THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY ROHRER, BENNINGHOFF, BAKER, BOBACK, BOYD, BROOKS, CAUSER, CLYMER, CREIGHTON, CUTLER, DENLINGER, EVERETT, FLECK, GROVE, HARHART, HUTCHINSON, KAUFFMAN, M. KELLER, KNOWLES, McILVAINE SMITH, METZGAR, MILLER, MURT, MUSTIO, OBERLANDER, PICKETT, PYLE, RAPP, ROAE, ROCK, SCHRODER, STEVENSON, SWANGER, TALLMAN, TURZAI AND VULAKOVICH, NOVEMBER 16, 2009

REFERRED TO COMMITTEE ON STATE GOVERNMENT, NOVEMBER 16, 2009  

AN ACT

Establishing the Council on Mandates; and providing for its

powers and duties and for the suspension of unfunded mandates

and reimbursable mandates.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Emergency

Mandate Suspension Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Commonwealth agency."  An executive agency or independent

agency of the Commonwealth.

"Council."  The Council on Mandates established under this

act.

"Department."  The Department of Community and Economic

Development of the Commonwealth.

"Executive agency."  The Governor and any department, board,

commission, authority, officer and agency of the Commonwealth

government. The term does not include a court or other officer

or agency of the unified judicial system, the General Assembly

and any of its officers and agencies or any independent agency.

"Independent agency."  A board, commission, authority and any

other agency and officer of the Commonwealth government which is

not subject to the policy supervision and control of the

Governor. The term does not include any court or other officer

or agency of the unified judicial system or the General Assembly

and any of its officers and agencies.

"Local authority."  A political subdivision as defined in 1

Pa.C.S. § 1991 (relating to definitions).

"Local revenues."  In the case of a local authority, revenues

generated by local taxation.

"Mandate."  A duty imposed by a law enacted by the General

Assembly or by regulation or rule made by a Commonwealth agency

which requires that a local authority establish, expand or

modify its activities in such a way as to necessitate

expenditures from local revenues. The term does not include a

duty which is among the mandate exceptions enumerated in this

act or established in any other law. This term also does not

include any aspect of local taxation rates or limitations.

"Pertinent Commonwealth agency."  The Commonwealth agency

which does any of the following:

(1)  Administers or has jurisdiction over the law or

regulation pursuant to which a local authority is to

implement an unfunded mandate or reimbursable mandate.

(2)  Has the duty to make reimbursement payments to a

local authority pursuant to a regularly scheduled

reimbursement regimen.

(3)  Has the duty to monitor a local authority's

compliance with implementation of an unfunded mandate or

reimbursable mandate.

"Public officers."  An elected or appointed local authority

officer as provided by State law.

"Redesigned implementation plan" or "redesigned

implementation."  The development and usage by a local authority

of alternative methods, actions, procedures and approaches to

implementing a given reimbursable mandate in addition to those

methods, actions, procedures and approaches authorized or

sanctioned by applicable law or regulation.

"Regularly scheduled reimbursement regimen."  The time

schedule by which the Commonwealth is required by statute or

regulation to make reimbursement payments to a local authority

for the implementation of a given reimbursable mandate.

"Regulation."  A rule, regulation or order in the nature of a

rule or regulation, promulgated by a Commonwealth agency under

statutory authority in the administration of any statute

administered by or relating to the Commonwealth agency.

"Reimbursable mandate."  A mandate for which the Commonwealth

provides a local authority with Federal or State financial

resources to meet, either fully or partially, the costs

associated with the local authority's implementation of a law or

regulation, and that is paid by the Commonwealth to the local

authority pursuant to a regularly scheduled reimbursement

regimen.

"Unfunded mandate."  A mandate which does not provide a local

authority with any Federal or State financial resources to

defray the costs incurred by the local authority for the

implementation of a law or regulation and which mandate

effectively forces the local authority to utilize local revenues

for implementation.

Section 3.  Council on Mandates.

(a)  Establishment.--There is established within the

Governor's Center for Local Government Services within the

department an agency to be known as the Council on Mandates.

(b)  Composition.--The council shall be composed of the

following members:

(1)  The Director of the Governor's Center for Local

Government Services, who shall serve ex officio.

(2)  Eight members who shall be appointed as follows:

(i)    Four individuals shall be appointed by the

Governor, each of whom must have at least four years of

service as a member of a governing body of a local

authority.

(ii)  Four members of the General Assembly shall be

appointed as follows:

(A)  One individual to be appointed by the

President pro tempore of the Senate.

(B)    One individual to be appointed by the

Minority Leader of the Senate.

(C)    One individual to be appointed by the

Speaker of the House of Representatives.

(D)    One individual to be appointed by the

Minority Leader of the House of Representatives.

(c)  Meetings, term of office and expenses.--

(1)  The council shall convene on at least a monthly

basis and at such other times as deemed warranted by the

chair.

(2)  Members appointed by the Governor and legislative

members shall serve at the pleasure of the appointing

authority.

(3)  Council members shall receive no compensation for

service on the council, but shall be reimbursed for

reasonable expenses incurred in the performance of their

official duties.

(d)  Quorum.--A majority of the council shall constitute a

quorum. A majority of the members present shall be necessary to

transact business on behalf of the council.

(e)  Application of laws.--The council shall be subject to

the provisions of 65 Pa.C.S. Ch. 7 (relating to open meetings)

and the act of February 14, 2008 (P.L.6, No.3), known as the

Right-to-Know Law.

(f)  Powers and duties of council.--The council shall have

the power and its duty shall be to:

(1)    Provide public notice of official actions taken

under this act, as it deems appropriate, through publication

in the Pennsylvania Bulletin.

(2)    Declare a revenue shortfall condition in accordance

with subsection (g).

(3)    Render decisions in the event of a challenge in

accordance with the provisions of subsection (h).

(4)  Act as a source of information for local authorities

with regard to the exercise of the options afforded under

this act.

(5)  Give notice to a local authority that mandates are

to be applied at the completion of the period of suspension

or when suspension is otherwise terminated as provided in

this act.

(6)  Investigate allegations of a local authority's

noncompliance with this act.

(g)  Revenue shortfall condition.--

(1)  The council, on a monthly basis, shall determine,

with the cooperation of, and based upon data supplied by, the

Department of Revenue, whether a revenue shortfall condition

exists.

(2)  A revenue shortfall condition shall be declared by

the council when the actual General Fund tax revenue

collection for the Commonwealth for each of the four most

recent months for which data has been released is below the

official monthly General Fund tax revenue estimate for each

of those months.

(3)  The council shall publish public notice of the

declaration in the next available issue of the Pennsylvania

Bulletin published following the declaration.

(h)  Decisions by council.--

(1)  When a local authority suspends a mandate, not later

than 30 days after notice is provided to the council and the

pertinent Commonwealth agency in accordance with section 7,

the pertinent Commonwealth agency may petition the council in

writing to render a decision on the issue of whether the

suspension of the questioned mandate was authorized by this

act.

(2)  After receipt of a written petition seeking a

decision in accordance with paragraph (1), the council shall

hold a hearing and issue an adjudication under 2 Pa.C.S. Ch.

5 Subch. A (relating to practice and procedure of

Commonwealth agencies).

(3)  The decision of the council may be appealed to the

Commonwealth Court under 2 Pa.C.S. Ch. 7 Subch. A (relating

to judicial review of Commonwealth agency action).

(4)  (i)  Prior to the organization of the council, a

petition to render a decision on the issue of whether the

suspension of the questioned mandate was authorized by

this act shall be taken directly to the Commonwealth

Court.

(ii)  This paragraph shall not apply to petitions

filed after the organization of the council.

(i)  Administrative assistance.--The department shall utilize

existing personnel in order to provide resources and

administrative and technical support to the council to enable it

to perform its functions under this act and shall perform each

of the following duties:

(1)  Publish notice of council meetings in accordance

with 65 Pa.C.S. Ch. 7 (relating to open meetings).

(2)  Maintain a mailing list of persons who have

requested specific notification of meetings and activities of

the council.

(3)  Designate a deputy secretary to attend council

meetings and to serve as the public's liaison of the council.

Section 4.  Mandate exceptions.

(a)  General rule.--The mandate exceptions enumerated in

subsection (b) or established in any other law shall not be

included among the unfunded mandates or reimbursable mandates

which are subject to suspension in accordance with this act.

(b)  List of mandate exceptions.--A mandate exception shall

be any duty imposed by, required to implement or necessary to

avoid violating any of the following:

(1)  A court order.

(2)  A Federal law or Federal regulation.

(3)  The Constitution of the United States.

(4)  The Constitution of Pennsylvania.

(5)  With regard to a local authority of a particular

class, a law or regulation relating to the powers applicable

to that class as set forth in 53 Pa.C.S. § 2962 (relating to

limitation on municipal powers).

(6)  A law or regulation concerning the form,

organization or structure of a local authority.

(7)  A law or regulation governing elections.

(8)  A law or regulation designating a public officer or

a duty or power of a public officer.

(9)  A law or regulation regarding the ethics of a public

official or employee or the protection of the public from

malfeasance, misfeasance or nonfeasance by a public official

or employee of a local authority.

(10)  The provisions set forth in 2 Pa.C.S. Ch. 5 Subch.

B (relating to practice and procedure of local agencies) and

Ch. 7 Subch. B (relating to judicial review of local agency

action) and other laws or regulations prescribing practices

and procedures for meetings, hearings and other

administrative adjudications on behalf of a local authority

or agency of a local authority.

(11)  A law or regulation that involves the

administration of justice or procedures for administrative

and judicial review of actions taken by a local governing

body.

(12)  An existing contract, including collective

bargaining agreement.

(13)  The right to collectively bargain or to be subject

to binding arbitration.

(14)  The provisions of the act of November 10, 1999

(P.L.491, No.45), known as the Pennsylvania Construction Code

Act, and any regulations promulgated under that act.

(15)  The provisions of this act.

Section 5.  Unfunded mandate suspension.

(a)  General rule.--Notwithstanding any other provision of

law, an unfunded mandate may be suspended in accordance with

subsection (b) or (c).

(b)  Expedited initial suspension of unfunded mandates.--A

local authority may, at its sole discretion, effect suspension

of implementation of one or more unfunded mandates within its

jurisdiction within a six-month period beginning on the

effective date of this section, provided appropriate notice is

given under section 7.

(c)  Suspension of an unfunded mandate upon declaration of a

revenue shortfall condition.--An unfunded mandate may be

suspended within a local authority if, within 60 days after

council publishes notice of a revenue shortfall condition in the

Pennsylvania Bulletin in accordance with section 3(g), the local

authority effects suspension by giving appropriate notice as

provided in section 7.

Section 6.  Reimbursable mandate suspension.

(a)  General rule.--Notwithstanding any other provision of

law, a reimbursable mandate may be suspended within a local

authority if, within 60 days after the pertinent Commonwealth

agency has failed to make two full and timely consecutive

reimbursement payments pursuant to a regularly scheduled

reimbursement regimen, the local authority effects suspension by

giving appropriate notice as provided in section 7.

(b)  Reallocation of payments.--If following the suspension

of a reimbursable mandate, a local authority continues to

receive reimbursement payments in amounts less than required

under the applicable regularly scheduled reimbursement regimen

for a given reimbursable mandate, the local authority may retain

and utilize the payments as follows:

(1)  In the case of suspension without redesigned

implementation, to defray the cost of implementing other

reimbursable mandates or unfunded mandates.

(2)  In the case of suspension with redesigned

implementation, all or a portion of the payment may be used

to defray the cost of redesigned implementation of the

affected reimbursable mandate, with the remainder, if any,

being used in accordance with paragraph (1).

Section 7.  Notice of mandate suspension.

(a)  General rule.--Except as otherwise provided in

subsection (b), a local authority that suspends an unfunded

mandate or reimbursable mandate in accordance with section 5(b)

or (c) or 6(a) shall, by registered mail, return receipt

requested, send notice to the council and the pertinent

Commonwealth agency, specifying the mandate suspended and the

length of the suspension selected.

(b)  Suspensions prior to organization of council.--In any

case in which the council has not been organized at the time at

which the suspension of either an unfunded mandate or

reimbursable mandate is consummated, the local authority shall,

by registered mail, return receipt requested, send notice to the

council within 30 days after the council is organized.

(c)  Notice to General Assembly.--After receipt of

notification of a suspended mandate, the council will provide

written notification to the members of the General Assembly that

serve the county in which the suspension occurred detailing the

suspension in question.

(d)  Annual report.--The council will compile and provide the

Governor and the General Assembly a written report by no later

than July 30 of each year detailing any and all suspension-

related activity.

Section 8.  Length of suspension for unfunded mandates.

(a)  General rule.--Except as provided in subsections (b) and

(c), the length of a suspension as it pertains to an unfunded

mandate shall be effective for, at a minimum, the remainder of

the local authority’s then current fiscal year, and at the

discretion of the local authority, for not more than five

additional succeeding fiscal years of the local authority.

(b)  Mandatory reimposition.--A local authority may reimpose

implementation of a suspended unfunded mandate:

(1)  immediately upon the conclusion of the suspension

period specified in the notice provided to the council and

pertinent Commonwealth agency under section 7; or

(2)  within 30 days of receipt of notice from the council

that the council, under section 3(f)(3) and (h), has ruled

that the suspended mandate does not constitute an unfunded

mandate within the meaning of this act.

(c)  Optional reimposition.--A local authority may, in its

discretion, reimpose implementation of a suspended unfunded

mandate at any time.

(d)  Notice of reimposition.--A local authority shall notify

the council and the pertinent Commonwealth agency of the

reimposition of a suspended unfunded mandate under subsection

(b) or (c).

Section 9.  Length of suspension for reimbursable mandates.

(a)  General rule.--The length of a suspension as it pertains

to a reimbursable mandate shall be effective for, at a minimum,

the remainder of the local authority's then current fiscal year,

and at the discretion of the local authority, for not more than

five additional succeeding fiscal years of the local authority.

(b)  Resumption.--Except as provided in subsection (c), a

local authority may resume implementation of a suspended

reimbursable mandate at any time, but may not suspend

implementation of such reimbursable mandate again unless and

until suspension thereof is permissible under section 6(a).

(c)  Redesign of implementation plan.--A local authority may

elect to resume the implementation of a suspended reimbursable

mandate under a redesigned implementation plan, but may, in its

discretion and at any time, reimpose suspension in the event a

redesign implementation plan is determined by the local

authority to not effect the delivery of mandated services and

tasks in a cost-effective fashion.

(d)  Notice of reimposition.--The local authority shall

notify the council and the pertinent Commonwealth agency of the

reimposition of a suspended reimbursable mandate under

subsection (b) or (c).

Section 10.  Liability and immunity.

With regard to the civil or criminal liability, of any nature

whatsoever, of the Commonwealth, local authorities and officials

and employees of the Commonwealth and local authorities, nothing

in this act, including the suspension of any mandate, the

acceptance of suspension, withdrawal of acceptance, termination

of suspension or the use or termination of optional redesign of

implementation, shall affect, modify, enlarge or diminish the

existing legal basis for determining liability or immunity.

Section 11.  Effective date.

This act shall take effect immediately.