LOCAL GOVERNMENT AND SCHOOL DISTRICT

LOCAL GOVERNMENT AND SCHOOL DISTRICT

FISCAL ACCOUNTABILITY ACT

House Bills 4214 - 4218

House Bill 4246

Sponsor: Rep. Al Pscholka

Committee: Local, Intergovernmental, and Regional Affairs

Complete to 2-15-11

A SUMMARY OF HOUSE BILLS 4214 - 4218 AS INTRODUCED 2-9-11 & HOUSE BILL 4246 INTRODUCED ON 2-10-11

The bills would create a new "Local Government and School District Accountability Act" and amend five additional acts, to govern both the selection and the work of emergency financial managers who are appointed to assist struggling municipal governments and public school districts, in order to safeguard the units' continued financial viability and avoid insolvency.

House Bill 4214 would repeal Public Act 72 of 1990--the existing Local Government Fiscal Responsibility Act. The new act would have similar provisions to PA 72, enabling a state review and intervention, but it would increase the power and authority of the appointed emergency financial manager. Among its provisions that differ from the existing law, the new act would:

· List 18 explicit events that would trigger a financial review by the state (four of these are new, seven are in PA 72 but would be significantly changed, and four are in PA 72 but would be slightly modified.

· Include the director of the Department of Technology, Management, and Budget on the four-member review team (replacing the auditor general), and allow the governor to appoint more members to the team.

· Make explicit the differences between the municipal government and the school district review and intervention processes.

· Make explicit the parameters of the review team's evaluation (including 12 review criteria, six of which are new, and one that is in PA 72 but would be significantly changed).

· Allow the review team's evaluation report to be compiled by a firm (rather than an individual).

· Explicitly define the terms "financial stress" and "financial emergency."

· Allow for appointment of emergency financial managers by the state treasurer or state school superintendent after a financial emergency is declared by the governor (currently the emergency manager is appointed by a local emergency financial assistance loan board).

· Allow the state treasurer and state school superintendent to declare that a local government is in receivership, as they appoint an emergency financial manager. (Note: the bill does not define "receivership"; according to the CRC report, under federal law "receivership" is a form of corporate bankruptcy in which the court appoints a receiver to run the company….under municipal bankruptcy, no receiver is appointed. Instead the local government develops a plan for adjusting its debts and the court approves or disapproves that plan.")

· Specifies that an emergency manager would be chosen on the basis of competence; need not be a resident of the local government; may be an individual or firm; and would serve at the pleasure of the state treasurer, with the concurrence of the state school superintendent if the local government is a school district (currently the emergency manager cannot be a firm).

· Explicitly identify an emergency financial manager's extensive power and authority by listing 32 actions a manager may take, 16 of which are new, two of which are in PA 72 but would be significantly modified, and seven of which are in PA 72 but would be slightly modified.

· Grant an appointed emergency financial manager the authority to abrogate existing labor contracts (currently the emergency financial manager may renegotiate contracts or enter into binding arbitration).

· Remove local elected officials from office in financially distressed governments in receivership, and prohibit them from seeking office for 10 years (currently the emergency financial manager works with locally elected officials to solve the financial crisis).

· Provide an explicit exit strategy to enable formerly struggling local governments to emerge from financial emergency status during which time local officials are prohibited from revising the emergency manager's two-year budget, labor contracts, or ordinances.

· Suspend collective bargaining for up to five years in local governments placed in receivership.

· A related bill (House Bill 4246) would allow collective bargaining agreements to be rejected, modified, or terminated under the Local Government and School District Fiscal Accountability Act.

The main bill of the six-bill package, House Bill 4214, is tie-barred to House Bills 4215, 4216, 4217, 4218, and House Bill 4246, and each of those bills is, in turn, tie-barred to House Bill 4214. Consequently, none of the bills could go into effect unless the bill or bills to which they are tie-barred were also enacted into law.

A detailed summary of the six bills and a description of their fiscal impact follow the Background Information, below.

BACKGROUND INFORMATION:

In April 2010, The Citizens Research Council of Michigan published Report 362 entitled "Financial Emergencies in Michigan Local Governments." That 28-page report is available at http://www.crc.org. The CRC report notes that the State of Michigan has adopted a number of statutes designed to prevent local governments from falling into a financial crisis, including the Uniform Budgeting and Accounting Act, the Emergency Municipal Loan Act, the Fiscal Stabilization Act, the Revised Municipal Finance Act, and the Home Rule Cities Act. Further, the state constitution provides for the removal or suspension of local officials.

In addition, the Michigan Department of Treasury has developed fiscal indicator scores for all local general-purpose governments in the state. Based on a review if its annual audit, each community is scored: 0-4 points represents a fiscally neutral position requiring no state action; 5-7 points designates a "fiscal watch" condition; and 8-10 points denotes fiscal stress. Local governments that score 8-10 are notified, placed on a watch list for the current and following years, and they receive consideration for state review. Each community's score is published on the Michigan Department of Treasury website at www.michigan.gov/treasury.

If, despite these preventive measures, local governments, including school districts, fall into a financial crisis, they are then governed by the provisions of the Local Government Fiscal Responsibility Act, commonly known as Public Act 72 of 1990 (including its four amendments: Public Act 265 of 1992, Public Act 408 of 2002, Public Act 282 of 2003, and Public Act 181 of 2009). The PA 72 process is overseen by the Michigan Department of Treasury--Bureau of Local Government Services, and technical assistance is provided to communities by the Treasury Rapid Response Team (TRRT) for Fiscally Distressed Local Units.

The CRC report notes that the current statutory PA 72 process includes three strategies the state can employ if a fiscal emergency is declared in a local government: (1) local officials can develop and implement a plan to resolve the crisis under a consent agreement negotiated with a state-appointed review team; (2) a state-appointed emergency financial manager can develop and implement a plan to resolve the financial crisis; or (3) if the emergency financial manager recommends and the state approves such action, a local government can file under Chapter 9 of the federal bankruptcy code.

Seven Michigan communities have had emergency financial managers appointed under Public Act 72 of 1990: Hamtramck (in 2000); Highland Park (in 2001); Flint (in 2002); Village of Three Oaks (in 2008); Ecorse (in 2009); Pontiac (in 2009); and Benton Harbor (in 2010). Additionally, a financial manager was appointed for the Detroit Public School District in 2009.

Generally speaking, the current PA 72 process (1) starts with a preliminary review by the state treasurer to determine if a financial problem exists, and (2) a report of that review must be made to the governor within 30 days. The governor then (3) appoints a review team (composed of four people including the treasurer, the auditor general, and two members appointed, one each, by the Senate Majority Leader and House Speaker). The review team (4) reports its findings to the governor within 60 days. If there is a financial emergency, (5) the governor assigns the responsibility for managing the local government to the local emergency financial assistance loan board, which (6) appoints an emergency financial manager. The emergency financial manager, in consultation with the local government, (7) develops and implements a financial plan that balances expenditures with revenue, and pays debt service. To do so, an emergency financial manager (8) may assume the power and duties of the chief administrative officer and legislative body, and may renegotiate contracts, but may not abrogate contracts. If successful, (9) the emergency financial manager notifies the local emergency financial assistance loan board, and the governor revokes the declaration of a financial emergency. If unsuccessful, (10) the emergency financial manager may request approval from the Local Emergency Financial Assistance Board to authorize the local government to proceed under Chapter 9 of Title 11 of the United States Code, 11 U.S.C. 101 to 1330.

SUMMARY OF BILLS:

House Bill 4214

The bill would create a new act to be entitled the "Local Government and School District Fiscal Accountability Act," and repeal the existing Local Government Fiscal Responsibility Act, Public Act 72 of 1990. The bill specifies that any emergency financial manager already appointed and serving when this proposed act goes into effect would continue to fulfill his or her powers and duties under the new act.

Statement of Legislative Intent. The bill specifies, among other things, that the legislature determines that the health, safety, and welfare of the citizens of Michigan would be materially and adversely affected by the insolvency of units of local government, including certain school districts, and that the survival and financial viability of these governments is vitally necessary. The legislature further determines that it is vitally necessary to protect the credit of the state and its political subdivisions, and to take action to assist a unit of local government in a condition of financial stress or financial emergency. Consequently, the legislature determines that the authority and powers conferred by this legislation would constitute a necessary program and serve a valid public purpose.

Definitions. Under the bill, the term "municipal government" is defined to mean a city, village, township, charter township, county, an authority established by law, or a public utility owned by a city, village, township or county. The term "school district" is defined to mean a school district, an intermediate school district, or a public school academy (customarily called a charter school.) The term "state financial authority" is defined to mean (1) for a municipal government, the state treasurer, (2) for a school district, the superintendent of public instruction.

Preliminary Review to Determine Financial Problem. Under the bill the state treasurer (for municipal governments) or the state school superintendent (for school districts) could conduct a preliminary review to determine the existence of a local government financial problem, if one or more of the following 18 events occurred:

· A preliminary review was requested, in writing, by the governing body or the chief administrative officer that identified the existing or anticipated financial conditions or events that made the request necessary (slightly modified adding events).

· A preliminary review was requested, in writing, by a creditor having an undisputed claim that remained unpaid six months after its due date that exceeded the greater of $10,000 or one percent of the general fund (provided the creditor notified the local government, in writing, at least 30 days before requesting the preliminary review; slightly modified).

· A petition was received containing specific allegations of financial distress, signed by a number of registered electors equal to at least five percent of the total votes cast for all candidates for governor (significantly modified from PA 72 where the petitions must contain 10 percent of the registered electors).

· Written notification was received that a local government had not deposited its minimum obligation payment to the local pension fund in a timely manner, as required by law (significantly modified from PA 72 which requires that 10 percent of pension beneficiaries notify the treasurer in writing).

· Written notification was received that the local government had failed for a period of at least seven days to pay wages and salaries or other compensation owed to employees, or benefits owed to retirees (significantly modified from PA 72 by adding "other compensation").

· Written notification was received from a trustee, paying agent, bondholder, or auditor engaged by the local government of a default in a bond or note payment, or a violation of one or more bond or note covenants (significantly modified from PA 72 by adding "auditor engaged by the local government" and "notes").

· A resolution was received from either the Senate or the House of Representatives requesting a preliminary review.

· The local government had violated a requirement of the Revenue Bond Act, the Revised Municipal Finance Act, or any other law governing the issuance of bonds or notes.

· A municipal government had violated the conditions of an order issued by the Local Emergency Financial Assistance Loan Board under the Emergency Municipal Loan Act (slightly modified by changing "local government" to "municipal government").

· A local government had violated a requirement of Sections 17 to 20 of the Uniform Budgeting and Accounting Act (significantly modified to remove the requirement that the state treasurer forward a report of this violation to the attorney general).

· A local government failed to file an annual financial report or audit in a timely manner that conformed with the minimum procedures and standards of the State Financial Authority as required under the Uniform Budgeting and Accounting Act, or if a school district, had failed to provide an annual financial report or audit that conformed with the minimum procedures and standards of the state school superintendent, as required under the Revised School Code and the State School Aid Act (significantly modified to include school districts).

· A municipal government was delinquent in the distribution of tax revenues that it collected for another taxing jurisdiction, and that taxing jurisdiction requested a preliminary review.

· A local government was in breach of its obligations under a deficit elimination plan (new).

· A court had ordered an additional tax levy without the prior approval of the governing body of the local government.

· A municipal government had ended a fiscal year in a deficit condition as defined in Section 21 of the Glenn Steil State Revenue Sharing Act, or had failed to comply with the requirements of that section for filing or instituting a financial plan to correct the deficit condition (significantly modified to include the requirements for filing a financial plan).

· A school district ended its most recently completed fiscal year with a deficit in one or more of its funds, and the school district had not submitted a deficit elimination plan to the state financial authority within three months after the district's deadline for submission of its annual financial statement (new).

· A local government had been assigned a long-term debt rating within or below the BBB category or its equivalent by one or more nationally recognized credit rating agencies (new).

· The existence of other facts or circumstances indicative of financial stress, as determined by the state treasurer (for a municipal government) or by the state school superintendent (for a school district) (new).

Under the bill, if the state treasurer or state school superintendent determined that a preliminary review was appropriate, before beginning the preliminary review they would be required to give the local government specific written notification. A preliminary review would have to be completed within 30 days, and elected and appointed officials would be required to promptly and fully provide the assistance and information requested.

Review Teams if Probable Financial Stress. If a finding of probable financial stress were made for a municipal government, the governor would appoint a review team consisting of the state treasurer (or a designee), the director of the Department of Technology, Management and Budget (or a designee), a nominee of the Senate Majority Leader, and a nominee of the Speaker of the House of Representatives. The governor could also appoint other state officials or other people with relevant professional experience to serve on a review team to undertake a municipal financial management review.

If a finding of probable financial stress were made for a school district, then the governor would appoint a review team for that school district consisting of the state treasurer (or a designee), the state school superintendent (or a designee), the director of the Department of Technology, Management, and Budget (or a designee), a nominee of the Senate Majority Leader, and a nominee of the Speaker of the House of Representatives. The governor also could appoint other state officials or other people with relevant professional experience to serve of a review team to undertake a school district financial management review.

Staff Assistance. The bill specifies that staff from the Department of Treasury would provide support to each review team.

Continuity. Any review team already appointed under the existing laws and serving on the effective date of this proposed new law would continue under to fulfill their powers and duties under the new act. Further, all proceedings and actions taken by the governor, the state treasurer, or a review team under the former Public Act 101 of 1988 or Public Act 72 of 1990 would be ratified and enforceable, as if they were taken under this act, and a consent agreement entered into under former Public Act 101 of 1988 or Public Act 72 of 1990 would be ratified, binding, and enforceable under this act.

Powers of Review Team. The review team would have full power to perform, among other things, all of the following functions:

· Examine the books and records of the local government.

· Utilize the services of other state agencies and employees.

· Negotiate and sign a consent agreement providing for remedial measures needed to address the financial problem with the chief administrative officer of the local government. The consent agreement could provide for periodic financial status reports to the state financial authority. In order for the consent agreement to go into effect, it would have to be approved, by resolution, by the governing body of the local government and be approved and executed by the state financial authority. A consent agreement could provide that in the event of a material uncured breach of the consent agreement, the state treasurer with the concurrence of the state school superintendent (if the local government were a school district), would be authorized to place the local government in receivership as provided under this act.

The bill requires the review team to meet with the local government as part of its review, and they must receive, discuss, and consider information provided by the local government.

Factors Considered in Review Team's Report. The review team would be required to report its findings to the governor, with a copy to the state treasurer (for municipal governments) or the state school superintendent (for school districts) within 60 days following its appointment. (The governor could grant one 30-day extension of the time limit.) A copy of the report would be forwarded by the state treasurer to the chief administrative officer and the governing body of the local government, the Speaker of the House of Representatives, the Senate Majority Leader, and the state school superintendent if the local government is a school district. The report would have to indicate the likely occurrence of any of the following:

· A default in the payment of principal or interest upon bonded obligations, notes, or other municipal securities for which no funds or insufficient funds were on hand, and if required, segregated in a special trust fund.

· Failure for a period of 30 days or more beyond the due date to transfer one or more of the following to the appropriate agency: (1) taxes withheld on the income of employees; (2) for a municipal government, taxes collected by the municipal government as agent for another governmental unit, school district, or other entity or taxing authority; (3) any contribution required by a pension, retirement, or benefit plan.

· Failure for a period of seven days or more to pay the wages and salaries or other compensation owed to employees or benefits owed to retirees (modified from PA 72 which says a failure for a period of 30 days).

· The total amount of accounts payable for the current fiscal years, as determined by the state financial authority's uniform chart of accounts, is in excess of 10 percent of the total expenditures of the local government in that fiscal year.

· Failure to eliminate an existing deficit in any fund of the local government within the two-year period preceding the end of the local government's fiscal year during which the review team report was received.

· Projection of a deficit in the general fund of the local government for the current fiscal years in excess of five percent of the budgeted revenues for the general fund.

· Failure to comply in all material respects with the terms of an approved deficit elimination plan or an agreement entered into pursuant to a deficit elimination plan (new).

· Existence of material loans to the general fund from other local government funds (new).

· Existence of material recurring unbudgeted subsidies from the general fund to other major funds as defined under government accounting standards board principles (new).

· Existence of a structural operating deficit (new).

· Use of restricted revenues for purposes not authorized by law (new).

· Any other facts and circumstances indicative of local government financial stress or financial emergency (new).

Report Conclusions. The review team would have to include one of the following conclusions about the local government in its report:

· No financial stress, or a condition of mild financial stress. (This conclusion would be rendered if the report concluded that none of the factors noted above--noted in Section 13(3) of the bill--exist or are likely to occur in the current or next succeeding fiscal year or, if they occur, they do not threaten the local government's capability to provide necessary governmental services essential to public health, safety, and welfare.)

· A condition of severe financial stress, with an adopted consent agreement containing a plan to resolve the problem.

· A condition of severe financial stress, without an adopted consent agreement.

· An existing financial emergency with no satisfactory plan to resolve the emergency.

Individual or Firm to Prepare Report. The bill specifies that the review team could appoint an individual or a firm to carry out the review and submit a report to the review team for approval. The Department of Treasury could (but would not be required to) enter into a contract with the individual or firm respecting the terms and conditions of the appointment.

Condition of Severe Financial Stress - defined. The bill specifies that a local government would be considered to be in severe financial stress if either of the following occurred: (1) the report concluded that one or more of the factors (noted above) existed or were likely to occur within the current or next succeeding fiscal years and, if left unaddressed, could threaten the local government's future capability to provide necessary governmental services essential to the public health, safety, and welfare; or (2) the chief administrative officer of the local government recommended that the local government be considered in severe financial distress.

Condition of Financial Emergency - defined. A local government would be considered to be in a condition of financial emergency if any of the following occurred:

o The report concluded that two or more of the factors (noted above) existed or were likely to occur within the current fiscal year and threaten the local government's current and future capability to provide necessary governmental services essential to the public health, safety, and welfare.

o The local government failed to provide timely and accurate information enabling the review team to complete its report.

o The local government failed to comply in all material respects with a continuing operations plan or recovery plan, or with the terms of an approved deficit elimination plan or an agreement entered into under the deficit elimination plan.

o The local government was in material breach of a consent agreement.

o The local government was in a condition of severe financial stress, and a consent agreement had not been adopted.

o The chief administrative officer of the local government, based on the existence or likely occurrence of one or more of the factors (noted above), recommended that a financial emergency be declared, and the state financial authority concurred with that recommendation.

Consent Agreement. If the state financial authority--that is, the state treasurer for municipal governments or the state school superintendent for school districts--requires that a consent agreement include a continuing operations plan, then it must be filed and then approved or rejected within 14 days. The local government may refine the plan within 30 days if it is rejected. Under the bill, the continuing operations plan would be in a form prescribed by the state, and would have to include, at a minimum, all of the following:

o A detailed projected budget of revenues and expenditures over not less than three fiscal years which demonstrates that the expenditures will not exceed revenues, and that any existing deficits will be eliminated.

o A cash flow projection for the budget period.

o An operating plan for the budget period that ensures continued viability.

o A plan showing reasonable and necessary maintenance and capital expenditures in order to ensure the local government's continued viability.

o An evaluation of the costs associated with pension and health care for which the local government is responsible and a plan for how those costs will be addressed within the budget period.

o A provision for submitting quarterly compliance reports to the state financial authority demonstrating compliance with the continuing operations plan.

The bill also specifies that a local government must amend its budget and general appropriations ordinance to give full effect to the continuing operations plan.

Recovery Plan. If the state financial authority required that a consent agreement include a recovery plan, then either the state treasurer or the state superintendent would develop one in consultation with the review team. If a recovery plan were adopted for the local government, that local government would be required to file annual updates to its recovery plan with the state. The recovery plan could include the appointment of a local auditor or local inspector, or both, and its provisions would be approved by the state treasurer, including the elements listed above, as well as procedures for cash control and cash management, including, but not limited to, procedures for timely collection, securing, depositing, balancing, and expending of cash, and may include the designation of appropriate fiduciaries.

If a recovery plan were adopted, then it would supersede the budget and general appropriations ordinance adopted by the local government under the Uniform Budgeting and Accounting Act, and the budget and general appropriation ordinance would be considered amended, in order to give full effect to the recovery plan.

Under the bill, the consent agreement could grant some authority to some or all local officials at the discretion of the state treasurer or state school superintendent. Further, the consent agreement could provide for the required retention of a turnaround consultant.

Governor's Determination; appeal. Within 10 days after receiving the report of the review team, the governor would make one of the following determinations: the local government is not in a condition of serve financial stress; the local government is in a condition of severe financial stress, but a consent agreement containing a plan to resolve the stress has been adopted; or a local government financial emergency exists, and no satisfactory plan exists to resolve the emergency.

If a financial emergency exists, then the government must provide the governing body and chief administrative officer of the local government with a written notification of the determination, findings of fact, a concise and explicit statement of the underlying facts supporting the factual findings, as well as notice that the chief administrative officer of the governing body has seven days to request a hearing conducted by the state treasurer or the state school superintendent (or a designee). Following the hearing (if there is one) the existence of a financial emergency would be either revoked or confirmed, in writing, by the governor. A local government could then appeal this determination to the Ingham County Circuit Court, if two-thirds of the members of its governing board adopted a resolution to do so.

The Ingham County Circuit Court could not set aside a determination of financial emergency by the governor unless the judge found that the determination was not supported by competent, material, and substantial evidence on the whole record; or, that the determination was arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

Receivership. When a finding of a financial emergency is confirmed, the state treasurer (with the concurrence of the state school superintendent if the local government is a school district) would be required to declare the local government in receivership, and appoint an emergency financial manager.

The emergency manager would have broad powers in receivership to rectify the financial emergency and to preserve the local government's capacity to provide necessary governmental services essential to the public health, safety, and welfare.

A local government would be removed from receivership when financial conditions were corrected in a sustainable fashion.

Emergency Manager Determines Powers of Elected Officials. Upon the declaration of receivership and during the period in which it is in effect, the governing body and the chief administrative officer of the local government could not exercise any of the powers of those offices except as may be specifically authorized in writing by the emergency manager. Further, the powers granted to the community's elected and appointed officials would be subject to any conditions required by the emergency manager.

Emergency Financial Managers. The bill specifies that an emergency manager would be chosen on the basis of competence; need not be a resident of the local government; may be an individual or a firm; and serve at the pleasure of the state treasurer (with the concurrence of the state school superintendent if the local government were a school district).

The emergency manager would be required to make quarterly reports to the state treasurer (with a copy to the state school superintendent where appropriate), and would continue in the position until removed or replaced by the state treasurer (and state school superintendent, if appropriate).

The bill specifies that an emergency financial manager appointed under PA 101 of 1988 or PA 72 of 1990 and serving on the effective date of this legislation if it were enacted into law, would continue under this new act to fulfill his or her powers and duties.

Under the bill, the emergency manager would be required to issue to the appropriate officials of the local government the orders the manager considered necessary to accomplish the purposes of this legislation, in particular orders for a timely implementation of a financial and operating plan, including an academic plan for a school district. If an order is not reasonably carried out and that lack of cooperation is disrupting the emergency manager's ability to manage the local government, then the emergency manager may prohibit the official from access to the local government's office facilities, electronic mail, and internal information systems.

Emergency Manager's Financial and Operating Plan. The emergency manager would develop a written financial and operating plan, and the bill specifies some of that plan's components, including but not limited to payment in full of the scheduled debt service requirements; the modification, rejection, termination, and renegotiation of contracts; the timely deposit of required payments to any pension funds (if applicable); an academic plan (for school districts); and any other actions considered necessary in the emergency manager's discretion to achieve the objectives of the plan, alleviate the financial emergency, and remove the local government from receivership.

The emergency manager would be required to submit the financial and operating plan to the state treasurer (and if applicable, the state school superintendent) within 45 days, as well as to the chief administrative officer and the governing body of the local government. The plan would be regularly re-examined and modified to conform to revised revenue estimates. Within 30 days of submitting the plan, the emergency manager would be required to conduct a public informational meeting on the plan. The bill specifies that this subsection would not mean that the emergency manager would have to receive public approval before he or she implemented the plan.

Emergency Manager's Authority. During the receivership, the authority of the chief administrative officer and the elected governing body to exercise power for and on behalf of the local government would be suspended. Instead, in Section 19, the bill specifies 32 actions that an emergency manager may take while the local government is in receivership, notwithstanding any provisions of law or charter to the contrary. Sixteen (16) of these actions are new (noted below), two of them are in PA 72 but significantly modified, and seven are in PA 72 but slightly modified. These actions can be found on pages 19-33 of the bill, and they include (but are not limited to) the following:

o Amend, revise, approve, or disapprove the budget of the local government and limit the total amount appropriated or expended.

o Make, approve, or disapprove any appropriation, contract, expenditure, or loan, the creation of any new position, or the filling of any vacancy in a permanent position by any appointing authority.

o Establish staffing levels, notwithstanding any minimum staffing levels established by charter or contract.

o Reject, modify, or terminate one or more terms and conditions of an existing contract, including after meeting to confer with the appropriate bargaining representative, and concluding in the emergency manager's sole discretion and judgment that a prompt and satisfactory resolution is unlikely to be obtained, the authority to reject, modify, or terminate one or more terms and conditions of an existing collective bargaining agreement (new).

o Have the municipal government participate in the Municipal Employees Retirement System (new).

o Consolidate or eliminate departments of the local government or transfer functions from one department to another and appoint, supervise, and at his or her discretion, remove administrators, including heads of departments other than elected officials (new).

o Employ at the expense of the local government and with approval of the state treasurer or state school superintendent, auditors and other technical personnel.

o Retain one or more people or firms, selected from a list approved by the state treasurer or state school superintendent, to perform the duties of a local inspector or a local auditor. These inspectors and auditors would conduct forensic audits to detect waste, fraud, and abuse, and would submit reports to the emergency manager, the state treasurer, and the state school superintendent (new).

o Sell, lease, convey, or otherwise use local government assets to meet past or current obligations.

o Apply for a loan from the state subject to the conditions of the Emergency Municipal Loan Act, in a sufficient amount to pay the expenses of the emergency manager and for other lawful purposes.

o Order millage elections (new).

o With the consent of the state treasurer, authorize the issuance of financial recovery bonds or notes by the local government in amounts greater than the limitation established by state law or charter (the parameters of this bond issue are described in considerable detail in the bill representing a significant modification from PA 72).

o Enter into agreements with creditors to restructure debt (new).

o Set and approve all actuarial assumptions for pension obligations (new).

o Enter into agreements with other local governments or with private entities for the provision of services; transfer property to other units of government (new); consolidate services (new); consolidate with other governmental entities, or disincorporate or dissolve the municipal government (new).

o Exercise solely all authority concerning the adoption, amendment, and enforcement of ordinances and resolutions.

o Replace the serving trustees and assume and exercise the authority and responsibilities of a local pension board as sole trustee of the pension fund (new).

o Supersede the power or authority of any officer, employee, department, board, commission, or other entity of the local government, whether elected or appointed.

o Remove, replace, appoint, or confirm the appointments to any board, commission, authority, or other entity which is a component unit of the local government (new).

Salaries of Officials Eliminated During Receivership. The bill specifies that immediately upon the local government being placed in receivership, the salary or other compensation, including the accrual of post-employment benefits, and other benefits of the chief administrative officer and members of the governing body of the local government would be eliminated. This action is allowed under Public Act 72, and the bill specifies that if an emergency manager had taken this action before this legislation goes into effect, then that action would be valid. Under the bill, the emergency manager could restore, in whole or in part, any compensation or benefits during the receivership, if that action was consistent with the financial operating plan.

Authority of a School District Emergency Manager. A new Section 20 has been included that applies to school district emergency managers. In addition to the actions noted above, an emergency manager for a school district could take one or more of the following additional steps for a school district in receivership:

o Negotiate, re-negotiate, approve, and enter into contracts on behalf of the school district.

o Receive and disburse all federal, state, and local funds earmarked for the district.

o Seek approval from the state superintendent for a reduced class schedule.

o Sell the assets of the school district to meet past or current obligations, provided the use of assets did not impair the education of the students in the district.

o Approve or disapprove the issuance of obligations of the school district.

o Recommend to the governor, the legislature, and the state school superintendent that the district be reorganized with one or more contiguous school districts.

o Exercise solely, for and on behalf of the school district, all other authority and responsibilities affecting the school district that are prescribed by law to the school board and superintendent.

Criminal Conduct. The bill requires the emergency manager to make a determination as to whether criminal conduct contributed to the financial situation that resulted in the local government's receivership status. If so, the emergency manager would refer the matter to the attorney general and the local prosecuting attorney for investigation.

Posted Reports Every Six Months. Like Public Act 72, the bill would require an emergency manager to file with the governor, the Senate Majority Leader, and the Speaker of the House of Representatives, and to post on the internet on the website of the local government, a report every six months that contained all of the following:

o A description of each expenditure made, approved, or disapproved during the reporting period that had a cumulative value of $10,000 or more, and the source of funds.

o A list of each contract that the emergency manager awarded or approved with a cumulative value of $10,000 or more, the purpose of the contract, and the identity of the contractor.

o A description of each loan sought, approved, or disapproved during the reporting period that had a cumulative value of $10,000 or more, and the proposed use of the funds.

o A description of any new position created or any vacancy in a permanent position filled by the appointing authority.

o A description of any position that had been eliminated or from which an employee had been laid off.

Chapter 11 Reorganization. If, in his or her judgment, no reasonable alternative existed, then the emergency manager could recommend to the governor and the state treasurer that the local government be authorized to proceed under Title 11 of the United States Code. If approved by the governor and state treasurer, the emergency manager would be authorized to proceed under Title 11, which would empower the local government to become a debtor, and the emergency manager to act exclusively on the local government's behalf.

Liability Protection. At Section 25, the bill describes the protection from liability that would be in place for the state, state officers, state employees, an emergency manager, and any employee, agent, appointee, or contractor of an emergency manager. None would be liable for any obligation of a local government or for any civil claim, demand, or lawsuit resulting from actions or responsibilities taken in accord with the terms of this legislation, and the state attorney general would defend them against such claims.

Any expenses incurred by the attorney general with respect to any aspect of a receivership noted above would be an expense borne by the local government, and would be reimbursed to the attorney general within 30 days.

An emergency manager could buy and maintain, at the expense of the local government, worker's compensation, general liability, professional liability, and motor vehicle insurance for the emergency manager and any employee, agent, appointee, or contractor. If after the date that the service of an emergency manager was concluded, the emergency manager or any employee, agent, appointee, or contractor was subject to a claim, demand, or lawsuit, and that claim was not covered by an insurance policy, then the civil and criminal litigation costs and fees to defend against such claims would be paid out of the funds of the local government that was the subject of the receivership, subject to the approval of the state treasurer. If unpaid, the expenses would be recovered under the State Revenue Sharing Act.

Removing Local Officials from Office. The bill requires all elected and appointed officials to promptly and fully provide assistance and information requested by the state treasurer, state school superintendent, a review team, or the emergency manager. If the review team or the emergency manager believed that an official or employee was not answering questions accurately, then they could issue subpoenas and administer oaths. If they officials or employees refused, then action could be brought in the circuit court in which the local government was located or in Ingham County Circuit Court, as determined by the emergency manager, to compel testimony and furnish records and documents.

Failure of a local government official to follow this legislation would be considered a gross neglect of duty, and could result in the governor removing the elected official from office.

10-Year Ban on Elected Office. An elected chief administrative officer or member of the governing body of a local government serving and in office at the time the local government was placed in receivership would not be eligible to be a candidate for election to public office for that local government for a period of 10-years from the date the local government was placed in receivership.

Collective Bargaining Suspended up to Five Years. The bill specifies that a local government placed in receivership would not be subject to Section 15 of Public Act 336 of 1947 (MCL 423.215) for a period of five years from the date the local government was placed in receivership, or until the receivership was terminated, whichever occurred first. Section 15 is the section of the Public Employment Relations Act which (1) describes the collective bargaining duties of public employer and public employee representatives, (2) sets out the prohibited subjects during collective bargaining between public school employer and employee bargaining representatives, and (3) describes the role of the chief executive officer of a state school reform/redesign school district in the collective bargaining process.

The bill specifies that for a local government for which an emergency manager is already serving as of the effective date of this legislation, this provision would not become applicable until 60 days after the effective date of the legislation.

Termination of Receivership; prohibit changes to manager's budget, contracts, and ordinances. The bill requires that before the termination of receivership and the completion of the emergency manager's term, the manager approve collective bargaining agreements and adopt and implement a two-year budget. After the completion of the emergency manager's term and the end of the receivership, the governing body of the local government would be prohibited from amending the collective bargaining agreement or the two-year budget, without the approval of the state treasurer or the state school superintendent, and also would be prohibited from revising any ordinance implemented by the emergency manager during his or her term prior to one-year after the termination of the receivership.

Taxes. The bill specifies that this legislation does not give the emergency manager or the state treasurer or state school superintendent the power to impose taxes without the approval at an election of a majority of the qualified electors voting on the question.

Rules. The state treasurer and state school superintendent would have the authority to issue bulletins and adopt rules as necessary to carry out the legislation, and all rules would be adopted in accord with the Administrative Procedures Act.

Severability. Under the bill, the provisions of this legislation are severable. If any portion of this legislation once enacted were found to be invalid by a court, that invalidity would not affect the remaining portions or applications of the act.

House Bill 4215

The bill would amend the Revised School Code (MCL 380.1280c) to eliminate that act's reference to the Local Government Fiscal Responsibility Act, which would be repealed if House Bill 4214 is enacted into law. The bill would replace that reference with a reference to the new and proposed "Local Government and School District Fiscal Accountability Act."

Currently under the law, beginning in September 2010, the superintendent of public instruction publishes a list identifying the public schools in the state that are among the lowest achieving five percent of all schools. The state superintendent then issues an order placing those schools under the supervision of a state school reform/redesign officer. Within 90 days of that date, the school board, or school board of directors if a charter school, submits a redesign plan to the reform/redesign officer. House Bill 4215 would retain these provisions, but extend them to allow an emergency manager to submit the redesign plan, if an emergency manger is in place under the local government and school district accountability act.

After the redesign plan is submitted, the state reform/redesign officer has 30 days to approve, disapprove or make changes to it. If it is changed, the school board or board of directors has 30 days to incorporate those changes into the plan and resubmit it. House Bill 4215 would retain these provisions, but extend them to allow an emergency financial manager to incorporate the changes (rather than the board), if an emergency manager were in place.

If a resubmitted design plan is disapproved, a school board or board of directors may appeal that decision to the state superintendent of public instruction. House Bill 4215 would retain this provision, and also allow an emergency financial manager, if one were in place, to appeal disapproval of a redesign plan to the state school superintendent.

Once a redesign plan is approved, a school board or charter school board of directors must implement that plan beginning the next school year, and they also must submit regular monitoring reports to the state school reform/redesign officer on the implementation and results of the plan. House Bill 4215 would retain these provisions, and extend them to require an emergency financial manager to implement the redesign plan and submit monitoring reports, if an emergency financial manager were in place.

House Bill 4216

The bill would amend the Revised Municipal Finance Act (MCL 141.2303) to eliminate that act's reference to the Local Government Fiscal Responsibility Act, 1990 PA 72, MCL 141.1201 to 141.1291 which would be repealed if House Bill 4214 is enacted into law. The bill would replace that reference with a reference to the new and proposed "Local Government and School District Fiscal Accountability Act."

House Bill 4217

The bill would amend the Michigan Election Law (MCL 168.971) to eliminate that act's reference to the Local Government Fiscal Responsibility Act, which would be repealed if House Bill 4214 is enacted into law. The bill would replace that reference with a reference to the new and proposed "Local Government and School District Fiscal Accountability Act."

House Bill 4218

The bill would amend the Home Rule City Act (MCL 117.36a) to eliminate that act's reference to the Local Government Fiscal Responsibility Act, which would be repealed if House Bill 4214 is enacted into law. The bill would replace that reference with a reference to the new and proposed "Local Government and School District Fiscal Accountability Act."

House Bill 4246

The bill would amend Public Act 336 of 1947, the Public Employment Relations Act, to specify that collective bargaining agreements under the act may be rejected, modified, or terminated pursuant to the Local Government and School District Fiscal Accountability Act (the act that would be created when House Bill 4214 is enacted into law).

More specifically under the bill, each collective bargaining agreement entered into between a public employer and public employees under this act after the effective date of this legislation would be required to include a provision that allowed an emergency manager appointed under the Local Government and School District Fiscal Accountability Act (created by House Bill 4214) to reject, modify, or terminate the collective bargaining agreement as provided in that act. Further, the bill specifies that provisions required by this subsection would be prohibited subjects of bargaining.

FISCAL IMPACT:

The Department of Treasury has testified that the proposed legislation will not significantly increase its costs. Other potential fiscal impacts are under review.

Legislative Analyst: J. Hunault

Fiscal Analysts: Jim Stansell

Mary Ann Cleary

Bethany Wicksall

Ben Gielczyk

■ This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.