N.Y. NYS Financial Emergency Act for the city of NY 868/75 § 7: Functions of the board

* § 7. Functions of the board. 1. In carrying out the purposes of this

act, the board shall perform the following functions:

a. In accordance with the provisions of section eight of this act, the

board shall (i) consult with the city and the covered organizations in

the preparation of the financial plan, and certify to the city the

revenue estimates approved therein, (ii) prescribe the form of the

financial plan and the supporting information required in connection

therewith, and (iii) exercise the rights of approval, disapproval and

modification with respect to the financial plan, including but not

limited to the revenue estimates contained therein.

b. The board, to the extent it deems it necessary or appropriate in

order to accomplish the purposes of this act, shall establish and adopt

procedures with respect to the (i) proper maintenance of the board fund,

(ii) the deposit and investment of revenues in such fund and (iii)

disbursement of monies from such fund.

c. The board shall, from time to time and to the extent it deems

necessary or appropriate in order to accomplish the purposes of this

act, (i) review the operations, management, efficiency and productivity

of such city operations and of such covered organizations or portions

thereof as the board may determine, and make reports thereon; (ii) audit

compliance with the financial plan in such areas as the board may

determine; (iii) recommend to the city and the covered organizations

such measures relating to their operations, management, efficiency and

productivity as it deems appropriate to reduce costs and improve

services so as to advance the purposes of this act; and (iv) obtain

information of the financial condition and needs of the city and the

covered organizations. Nothing herein shall diminish the powers of the

comptroller otherwise provided by law and the board may request the

assistance of the comptroller in performing the above functions.

d. The board (i) shall receive from the city and review the reports to

be prepared by or on behalf of the city pursuant to section seven-a;

(ii) shall receive from the city and the covered organizations and from

the deputy comptroller, and shall review such financial statements and

projections, budgetary data and information, and management reports and

materials as the board deems necessary or desirable to accomplish the

purposes of this act; and (iii) shall inspect, copy and audit such books

and records of the city and the covered organizations as the board deems

necessary or desirable to accomplish the purposes of this act.

e. All contracts entered into by the city or any covered organization

must be consistent with the provisions of this act and must comply with

the requirements of the financial plan as approved by the board. With

respect to all contracts or other obligations to be entered into by the

city or any covered organization after October fifteenth, nineteen

hundred seventy-five, requiring the payment of funds or the incurring of

costs by the city or any covered organization:

(i) Within twenty days from the effective date of this act the mayor

shall present to the board proposed regulations respecting the

categories and types of contracts and other obligations required to be

reviewed by the board pursuant to this subdivision e. Within thirty days

from the effective date of this act, the board shall approve or modify

and approve such proposed regulations or promulgate its own in the event

that such proposed regulations are not submitted to it within the twenty

days as provided for herein. Such regulations may thereafter be modified

by the board from time to time on not less than thirty days notice to

the mayor and the mayor may from time to time propose modifications to

the board. Unless expressly disapproved or modified by the board within

thirty days from the date of submission by the mayor, any such proposed

regulations or modifications shall be deemed approved by the board;

(ii) Prior to entering into any contract or other obligations subject

to review of the board under its regulations, the city or any covered

organization shall submit a copy of such contract or other obligation to

the board accompanied by an analysis of the projected costs of such

contract or other obligation and a certification that performance

thereof will be in accordance with the financial plan, all in such form

and with such additional information as the board may prescribe. The

board shall promptly review the terms of such contract or other

obligation and the supporting information in order to determine

compliance with the financial plan;

(iii) During a control period the board shall, by order, disapprove

any contract or other obligation reviewed by it only upon a

determination that, in its judgment, the performance of such contract or

other obligation would be inconsistent with the financial plan and the

city or covered organization shall not enter into such contract or other

obligation;

(iv) During a control period if the board approves the terms of a

reviewed contract or other obligation, the city or covered organization

may enter into such contract or other obligation upon the terms

submitted to the board. Failure of the board to notify the city or

covered organization within thirty days (or such additional time not

exceeding thirty days as the board shall have notified the city or

covered organization, that it requires to complete its review and

analysis) after submission to it of a contract or other obligation that

such contract or other obligation has been disapproved shall be deemed

to constitute board approval thereof.

f. Upon submission thereof by the city, the board shall review the

terms of each proposed long-term and short-term borrowing by the city

and any covered organization to be affected during a control period but

after October fifteenth, nineteen hundred seventy-five, and no such

borrowing shall be made unless approved by the board. Each such proposed

borrowing by a covered organization shall be submitted to the city by

the covered organization before it may be considered by the board. Not

more than thirty days after any such submission by a covered

organization the city shall transmit any such proposed terms of

borrowing to the board together with the certification of the city as to

whether such proposed terms of borrowing are in accordance with the

financial plan and are consistent with the objectives and purposes of

this act. Any such submission to the city shall be accompanied by a

certification of the covered organization that the terms thereof are in

accordance with the financial plan and are consistent with the

objectives or purposes of this act. The transmittal by the city to the

board shall include a recommendation by the city for the approval or

disapproval of such proposed terms of borrowing pursuant to the terms of

this paragraph. In the event the city does not make such transmittal

within such thirty day period, such covered organization may submit such

proposed borrowing directly to the board. The board shall disapprove any

borrowing if it determines that such borrowing is inconsistent with the

financial plan or the objectives or purposes of this act. The board

shall consult and coordinate with the municipal assistance corporation

for the city of New York with respect to borrowings of the city and any

covered organization and shall receive reports from the muncipal

assistance corporation for the city of New York on its review of

borrowings by the city. No covered organizations shall be prohibited

from issuing bonds or notes to pay outstanding bonds or notes.

g. The board and the comptroller shall receive quarterly reports from

the city comptroller setting forth the debt service requirements on all

bonds and notes of the city and the covered organizations for the

following quarter, which reports shall be in such form and contain such

information as the board shall determine. Such reports shall be issued

no later than sixty days prior to the start of the quarter to which they

pertain and shall be updated immediately upon each issuance of bonds or

notes after the date of such report to reflect any change in debt

service requirements as a result of such issuance. The board also shall

receive from the city monthly and quarterly financial reports, which

reports shall be in such form and contain such information as the board

shall determine and shall be made available by the city to the public.

In order to avoid duplicative reports and reporting requirements, to the

extent that the city is required to submit monthly or quarterly

financial reports to the department of the treasury pursuant to any

agreement or arrangement made in connection with federal guarantees of

notes or bonds issued by the city or a state financing agency, copies of

such reports shall be submitted to the board in satisfaction of the

monthly and quarterly reporting requirements set forth above, together

with such additional information as the board may require. Each monthly

and quarterly report herein required to be submitted to the board must

indicate any variance between actual and budgeted revenues, expenses or

cash for the period covered by such report.

h. The board shall issue, to the appropriate officials of the city and

the covered organizations, such orders as it deems necessary to

accomplish the purposes of this act, including but not limited to timely

and satisfactory implementation of an approved financial plan. Any order

so issued shall be binding upon the official to whom it was issued and

failure to comply with such order shall subject the official to the

penalties described in section eleven of this act.

i. The board shall coordinate with the municipal assistance

corporation for the city of New York and the deputy comptroller with

respect to the performance of its review and monitoring of the revenues

and expenditures of the city and the covered organizations.

2. In the event of any default by the city on its outstanding bonds or

notes, and so long as such default has not been cured, the board may,

any provisions of this act notwithstanding, take any action that it is

authorized to take pursuant to title six-A of article two of the local

finance law, and may direct the city to take any action that the city is

authorized to take under such law.

* 3. (a) Notwithstanding any provision of the New York City Collective

Bargaining Law, codified as chapter fifty-four of the New York city

administrative code, or any general or special law to the contrary, any

report or recommendation of an impasse panel constituted pursuant to

such chapter which provides for an increase in wages or fringe benefits

of any employee of the city or covered organization, in addition to

considering any standard or factor required to be considered by

applicable law, including the standards enumerated in section

1173-7.0(c)(3)(b) of such chapter, shall also take into consideration

and accord substantial weight to the financial ability of the city and

or covered organization to pay the cost of such increase in wages or

fringe benefits.

(b) The board of collective bargaining constituted pursuant to such

chapter, when reviewing such report or recommendation before proceeding

to other issues, shall make a threshold determination as to whether such

report or recommendation for an increase in wages or fringe benefits is

within the city's and or covered organization's financial ability to

pay. If the threshold determination is in the negative, the matter shall

be remitted to the impasse panel for further consideration. If the

threshold determination is in the affirmative, the further review of the

report or recommendation with respect to other issues, if any, shall

proceed as provided by law. Unless the parties stipulate otherwise, the

threshold determination shall be made within thirty days after

submission of the report or recommendation to the board of collective

bargaining.

(c) Any determination pursuant to article eight of the labor law or

any agreement or stipulation entered into in lieu thereof which provides

for an increase in wages or fringe benefits of any employee of the city

or covered organization shall, in addition to considering any standard

or factor required to be considered by applicable law, also take into

consideration and accord substantial weight to the financial ability of

the city and or covered organization to pay the cost of such increase.

(d) Any report or recommendation of a fact finding or similar type

panel or any interest arbitration award which provides for an increase

in wages or fringe benefits of any employee of the city or covered

organization not subject to the provisions of the New York City

Collective Bargaining Law, codified as chapter fifty-four of the New

York city administrative code, shall, in addition to considering any

standard or factor required to be considered by applicable law, also

take into consideration and accord substantial weight to the financial

ability of the city and or covered organization to pay the cost of such

increase.

(e) Any party to a proceeding before the board of collective

bargaining as described in paragraph (b) or other body as described in

paragraphs (c) or (d) hereof may commence a special proceeding in the

appellate division, first department, supreme court, state of New York,

to review the threshold determination as to the city and or covered

organization's financial ability to pay. Such proceeding shall be

commenced not later than thirty days after the final determination has

been made by the board of collective bargaining in the case of paragraph

(b) or other body in the case of paragraphs (c) or (d). Such proceeding

shall have preference over all other causes in such appellate division,

other than causes relating to the election law.

(f) The court shall make a de novo review of the record solely for the

purpose of determining whether an award of an increase in wages or

fringe benefits was within the city's and or covered organization's

financial ability to pay. The court's findings as to such issue shall be

based upon a preponderance of all the evidence set forth in the record.

Unless the parties stipulate otherwise, arguments or submission shall be

had within fifteen days after commencement of the special proceeding and

the court shall render its decision within fifteen days thereafter. All

questions, other than the question relating to the threshold

determination, shall be reviewed by the appellate division in the same

proceeding in the manner provided by articles seventy-five or

seventy-eight of the civil practice law and rules as may be appropriate,

notwithstanding that the issue would otherwise have been cognizable in

the first instance before a special or trial term of the supreme court.

If an appeal shall otherwise lie from such determination of the

appellate division to the court of appeals, notice of such appeal shall

be filed within thirty days after the entry of the final order or

judgment of the appellate division if such appeal is of right or within

ten days after entry of an order granting leave to appeal and such

appeal shall have preference over all other appeals other than appeals

relating to the election law.

(g) At any stage of any proceeding under paragraphs (a), (b), (c), (d)

and (e) hereof or any appeal from an order or judgment therefrom, the

board may intervene as a party on the issue of the financial ability of

the city and or covered organization to pay the cost of an increase in

wages or fringe benefits.

(h) For the purposes of this subdivision, financial ability to pay

shall mean the financial ability of the city and or covered organization

to pay the cost of any increase in wages or fringe benefits without

requiring an increase in the level of city taxes existing at the time of

the commencement of a proceeding under paragraph (a), (c) or (d) hereof.

(i) The provisions of this subdivision shall terminate on June

thirtieth, nineteen hundred eighty-six.

* NB Expires June 30, 1986

4. During a control period, except upon approval by the board in

accordance with the provisions of paragraph e or f of subdivision one of

this section, as the board shall determine, neither the city nor a

covered organization shall enter any agreement or other arrangement,

whether or not it creates a debt of the city or a covered organization,

pursuant to which the revenues or credit of the city may be directly or

indirectly pledged, encumbered, committed or promised, contingently or

otherwise, for the payment of obligations of a public benefit

corporation. Nothing in this subdivision shall limit the right of the

city to comply with the provisions of any existing agreement or other

arrangement in respect of the obligations of a public benefit

corporation.

5. The board may employ such consultants as it may deem necessary to

assist it in performing its functions required under this act.

6. The board shall have the authority to make and execute agreements

and all other instruments which the board deems necessary for the

exercise of its powers and functions including, in connection with any

agreement by the federal government or any agency or instrumentality

thereof to guarantee the payment of the principal of or interest on

bonds or notes issued by the city or by a state financing agency, to

enter into one or more agreements containing terms and conditions

required by the secretary of the treasury pursuant to the New York City

Loan Guarantee Act of l978, Public Law 95-339 with the federal

government or any agency or instrumentality thereof with respect to such

guarantee or any matters related thereto and to comply with such terms

and conditions.

7. The board may appoint qualified individuals to participate as

members of such audit, productivity or similar committees or councils as

the city may from time to time establish in consultation with the board.

Such individuals, however, shall not be deemed to be officers, employees

or agents of the board. The board shall review and report on, not less

than annually, the development and implementation of methods for

enhancing the productivity of the city's labor force proposed by any

such committee or council.

* Terminates July 1, 2035 or ... see § 13