HOUSE BILL No. 4326

 

March 11, 2015, Introduced by Rep. Poleski and referred to the Committee on Financial Liability Reform.

 

     A bill to amend 2012 PA 436, entitled

 

"Local financial stability and choice act,"

 

by amending sections 2 and 4 (MCL 141.1542 and 141.1544).

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2. As used in this act:

 

     (a) "Chapter 9" means chapter 9 of title 11 of the United

 

States Code, 11 USC 901 to 946.

 

     (b) "Chief administrative officer" means any of the following:

 

     (i) The manager of a village or, if a village does not employ a

 

manager, the president of the village.

 

     (ii) The city manager of a city or, if a city does not employ a

 

city manager, the mayor of the city.

 

     (iii) The manager of a township or the manager or superintendent

 

of a charter township or, if the township does not employ a manager

 

or superintendent, the supervisor of the township.


 

     (iv) The elected county executive or appointed county manager

 

of a county or, if the county has not adopted the provisions of

 

either 1973 PA 139, MCL 45.551 to 45.573, or 1966 PA 293, MCL

 

45.501 to 45.521, the county's chairperson of the county board of

 

commissioners.

 

     (v) The chief operating officer of an authority or of a public

 

utility owned by a city, village, township, or county.

 

     (vi) The superintendent of a school district.

 

     (c) "Creditor" means either of the following:

 

     (i) An entity that has a noncontingent claim against a local

 

government that arose at the time of or before the commencement of

 

the neutral evaluation process and whose claim represents at least

 

$5,000,000.00 or comprises more than 5% of the local government's

 

debt or obligations, whichever is less.

 

     (ii) An entity that would have a noncontingent claim against

 

the local government upon the rejection of an executory contract or

 

unexpired lease in a chapter 9 case and whose claim would represent

 

at least $5,000,000.00 or would comprise more than 5% of the local

 

government's debt or obligations, whichever is less.

 

     (d) "Debtor" means a local government that is authorized to

 

proceed under chapter 9 by this act and that meets the requirements

 

of chapter 9.

 

     (e) "Emergency manager" means an emergency manager appointed

 

under section 9. An emergency manager includes an emergency

 

financial manager appointed under former 1988 PA 101 or former 1990

 

PA 72 who was acting in that capacity on the effective date of this

 

act.March 28, 2013.


 

     (f) "Entity" means a partnership, nonprofit or business

 

corporation, limited liability company, labor organization, or any

 

other association, corporation, trust, or other legal entity.

 

     (g) "Financial and operating plan" means a written financial

 

and operating plan for a local government under section 11,

 

including an educational plan for a school district.

 

     (h) "Good faith" means participation by an interested party or

 

a local government representative in the neutral evaluation process

 

with the intent to negotiate a resolution of the issues that are

 

the subject of the neutral evaluation process, including the timely

 

provision of complete and accurate information to provide the

 

relevant participants through the neutral evaluation process with

 

sufficient information, in a confidential manner, to negotiate the

 

readjustment of the local government's debt.

 

     (i) "Interested party" means a trustee, a committee of

 

creditors, an affected creditor, an indenture trustee, a pension

 

fund, a bondholder, a union that under its collective bargaining

 

agreements has standing to initiate contract negotiations with the

 

local government, or a representative selected by an association of

 

retired employees of the public entity who receive income or

 

benefits from the public entity. A local government may invite

 

holders of contingent claims to participate as interested parties

 

in the neutral evaluation process if the local government

 

determines that the contingency is likely to occur and the claim

 

may represent at least $5,000,000.00 or comprise more than 5% of

 

the local government's debt or obligations, whichever is less.

 

     (j) "Local emergency financial assistance loan board" means


 

the local emergency financial assistance loan board created under

 

section 2 of the emergency municipal loan act, 1980 PA 243, MCL

 

141.932.

 

     (k) "Local government" means a municipal government or a

 

school district.

 

     (l) "Local government representative" means the person or

 

persons designated by the governing body of the local government

 

with authority to make recommendations and to attend the neutral

 

evaluation process on behalf of the governing body of the local

 

government.

 

     (m) "Local inspector" means a certified forensic accountant,

 

certified public accountant, attorney, or similarly credentialed

 

person whose responsibility it is to determine the existence of

 

proper internal and management controls, fraud, criminal activity,

 

or any other accounting or management deficiencies.

 

     (n) "Municipal government" means a city, a village, a

 

township, a charter township, a county, a department of county

 

government if the county has an elected county executive under 1966

 

PA 293, MCL 45.501 to 45.521, an authority established by law, or a

 

public utility owned by a city, village, township, or county.

 

     (o) "Neutral evaluation process" means a form of alternative

 

dispute resolution or mediation between a local government and

 

interested parties as provided for in section 25.

 

     (p) "Neutral evaluator" means an impartial, unbiased person or

 

entity, commonly known as a mediator, who assists local governments

 

and interested parties in reaching their own settlement of issues

 

under this act, who is not aligned with any party, and who has no


 

authoritative decision-making power.

 

     (q) "Receivership" means the process under this act by which a

 

financial emergency is addressed through the appointment of an

 

emergency manager. Receivership does not include chapter 9 or any

 

provision under federal bankruptcy law.

 

     (r) "Review team" means a review team appointed under section

 

4.

 

     (s) "School board" means the governing body of a school

 

district.

 

     (t) "School district" means a school district as that term is

 

defined in section 6 of the revised school code, 1976 PA 451, MCL

 

380.6, or an intermediate school district as that term is defined

 

in section 4 of the revised school code, 1976 PA 451, MCL 380.4.

 

     (u) "State financial authority" means the following:

 

     (i) For a municipal government, the state treasurer.

 

     (ii) For Except as otherwise provided in subparagraph (iii), for

 

a school district, the superintendent of public instruction.

 

     (iii) For a school district subject to a deficit elimination

 

plan under section 1220 of the revised school code, 1976 PA 451,

 

MCL 380.1220, the state treasurer.

 

     (v) "Strong mayor" means a mayor who has been granted veto

 

power for any purpose under the charter of that local government.

 

     (w) "Strong mayor approval" means approval of a resolution

 

under 1 of the following conditions:

 

     (i) The strong mayor approves the resolution.

 

     (ii) The resolution is approved by the governing body with

 

sufficient votes to override a veto by the strong mayor.


 

     (iii) The strong mayor vetoes the resolution and the governing

 

body overrides the veto.

 

     Sec. 4. (1) The Subject to subsection (2), the state financial

 

authority may conduct a preliminary review to determine the

 

existence of probable financial stress within a local government if

 

1 or more of the following occur:

 

     (a) The governing body or the chief administrative officer of

 

a local government requests a preliminary review. The request shall

 

be in writing and shall identify the existing or anticipated

 

financial conditions or events that make the request necessary.

 

     (b) The state financial authority receives a written request

 

from a creditor with an undisputed claim that remains unpaid 6

 

months after its due date against the local government that exceeds

 

the greater of $10,000.00 or 1% of the annual general fund budget

 

of the local government, provided that the creditor notifies the

 

local government in writing at least 30 days before his or her

 

request to the state financial authority of his or her intention to

 

submit a written request under this subdivision.

 

     (c) The state financial authority receives a petition

 

containing specific allegations of local government financial

 

distress signed by a number of registered electors residing within

 

the local government's jurisdiction equal to not less than 5% of

 

the total vote cast for all candidates for governor within the

 

local government's jurisdiction at the last preceding election at

 

which a governor was elected. Petitions shall not be filed under

 

this subdivision within 60 days before any election of the local

 

government.


 

     (d) The state financial authority receives written

 

notification that a local government has not timely deposited its

 

minimum obligation payment to the local government pension fund as

 

required by law.

 

     (e) The state financial authority receives written

 

notification that the local government has failed for a period of 7

 

days or more after the scheduled date of payment to pay wages and

 

salaries or other compensation owed to employees or benefits owed

 

to retirees.

 

     (f) The state financial authority receives written

 

notification 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 1 or more bond or note covenants.

 

     (g) The state financial authority of a local government

 

receives a resolution from either the senate or the house of

 

representatives requesting a preliminary review.

 

     (h) The local government has violated a requirement of, or a

 

condition of an order issued pursuant to, former 1943 PA 202, the

 

revenue bond act of 1933, 1933 PA 94, MCL 141.101 to 141.140, the

 

revised municipal finance act, 2001 PA 34, MCL 141.2101 to

 

141.2821, or any other law governing the issuance of bonds or

 

notes.

 

     (i) The municipal government has violated the conditions of an

 

order issued by the local emergency financial assistance loan board

 

pursuant to the emergency municipal loan act, 1980 PA 243, MCL

 

141.931 to 141.942.

 

     (j) The local government has violated a requirement of


 

sections 17 to 20 of the uniform budgeting and accounting act, 1968

 

PA 2, MCL 141.437 to 141.440.

 

     (k) The local government fails to timely file an annual

 

financial report or audit that conforms with the minimum procedures

 

and standards of the state financial authority and is required for

 

local governments under the uniform budgeting and accounting act,

 

1968 PA 2, MCL 141.421 to 141.440a, or 1919 PA 71, MCL 21.41 to

 

21.55.

 

     (l) If the local government is a school district, the school

 

district fails to provide an annual financial report or audit that

 

conforms with the minimum procedures and standards of the

 

superintendent of public instruction and is required under the

 

revised school code, 1976 PA 451, MCL 380.1 to 380.1852, and the

 

state school aid act of 1979, 1979 PA 94, MCL 388.1601 to 388.1896.

 

     (m) The municipal government is delinquent in the distribution

 

of tax revenues, as required by law, that it has collected for

 

another taxing jurisdiction, and that taxing jurisdiction requests

 

a preliminary review.

 

     (n) The local government is in breach of its obligations under

 

a deficit elimination plan or an agreement entered into pursuant to

 

a deficit elimination plan.

 

     (o) A court has ordered an additional tax levy without the

 

prior approval of the governing body of the local government.

 

     (p) The municipal government has ended a fiscal year in a

 

deficit condition as defined in section 21 of the Glenn Steil state

 

revenue sharing act of 1971, 1971 PA 140, MCL 141.921, or has

 

failed to comply with the requirements of that section for filing


 

or instituting a financial plan to correct the deficit condition.

 

     (q) The school district ended its most recently completed

 

fiscal year with a deficit in 1 or more of its funds and the school

 

district has not submitted a deficit elimination plan to the state

 

financial authority within 30 days after the district's deadline

 

for submission of its annual financial statement.

 

     (r) The local government has been assigned a long-term debt

 

rating within or below the BBB category or its equivalent by 1 or

 

more nationally recognized credit rating agencies.

 

     (s) The existence of other facts or circumstances that, in the

 

state treasurer's sole discretion for a municipal government, are

 

indicative of probable financial stress or that, in the state

 

treasurer's or superintendent of public instruction's sole

 

discretion for a school district, are indicative of probable

 

financial stress.

 

     (2) If 1 or more of the following occur, the state financial

 

authority of the school district shall conduct a preliminary review

 

to determine the existence of probable financial stress within the

 

school district:

 

     (a) The school district is subject to a deficit elimination

 

plan under section 1220 of the revised school code, 1976 PA 451,

 

MCL 380.1220, and the state treasurer determines that the school

 

district has failed to submit or materially comply with the

 

requirements of the deficit elimination plan.

 

     (b) The school district is subject to a deficit elimination

 

plan under section 1220 of the revised school code, 1976 PA 451,

 

MCL 380.1220, that provides for the elimination of deficit over a


 

period exceeding 5 years.

 

     (3) (2) Before commencing the preliminary review under

 

subsection (1) or (2), the state financial authority shall provide

 

the local government specific written notification that it intends

 

to conduct a preliminary review. Elected and appointed officials of

 

a local government shall promptly and fully provide the assistance

 

and information requested by the state financial authority for that

 

local government in conducting the preliminary review. The state

 

financial authority shall provide an interim report of its findings

 

to the local government within 20 days following the commencement

 

of the preliminary review. In addition, a copy of the interim

 

report shall be provided to each state senator and state

 

representative who represents that local government. The local

 

government may provide comments to the state financial authority

 

concerning the interim report within 5 days after the interim

 

report is provided to the local government. The state financial

 

authority shall prepare and provide a final report detailing its

 

preliminary review to the local emergency financial assistance loan

 

board. In addition, a copy of the final report shall be provided to

 

each state senator and state representative who represents that

 

local government. The final report shall be posted on the

 

department of treasury's website within 7 days after the final

 

report is provided to the local emergency financial assistance loan

 

board. The preliminary review and final report by the state

 

financial authority shall be completed within 30 days following

 

commencement of the preliminary review. For a preliminary review

 

conducted under subsection (2), if the final report prepared by the


 

state financial authority confirms the existence of any of the

 

factors provided in subsection (2)(a) or (b), the state financial

 

authority's confirmation is prima facie evidence that probable

 

financial stress exists for that school district. Within 20 days

 

after receiving the final report from the state financial

 

authority, the local emergency financial assistance loan board

 

shall determine if probable financial stress exists for the local

 

government.

 

     (4) (3) If a finding of probable financial stress is made for

 

a municipal government by the local emergency financial assistance

 

loan board under subsection (2), (3), the governor shall appoint a

 

review team for that municipal government consisting of the state

 

treasurer or his or her designee, the director of the department of

 

technology, management, and budget or his or her designee, a

 

nominee of the senate majority leader, and a nominee of the speaker

 

of the house of representatives. The governor may appoint other

 

state officials or other persons with relevant professional

 

experience to serve on a review team to undertake a municipal

 

financial management review.

 

     (5) (4) If a finding of probable financial stress is made for

 

a school district by the local emergency financial assistance loan

 

board under subsection (2), (3), the governor shall appoint a

 

review team for that school district consisting of the state

 

treasurer or his or her designee, the superintendent of public

 

instruction or his or her designee, the director of the department

 

of technology, management, and budget or his or her designee, a

 

nominee of the senate majority leader, and a nominee of the speaker


 

of the house of representatives. The governor may appoint other

 

state officials or other persons with relevant professional

 

experience to serve on a review team to undertake a school district

 

financial management review.

 

     (6) (5) The department of treasury shall provide staff support

 

to each review team appointed under this section.

 

     (7) (6) A review team appointed under former 1988 PA 101 or

 

former 1990 PA 72 and serving immediately prior to the effective

 

date of this act before March 28, 2013 shall continue under this

 

act to fulfill its powers and duties. All proceedings and actions

 

taken by the governor, the state treasurer, the superintendent of

 

public instruction, the local emergency financial assistance loan

 

board, or a review team under former 2011 PA 4, former 1988 PA 101,

 

or former 1990 PA 72 before the effective date of this act March

 

28, 2013 are ratified and are enforceable as if the proceedings and

 

actions were taken under this act, and a consent agreement entered

 

into under former 2011 PA 4, former 1988 PA 101, or former 1990 PA

 

72 that was in effect immediately prior to the effective date of

 

this act before March 28, 2013 is ratified and is binding and

 

enforceable under this act.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.