2013 -- H 5545

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LC01122

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO TOWNS AND CITIES - BUDGET COMMISSIONS

     Introduced By: Representatives Phillips, Silva, Casey, Corvese, and Guthrie

     Date Introduced: February 14, 2013

     Referred To: House Finance

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 45-9-3, 45-9-6, 45-9-7 and 45-9-10 of the General Laws in

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Chapter 45-9 entitled "Budget Commissions" are hereby amended to read as follows:

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     45-9-3. Appointment and duties of fiscal overseer. -- (a) Upon joint request by a city's

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or town's elected chief executive officer and city or town council, which request is approved by

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the division of municipal finance and the auditor general, or in absence of such a request, in the

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event that the director of revenue, in consultation with the auditor general, makes any two (2) or

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more of the findings set forth in subsection (b), the director of revenue may appoint a fiscal

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overseer for the city or town to assess the ability of the city or town government to manage the

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city's or town's fiscal challenges.

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      (b) The director of revenue may appoint a fiscal overseer if the director finds in his or

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her sole discretion that any two (2) of the following events have occurred which are of such a

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magnitude that they threaten the fiscal well-being of the city or town, diminishing the city or

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town's ability to provide for the public safety or welfare of the citizens of the city or town:

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      (1) The city or town projects a deficit in the municipal budget in the current fiscal year

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and again in the upcoming fiscal year;

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      (2) The city or town has not filed its audits with the auditor general by the deadlines

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required by law for two (2) successive fiscal years (not including extensions authorized by the

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auditor general);

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      (3) The city or town has been downgraded by one of the nationally recognized statistical

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rating organizations;

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      (4) The city or town is otherwise unable to obtain access to credit markets on reasonable

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terms in the sole judgment of the director of revenue.

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      (5) The city or town does not promptly respond to requests made by the director of

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revenue, or the auditor general, or the chairpersons of the house and/or senate finance committees

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for financial information and operating data necessary to assess the fiscal condition of the city or

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town in the sole judgment of the director of revenue.

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      (c) The director of revenue may also appoint a fiscal overseer if a city or town fails to

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comply with the requirements of sections 45-12-22.1 -- 45-12-22.5 of the general laws.

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      (d) The fiscal overseer shall without limitation:

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      (1) Recommend to the elected chief executive officer, city or town council and school

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committee sound fiscal policies for implementation;

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      (2) Supervise all financial services and activities;

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      (3) Advise the assessors, director of finance, city or town treasurer, purchasing agent and

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employees performing similar duties but with different titles;

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      (4) Provide assistance in all matters related to municipal financial affairs;

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      (5) Assist in development and preparation of the municipal budget, all department

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budgets and spending plans;

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      (6) Review all proposed contracts and obligations;

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      (7) Monitor the expenditures of all funds;

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      (8) Approve the annual or supplemental municipal budgets of the city or town and all of

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its departments; and

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      (9) Report monthly to the director of revenue, the auditor general, the governor and the

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chairpersons of the house finance and senate finance committees on the progress made towards

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reducing the municipality's deficit and otherwise attaining fiscal stability.

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      (e) All department budgets and requests for municipal budget transfers shall be

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submitted to the fiscal overseer for review and approval.

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      (f) The city or town shall annually appropriate amounts sufficient for the proper

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administration of the fiscal overseer and staff, as determined in writing by the division of

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municipal finance. If the city or town fails to appropriate such amounts, the division of municipal

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finance shall direct the general treasurer to deduct the necessary funds from the city's or town's

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distribution of state aid and shall expend those funds directly for the benefit of the fiscal overseer

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and staff.

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      (g) (f) Within one hundred twenty (120) days of being appointed by the director of

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revenue, the fiscal overseer shall develop a three (3)-year operating and capital financial plan to

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achieve fiscal stability in the city or town. The plan shall include a preliminary analysis of the

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city's or town's financial situation and the fiscal overseer's initial recommendations to

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immediately begin to address the city's or town's operating and structural deficits. The fiscal

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overseer shall have the power to compel operational, performance or forensic audits, or any other

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similar assessments. The fiscal overseer shall have the power, at the expense of the city or town,

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to employ, retain, supervise such managerial, professional and clerical staff as are necessary to

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carry out the responsibility of fiscal overseer, subject to the approval of the division of municipal

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finance; provided, however, that the fiscal overseer shall not be subject to chapter 37-2 or chapter

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45-55 of the general laws in employing such staff.

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     45-9-6. Composition of budget commission. -- (a) If a budget commission is established

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under section 45-9-5 or section 45-12-22.7, it shall consist of five (5) members: three (3) of

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whom shall be designees of the director of revenue, one of whom shall be the elected chief

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executive officer of the city and one of whom shall be the president of the city or town council. In

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cities or towns in which the elected chief executive officer for purposes of this chapter is the

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president of the city or town council, one member shall be the appointed city or town manager or

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town administrator (or, if none, the city or town chief financial officer) as the fifth (5th) member.

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The budget commission shall act by a majority vote of all its members. The budget commission

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shall initiate and assure the implementation of appropriate measures to secure the financial

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stability of the city or town. The budget commission shall continue in existence until the director

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of revenue abolishes it.

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      The budget commission shall be subject to chapter 36-2 of the general laws, "Access to

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Public Records," and chapter 36-14 of the general laws, "Code of Ethics". The budget

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commission shall be subject to chapter 42-46 of the general laws "Open Meetings" when meeting

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to take action on the following matters:

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      (1) Levy and assessment of taxes;

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      (2) Rulemaking or suspension of rules;

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      (3) Adoption of a municipal budget;

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      (4) Approval of collective bargaining agreements and amendments to collective

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bargaining agreements; and

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      (5) Making a determination under section 45-9-7 that the powers of the budget

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commission are insufficient to restore fiscal stability to the city or town.

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      (b) Action by the budget commission under this chapter shall constitute action by the

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city or town for all purposes under the general laws, under any special law and under the city or

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town charter.

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      (c) Until the budget commission ceases to exist, no appropriation, borrowing

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authorization, transfer, or other municipal spending authority shall take effect until approved by

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the budget commission. The budget commission shall approve all appropriations, borrowing

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authorizations, transfers and other municipal spending authorizations, in whole or part.

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      (d) In addition to the authority and powers conferred elsewhere in this chapter, and

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notwithstanding any city or town charter provision or local ordinance to the contrary, the budget

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commission shall have the power to:

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      (1) Amend, formulate and execute the annual municipal budget and supplemental

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municipal budgets of the city or town, including the establishment, increase or decrease of any

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appropriations and spending authority for all departments, budget commissions, committees,

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agencies or other units of the city or town; provided, however, that notwithstanding sections 16-2-

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9 and 16-2-18 of the general laws, this clause shall fully apply to the school department and all

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school spending purposes;

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      (2) Implement and maintain uniform budget guidelines and procedures for all

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departments;

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      (3) Amend, formulate and execute capital budgets, including to amend any borrowing

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authorization, or finance or refinance any debt in accordance with the law;

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      (4) Amortize operational deficits in an amount as the director of revenue approves and

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for a term not longer than five (5) years;

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      (5) Develop and maintain a uniform system for all financial planning and operations in

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all departments, offices, boards, commissions, committees, agencies or other units of the city's or

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town's government;

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      (6) Review and approve or disapprove all proposed contracts for goods or services;

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      (7) Notwithstanding any general or special law to the contrary, establish, increase or

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decrease any fee, rate or charge, for any service, license, permit or other municipal activity,

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otherwise within the authority of the city or town;

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      (8) Appoint, remove, supervise and control all city and town employees and have control

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over all personnel matters other than disciplinary matters; provided, that the budget commission

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shall hold all existing powers to hire and fire and set the terms and conditions of employment

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held by other employees or officers of the city or town; provided, further, that the budget

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commission shall have the authority to exercise all powers otherwise available to a municipality

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regarding contractual obligations during a fiscal emergency; provided, further, that no city or

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town employee or officer shall hire, fire, transfer or alter the compensation or benefits of a city or

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town employee except with the written approval of the budget commission; and provided, further,

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that the budget commission may delegate or otherwise assign these powers with the approval of

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the director of revenue;

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      (9) Alter or eliminate the compensation and/or benefits of elected officials of the city or

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town to reflect the fiscal emergency and changes in the responsibilities of the officials as

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provided by this chapter;

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      (10) Employ, retain and supervise such managerial, professional and clerical staff as are

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necessary to carry out its responsibilities; provided, however, that such employment, retention

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and supervisory decisions are subject to the approval of the director of revenue; provided, further,

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that the budget commission shall not be subject to chapter 37-2 or chapter 45-55 of the general

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laws in employing such staff; provided, further, that the budget commission, with the approval of

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the director of revenue, shall have authority to set the compensation, terms and conditions of

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employment of its own staff; provided, further, that the city or town shall annually appropriate

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amounts sufficient for the compensation of personnel hired under this clause as determined and

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fixed by the budget commission; provided, further, that if the city or town fails to appropriate

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such amounts, the director of revenue shall direct the general treasurer to deduct the necessary

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funds from the city's or town's distribution of state aid and shall expend those funds directly for

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the benefit of the budget commission;

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      (11) Reorganize, consolidate or abolish departments, commissions, authorities, boards,

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offices or functions of the city or town, in whole or in part, and to establish such new

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departments, commissions, authorities, boards, offices or functions as it deems necessary, and to

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transfer the duties, powers, functions and appropriations of one department, commission, board,

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office or other unit to another department, commission, authority, board or office and in

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connection therewith remove and appoint new members for any such commission, authority,

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board or department which appointees shall serve the remainder of any unexpired term of their

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predecessor;

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      (12) Appoint, in consultation with the director of revenue, persons to fill vacancies on

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any authority, board, committee, department or office;

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      (13) Sell, lease or otherwise transfer real property and other assets of the city or town

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with the approval of the director of revenue;

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      (14) Purchase, lease or otherwise acquire property or other assets on behalf of the city or

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town with the approval of the director of revenue;

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      (15) Enter into contracts, including, but not limited to, contracts with other governmental

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entities, and such other governmental entities are hereby authorized to enter into such contracts;

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      (16) Adopt rules and regulations governing the operation and administration of the city

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or town which permit the budget commission to effectively carry out this chapter under

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subsection 42-35-3(b) of the general laws;

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      (17) Alter or rescind any action or decision of any municipal officer, employee, board,

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authority or commission within fourteen (14) days after receipt of notice of such action or

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decision;

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      (18) Suspend, in consultation with the director of revenue any rules and regulations of

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the city or town;

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      (19) Notwithstanding any other general law, special act, charter provision or ordinance,

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and in conformity with the reserved powers of the general assembly pursuant to Article XIII,

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section 5 of the Constitution of the state, a budget commission is authorized to issue bonds, notes

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or certificates of indebtedness to fund the deficit of a city or town without regard to section 45-

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12-22.4 of the general laws, to fund cash flow and to finance capital projects. Bonds, notes or

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certificates of indebtedness issued under authority of this chapter shall be general obligation

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bonds backed by the full faith and credit and taxing power of the city or town; provided, however,

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that the budget commission may pledge future distributions of state aid for the purpose of retiring

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such bonds, notes or certificates of indebtedness. If any state aid is so pledged, the budget

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commission shall execute on behalf of the city or town a trust agreement with a corporate trustee,

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which may be any bank or trust company having the powers of a trust company within the state,

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and any state aid so pledged shall be paid by the general treasurer directly to the trustee to be held

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in trust and applied to the payment of principal and interest on such bonds, notes or certificates of

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indebtedness; any earnings derived from the investment of such pledged aid shall be applied as

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needed to the payment of that principal and interest and for trustee's fees and related expenses,

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with any excess to be paid to the city or town. Bonds, notes or certificates of indebtedness

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authorized under authority of this chapter shall be executed on behalf of the city or town by a

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member of the commission and, except as provided for in this chapter, may be subject to the

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provisions of chapter 45-12 of the general laws so far as apt, or may be subject to the provisions

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of any special bond act enacted authorizing the issuance of bonds of a city or town so far as apt,

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provided, however that any bonds or notes issued for school purposes must be approved by the

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general assembly in order to qualify for school housing aid as set forth in chapter 16-7 of the

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general laws; and

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      (20) Exercise all powers under the general laws and this chapter or any special act, any

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charter provision or ordinance that any elected official of the city or town may exercise, acting

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separately or jointly; provided, however, that with respect to any such exercise of powers by the

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budget commission, the elected officials shall not rescind or take any action contrary to such

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action by the budget commission so long as the budget commission continues to exist.

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      (21) Certify to the Rhode Island department of revenue the need to advance payments of

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the state's basic education program under chapter 7 of title 16 of the Rhode Island general laws in

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the amount determined by the budget commission. Said amount shall be advanced, subject to

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approval of the director of the department of revenue, notwithstanding any general or public law

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to the contrary. The director of the department of revenue shall provide notice of any advance

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payments to the fiscal advisors of the house and senate finance committees. The state general

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treasurer shall deduct the estimated cost to the state's general fund resulting from any advance

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payments.

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     45-9-7. Appointment of receiver. -- If the budget commission established by section 45-

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9-5 concludes that its powers are insufficient to restore fiscal stability to the city or town, it shall

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so notify the director of revenue, and shall forward to the director of revenue a statement of the

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reasons why it has been unable to restore fiscal stability to the city or town. Upon receipt of such

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statement, the director of revenue shall terminate the existence of the budget commission,

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notwithstanding section 45-9-5, and the director of revenue shall appoint a receiver for the city or

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town for a period as the director of revenue may determine. The director of revenue may, at any

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time, and without cause, remove the receiver and appoint a successor, or terminate the

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receivership.

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      (b) The receiver shall have the following powers:

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      (1) All powers of the fiscal overseer and budget commission under sections 45-9-2 and

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45-9-6. Such powers shall remain through the period of any receivership;

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      (2) The power to exercise any function or power of any municipal officer or employee,

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board, authority or commission, whether elected or otherwise relating to or impacting the fiscal

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stability of the city or town including, without limitation, school and zoning matters; and

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      (3) The power to file a petition in the name of the city or town under Chapter 9 of Title

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11 of the United States Code, and to act on the city's or town's behalf in any such proceeding.

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      (c) Upon the appointment of a receiver, the receiver shall have the right to exercise the

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powers of the elected officials under the general laws, special laws and the city or town charter

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and ordinances relating to or impacting the fiscal stability of the city or town including, without

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limitation, school and zoning matters; provided, further, that the powers of the receiver shall be

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superior to and supersede the powers of the elected officials of the city or town shall continue to

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be elected in accordance with the city or town charter, and shall serve in an advisory capacity to

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the receiver. The receiver shall allow the city's or town's elected officials to serve their

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constituents by providing advice to the receiver on the matters relating to the operation of the city

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or town. In the event a conflict arises between the chief elected official or city or town council

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and the receiver, the receiver's decision shall prevail. The director of revenue shall determine the

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salary of the receiver, which salary shall be payable by the city or town state.

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     45-9-10. Appointment of administration and finance officer upon abolition of fiscal

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overseer, budget commission or receiver. -- (a) Notwithstanding any general or special law or

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city or town ordinance to the contrary, this section shall apply upon abolition of the fiscal

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overseer or a budget commission or a receiver established under this chapter, upon a

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determination, in writing, by the director of revenue that the financial condition of the city or

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town has improved to a level such that a fiscal overseer, a budget commission or a receiver is no

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longer needed.

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      (b) For a period of five (5) years after the abolition of a fiscal overseer, or a budget

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commission or a receiver in any city or town, there shall be in the city or town a department of

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administration and finance which shall be responsible for the overall budgetary and financial

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administration of the city or town. The department shall be under the direction and control of the

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officer appointed pursuant to subsection (c) below. The officer shall report to and be under the

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charge and direction of the elected chief executive officer. Nothing in this section shall abrogate

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the powers and duties of the school committee under any general or special law, except as

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specifically provided in this section.

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      Whenever the term "department of finance" or "finance department" appears in a general

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or special law or an ordinance, regulation, contract or other document with reference to the city or

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town, it shall mean the department of administration and finance of the city or town. Whenever

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the term "chief financial officer", "director of finance", "financial director" or "treasurer" appears

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in a general or special law or an ordinance, regulation, contract or other document with reference

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to the city or town, it shall mean the officer of the city or town.

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      (c) The elected chief executive officer shall appoint the officer from a list of three (3)

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names submitted by the division of municipal finance, for a term of not more than five (5) years,

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as provided in this subsection. The officer shall be appointed solely on the basis of administrative

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and executive qualifications and shall be a person especially fitted by education, training and

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experience to perform the duties of the office. The officer need not be a resident of the city or

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town or the state. In the event of a vacancy in the office of officer the same process will be used.

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      (d) While the process of appointing an officer under subsection (c) is proceeding, the

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elected chief executive officer may appoint an acting officer.

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      (e) The appointment, including an acting appointment, or removal of the officer shall not

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take effect until it has been approved in writing by the division of municipal finance.

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      (f) The powers and duties of the officer shall include the following:

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      (1) Coordinating, administering and supervising all financial services and activities;

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      (2) Assisting in all matters related to municipal financial affairs;

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      (3) Implementing and maintaining uniform systems, controls and procedures for all

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financial activities in all departments, boards, commissions, agencies, offices or other units of city

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or town government the operations of which have a financial impact upon the general fund and

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enterprise funds of the city or town, and including, but not limited to, maintaining all financial

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and accounting data and records;

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      (4) Implementing and maintaining uniform financial data processing capabilities for all

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departments, boards, commissions, agencies and offices;

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      (5) Supervising all financial data processing activities;

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      (6) Implementing and maintaining uniform budget guidelines and procedures within all

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departments, boards, commissions, agencies, offices and other units of city or town government;

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      (7) Assisting in the development and preparation of all department, board, commission,

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agency and office budgets and spending plans;

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      (8) Reviewing all proposed contracts to which the city or town is party;

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      (9) Monitoring the expenditure of all city or town funds, including periodic reporting by

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and to appropriate agencies of the status of accounts;

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      (10) Reviewing the spending plan for each department, board, commission, agency and

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office; and

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      (11) Providing for the allotment of funds on a periodic basis as provided for in this

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chapter.

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      In all cases where the duty is not expressly charged to any other department, board,

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commission, agency or office, it shall be the duty of the officer to promote, secure and preserve

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the financial interests of the city or town.

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      (g) All department, board, commission, agency and office budgets and requests for

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budget transfers shall be submitted to the officer for review and recommendation before

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submission to the elected chief executive officer, city or town council or school committee, as

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appropriate. For each proposed appropriation order, lease or contract arrangement for a term,

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including more than one fiscal year, collective bargaining agreement and with respect to any

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proposed city or town council vote necessary to effectuate a financial transfer, ordinance revision

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or special legislation which may require the expenditure of funds or otherwise financially obligate

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the city or town for a period in excess of one year, or with respect to a vote to authorize a

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borrowing under a law other than sections 45-12-4.1, 45-12-4.2 or 45-12-4.3 of the general laws,

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the officer shall, if it be the case, submit in writing to the elected chief executive officer, city or

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town council or school committee, as appropriate, a certification that it is the officer's

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professional opinion, after an evaluation of all pertinent financial information reasonably

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available, that the city's or town's financial resources and revenues are, and will continue to be,

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adequate to support such proposed expenditures or obligations without a detrimental impact on

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the provision of municipal services. If the officer fails to provide this certification within seven

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(7) days after a request for such certification from the elected chief executive officer, city or town

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council or school committee, the appropriation order, financial transfer, ordinance revision,

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special legislation or borrowing authorization may nonetheless be approved, but the absence of

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the certification of the officer shall be expressly noted in that order or vote.

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      (h) All departments, officers, boards, commissions, agencies and other units of the city

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or town, shall submit budget requests to the elected chief executive officer upon the schedule and

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in the form established by the officer.

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      (i) Annually, not later than March 30, the officer shall submit a four (4)-year financial

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plan and a five (5)-year capital plan to the city or town council that includes all capital needs of

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the city or town.

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      (j) The assessor, treasurer, finance director, controller, director of information

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technology, purchasing agent, director of human resources, labor relations director and employees

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performing similar duties but with different titles shall report to and be under the direction of the

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officer. The officer, with the approval of the elected chief executive officer shall appoint all such

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officers and employees. The elected chief executive officer may also place other positions and

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departments under the direction of the officer.

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      (k) The officer shall not assume the duties or responsibilities of the treasurer or the

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finance director and shall not hold an elective office and shall devote the officer's full-time and

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attention to the officer's duties.

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      (l) The city or town shall annually appropriate amounts sufficient for the proper

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administration of the department, as determined in writing by the division of municipal finance. If

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the city or town fails to appropriate such amounts, the division of municipal finance shall direct

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the general treasurer to deduct the necessary funds from the city's or town's distribution of the

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city's or town's state aid and shall expend those funds directly for the benefit of the department.

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      (m) (l) The officer shall comply with all requests of the school department to provide any

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information relating to the operation of the school department held within the authority or control

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of the officer as the result of the consolidation of school and city or town business and financial

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functions under sections 45-9-3 or 45-9-6. If the officer, or any employee under the control of the

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officer, refuses to provide such information or engages in unreasonable delay, the school

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department shall notify the division of municipal finance. The division of municipal finance shall,

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within a reasonable time, make a determination whether any such information shall be provided

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to the school department which shall be binding upon the officer and the school department. The

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division of municipal finance's determination shall not be an adjudicatory proceeding reviewable

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under chapter 42-35 of the general laws. Nothing in this subsection shall abrogate any of the other

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powers or duties of the school committee under the general laws.

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     SECTION 2. Chapter 45-9 of the General Laws entitled "Budget Commissions" is hereby

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amended by adding thereto the following section:

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     45-9-24. Payment of costs. – The state shall pay all costs and expenses incurred by the

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fiscal overseer, budget and review commission, receiver or administration and finance officer

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including, without limitation, all costs and expenses incurred with respect to any managerial,

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professional or clerical staff hired, retained, or employed by the fiscal overseer, budget and

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review commission, receiver, or administration and finance officer under this chapter.

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     SECTION 3. This act shall take effect upon passage and shall be retroactive to January 1,

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2012.

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LC01122

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TOWNS AND CITIES - BUDGET COMMISSIONS

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     This act would require the state to pay all costs and expenses incurred by a fiscal

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overseer, budget and review commission, receiver, or administration and finance officer.

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     This act would take effect upon passage and would be retroactive to January 1, 2012.

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LC01122

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