVER COPIES  OF  SUCH  REPORT  TO  THE
 COMPTROLLER, THE CHIEF EXECUTIVE OFFICER OF THE LOCALITY, AND THE CHAIR-
 PERSON OF THE LEGISLATIVE BODY OF THE LOCAL GOVERNMENT.
   §  5.  Section 2897 of the public authorities law, as added by chapter
 766 of the laws of 2005, subdivision 3 and paragraphs c and d of  subdi-
 vision  6  as  amended  and subdivision 7 as added by chapter 506 of the
 laws of 2009 and paragraph e of subdivision 6 as added by chapter 156 of
 the laws of 2012, is amended to read as follows:
   § 2897. Disposal of public OR LOCAL authority property. 1. Supervision
 and direction.  Except  as  otherwise  provided  in  this  section,  the
 contracting  officer  designated by each public OR LOCAL authority shall
 have supervision and direction over the disposition of property of  such
 public OR LOCAL authority.
   2. Custody and control. (A) The custody and control of the property of
 a  public  authority,  pending its disposition, and the disposal of such
 property, shall be performed by the public authority in possession ther-
 eof or by the commissioner of general services when so authorized  under
 this section.
   (B)  THE  CUSTODY  AND  CONTROL  OF THE PROPERTY OF A LOCAL AUTHORITY,
 PENDING ITS DISPOSITION, AND THE DISPOSAL  OF  SUCH  PROPERTY  SHALL  BE
 PERFORMED BY THE LOCAL AUTHORITY IN POSSESSION THEREOF.
   3.  Method  of  disposition.  Subject  to section twenty-eight hundred
 ninety-six of this title, any public OR LOCAL authority may  dispose  of
 property  for  not  less  than the fair market value of such property by
 sale, exchange, or transfer, for cash, credit, or other  property,  with
 or  without  warranty,  and  upon such other terms and conditions as the
 contracting officer deems proper, and it may execute such documents  for
 the  transfer of title or other interest in property and take such other
 action as it deems necessary or proper to dispose of such property under
 the provisions of this section. Provided, however, that  no  disposition
 of real property, or any interest in real property, shall be made unless
 an appraisal of the value of such property has been made by an independ-
 ent  appraiser  and  included  in  the  record  of the transaction, and,
 provided further, that no  disposition  of  any  other  property,  which
 because of its unique nature or the unique circumstances of the proposed
 transaction  is  not readily valued by reference to an active market for
 similar property, shall be made without a similar appraisal.
   4. Sales by the commissioner of general services.  When  it  shall  be
 deemed advantageous to the state, any public authority may enter into an
 agreement  with  the  commissioner  of general services where under such
 commissioner may dispose of property  of  such  public  authority  under
 terms  and  conditions agreed to by the public authority and the commis-

 S. 7855                             5
 
 sioner of general services. In disposing  of  any  such  property  of  a
 public authority, the commissioner of general services shall be bound by
 the  terms of this title and references to the contracting officer shall
 be deemed to refer to such commissioner.
   5. Validity of deed, bill of sale, lease, or other instrument. A deed,
 bill of sale, lease, or other instrument executed by or on behalf of any
 public  OR  LOCAL  authority,  purporting to transfer title or any other
 interest in property of a public OR LOCAL  authority  under  this  title
 shall  be  conclusive evidence of compliance with the provisions of this
 title insofar as concerns title or other interest of any bona fide gran-
 tee or transferee who has given valuable consideration for such title or
 other interest and has not received actual  or  constructive  notice  of
 lack of such compliance prior to the closing.
   6. Bids for disposal; advertising; procedure; disposal by negotiation;
 explanatory  statement.  a.  All  disposals or contracts for disposal of
 property of a public OR  LOCAL  authority  made  or  authorized  by  the
 contracting  officer  shall  be made after publicly advertising for bids
 except as provided in paragraph c of this subdivision.
   b. Whenever public advertising for bids is required under paragraph  a
 of this subdivision:
   (i) the advertisement for bids shall be made at such time prior to the
 disposal or contract, through such methods, and on such terms and condi-
 tions  as  shall  permit  full  and free competition consistent with the
 value and nature of the property;
   (ii) all bids shall be publicly disclosed at the time and place stated
 in the advertisement; and
   (iii) the award shall be made with reasonable promptness by notice  to
 the responsible bidder whose bid, conforming to the invitation for bids,
 will  be most advantageous to the state OR THE LOCALITY, price and other
 factors considered; provided, that all bids may be rejected when  it  is
 in the public interest to do so.
   c.  Disposals and contracts for disposal of property may be negotiated
 or made by public auction without regard to paragraphs a and b  of  this
 subdivision  but  subject  to  obtaining such competition as is feasible
 under the circumstances, if:
   (i) the personal property involved has  qualities  separate  from  the
 utilitarian purpose of such property, such as artistic quality, antiqui-
 ty, historical significance, rarity, or other quality of similar effect,
 that would tend to increase its value, or if the personal property is to
 be sold in such quantity that, if it were disposed of under paragraphs a
 and  b  of  this  subdivision, would adversely affect the state or local
 market for such property, and the estimated fair market  value  of  such
 property  and  other  satisfactory  terms of disposal can be obtained by
 negotiation;
   (ii) the fair market value of the property  does  not  exceed  fifteen
 thousand dollars;
   (iii) bid prices after advertising therefor are not reasonable, either
 as  to  all or some part of the property, or have not been independently
 arrived at in open competition;
   (iv) the disposal will be to the state or any  political  subdivision,
 and  the estimated fair market value of the property and other satisfac-
 tory terms of disposal are obtained by negotiation; or
   (v) under those circumstances permitted by subdivision seven  of  this
 section; or
   (vi) such action is otherwise authorized by law.

 S. 7855                             6
 
   d. (i) An explanatory statement shall be prepared of the circumstances
 of each disposal by negotiation of:
   (A)  any personal property which has an estimated fair market value in
 excess of fifteen thousand dollars;
   (B) any real property that has  an  estimated  fair  market  value  in
 excess  of  one  hundred thousand dollars, except that any real property
 disposed of by lease or exchange shall only be subject  to  clauses  (C)
 and (D) of this subparagraph;
   (C)  any  real  property disposed of by lease, if the estimated annual
 rent over the term of  the  lease  is  in  excess  of  fifteen  thousand
 dollars;
   (D)  any  real property or real and related personal property disposed
 of by exchange, regardless of value, or any property  any  part  of  the
 consideration for which is real property.
   (ii)  Each such statement shall be transmitted to the persons entitled
 to receive copies of the  report  required  under  section  twenty-eight
 hundred ninety-six of this title not less than ninety days in advance of
 such disposal, and a copy thereof shall be preserved in the files of the
 public authority making such disposal.
   e.  Disposals and contracts for disposal of real property by the canal
 corporation may be made by negotiated sale rather  than  public  auction
 provided that all of the following conditions have been satisfied:
   (i)  The  canal corporation has determined that: such real property is
 no longer necessary or useful to the purposes of the canal  corporation;
 disposal  of  such real property complies with all applicable provisions
 of the canal law; and disposal of such real  property  is  in  the  best
 interest of the canal corporation;
   (ii)  An  appraisal of the fair market value of such property has been
 made by an independent appraiser and included in the record of the tran-
 saction;
   (iii) The fair market value of such  real  property  is  greater  than
 fifteen  thousand  dollars  but  not  greater than seventy-five thousand
 dollars;
   (iv) Such real property was improved prior to  April  first,  nineteen
 hundred  ninety-two under a municipal permit or a permit issued pursuant
 to section one hundred of the canal law, thereby creating  an  encroach-
 ment on canal corporation real property;
   (v)  The  purchaser of such real property is, or will be, the owner of
 the improvement that either  fully  or  partially  encroaches  on  canal
 corporation real property; and
   (vi)  The  consideration  paid for such real property will be not less
 than the fair market value of the real property exclusive of the  value,
 fair market or otherwise, of the encroaching improvements.
   7.  Disposal  of property for less than fair market value. a. No asset
 owned, leased or otherwise in the control of a public OR LOCAL authority
 may be sold, leased, or otherwise  alienated  for  less  than  its  fair
 market value except if:
   (i)  the  transferee  is  a government or other public entity, and the
 terms and conditions of the transfer require that the ownership and  use
 of the asset will remain with the government or any other public entity;
   (ii)  the  purpose  of  the transfer is within the purpose, mission or
 governing statute of the public OR LOCAL authority; or
   (iii) in the event a public OR LOCAL authority seeks  to  transfer  an
 asset  for  less than its fair market value to other than a governmental
 entity, which disposal would not  be  consistent  with  the  authority's
 mission,  purpose  or  governing  statutes, such authority shall provide

 S. 7855                             7
 
 written notification thereof to the governor, the speaker of the  assem-
 bly, and the temporary president of the senate, and such proposed trans-
 fer  shall  be  subject  to  denial  by the governor, the senate, or the
 assembly.    Denial  by  the  governor  shall  take the form of a signed
 certification by the governor. Denial by either house of the legislature
 shall take the form of a resolution by such house. The governor and each
 house of the legislature shall take any such action within sixty days of
 receiving notification of such proposed transfer during  the  months  of
 January  through June, provided that if the legislature receives notifi-
 cation of a proposed transfer during the months of July  through  Decem-
 ber, the legislature may take any such action within sixty days of Janu-
 ary  first of the following year. If no such resolution or certification
 is performed within sixty days of  such  notification  of  the  proposed
 transfer to the governor, senate, and assembly, the public authority may
 effectuate  such  transfer.  Provided,  however,  that with respect to a
 below market transfer by a  local  authority  that  is  not  within  the
 purpose,  mission  or  governing  statute of the local authority, if the
 governing statute provides for the approval  of  such  transfer  by  the
 executive and legislative branches of the political subdivision in which
 such  local  authority resides, and the transfer is of property obtained
 by the authority from that political  subdivision,  then  such  approval
 shall be sufficient to permit the transfer.
   b.  In the event a below fair market value asset transfer is proposed,
 the following information must be provided to the  authority  board  and
 the public:
   (i) a full description of the asset;
   (ii)  an appraisal of the fair market value of the asset and any other
 information establishing the fair market value sought by the board;
   (iii) a description of the purpose of the transfer, and  a  reasonable
 statement  of the kind and amount of the benefit to the public resulting
 from the transfer, including  but  not  limited  to  the  kind,  number,
 location,  wages or salaries of jobs created or preserved as required by
 the transfer, the benefits, if any, to  the  communities  in  which  the
 asset is situated as are required by the transfer;
   (iv)  a  statement  of  the  value to be received compared to the fair
 market value;
   (v) the names of any private parties participating  in  the  transfer,
 and  if  different  than  the statement required by subparagraph (iv) of
 this paragraph, a statement of the value to the private party; and
   (vi) the names of other private parties who have  made  an  offer  for
 such  asset,  the value offered, and the purpose for which the asset was
 sought to be used.
   c. Before approving the disposal of any property for  less  than  fair
 market  value,  the board of an authority shall consider the information
 described in paragraph b of this subdivision and make a written determi-
 nation that there is no reasonable alternative to  the  proposed  below-
 market transfer that would achieve the same purpose of such transfer.
   §  6.  Section 51 of the executive law, as added by chapter 766 of the
 laws of 2005, is amended to read as follows:
   § 51. Jurisdiction. This article shall,  subject  to  the  limitations
 contained herein, confer upon the office of the state inspector general,
 jurisdiction over all covered agencies. For the purposes of this article
 "covered  agency"  shall  include all executive branch agencies, depart-
 ments, divisions, officers, boards and  commissions,  public  AND  LOCAL
 authorities,  AS  DEFINED  IN  SECTION TWO OF THE PUBLIC AUTHORITIES LAW
 (other than multi-state or multi-national authorities), and public bene-

 S. 7855                             8
 
 fit corporations, the heads of which are appointed by the  governor  and
 which  do  not  have their own inspector general by statute.  Wherever a
 covered agency is a board, commission,  a  public  authority  or  public
 benefit corporation, the head of the agency is the chairperson thereof.
   §  7. Subdivision 3 of section 86 of the public officers law, as added
 by chapter 933 of the laws of 1977, is amended to read as follows:
   3. "Agency" means any state or municipal  department,  board,  bureau,
 division,  commission,  committee, public OR LOCAL authority (AS DEFINED
 IN SECTION TWO OF THE PUBLIC AUTHORITIES LAW), public corporation, coun-
 cil, office or other governmental entity performing  a  governmental  or
 proprietary  function  for  the  state or any one or more municipalities
 thereof, except the judiciary or the state legislature.
   § 8. Subdivision 2 of section 102  of  the  public  officers  law,  as
 amended  by  chapter  704 of the laws of 1979 and such section as renum-
 bered by chapter 652 of the laws of 1983, is amended to read as follows:
   2. "Public body" means any entity, for which a quorum is  required  in
 order  to  conduct  public  business  and  which consists of two or more
 members, performing a governmental function for  the  state  or  for  an
 agency  or department thereof, or for a public corporation as defined in
 section sixty-six of the general construction law, OR A LOCAL  AUTHORITY
 AS DEFINED BY SECTION TWO OF THE PUBLIC AUTHORITIES LAW, or committee or
 subcommittee or other similar body of such public body.
   § 9. This act shall take effect on the one hundred twentieth day after
 it  shall have become a law. Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation of this act on its effective date are authorized to be  made  and
 completed on or before such effective date.