filing of the complaint or the commencement of the investigation on his own initiative, as the case may be, and shall order a hearing thereon at a time and place to be specified and shall give notice thereof, together with a copy of such complaint, or a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on all interested persons, including the person complained against and upon the financial officer of the civil division interested; such person complained against shall have an opportunity to be heard in respect to the matters complained of, at the time and place specified in such notice, which time shall be not less than five days from the service of said notice. The fiscal officer in such an investigation shall be deemed to be acting in a judicial capacity and shall have the rights to issue subpoenas, administer oaths and examine witnesses. The enforcement of a subpoena issued under this section shall be regulated by the civil practice law and rules. Such investigation and hearing shall be expeditiously conducted, and upon such hearing and investigation, the fiscal officer shall determine the issues raised thereon and shall make and file an order in his office stating such determination and forthwith serve a copy of such order, either personally or by mail, together with notice of filing, upon the financial officer of the civil division interested, and the parties to such proceedings and, if the fiscal officer be the comptroller or other analogous officer of a city, upon the industrial commissioner. Such order shall direct payment of wages or supplements found to be due, including interest at [a rate not less than six per centum per year and not more than] the rate of interest then in effect as prescribed by the superintendent of banks pursuant to section fourteen-a of the banking law per annum from the date of the underpayment to the date of the payment. [In determining the rate of interest to be imposed the fiscal officer shall consider the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to with recordkeeping or other non-wage requirements. ] comply In addition to directing payment of wages or supplements including interest found to be due, the order of the fiscal officer may direct payment of a further sum as a civil penalty in an amount not exceeding twenty-five percent of the total amount found to be due. In assessing the amount of the penalty, due consideration shall be given to the size of the employer's business, the good faith of the employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements. Upon the entry and service of such order, the financial officer of the civil division interested shall pay to the claimant, from the moneys due to the contractor or subcontractor, the amount of the claim as determined by the fiscal officer and the amount of the civil penalty, if any, shall be paid as provided herein, provided that no proceeding pursuant to article seventy-eight of the civil practice law and rules for review of said order is commenced by any party aggrieved thereby within thirty days from the date said order was filed in the office of the fiscal officer. Said appeal shall be directly to the appellate division of the supreme court. Where the fiscal officer is the commissioner, the civil penalty shall be paid to the commissioner for deposit in the state treasury; where the fiscal officer is a city comptroller or other analogous officer, the penalty shall be paid to said officer for deposit in the city treasury. In the event that such a proceeding for review is instituted, moneys sufficient to satisfy the claim and civil penalty shall be set aside by the financial officer interested, subject to the order of the court. § 6. Section two hundred twenty-b of such law is amended by adding a new subdivision two-a to read as follows: 2-a. The fiscal officer shall make an inquiry as to the willfulness of the alleged violation which is the subject of an investigation pursuant to subdivision two of this section. In the event a formal hearing is held pursuant to this section, the fiscal officer, upon a review of the entire record and a finding of credible evidence, must make a determination, as to the willfulness of such violation. No finding of willfullness made pursuant to the provisions of this subdivision shall be dispositive for the purposes of section one hundred ninety-eight-a of this chapter or of the last undesignated paragraph of subdivision three of section two hundred twenty of this article. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law § 7. Such law is amended by adding a new section two hundred twenty-g to read as follows: § 220-g. Additional enforcement of article. For the purpose of enforcing this article, the affected employee may bring an action to recover from the bond which is required by section one hundred thirty-seven of the state finance law, of the contractor, the subcontractor or both, unpaid wages and supplements, including interest as provided for in subdivision eight of section two hundred twenty of this article, due to persons furnishing labor to either the contractor or subcontractor. Said action may be brought against either within one year of the date of the last alleged underpayment and without prior notice. The employee may permit an employee organization to commence such action on his behalf. § 8. Section three of the lien law, as amended by chapter four hundred seventy-seven of the laws of nineteen hundred forty-one, is amended to read as follows: § 3. Mechanic's lien on real property. A contractor, subcontractor, laborer, materialman, landscape gardener, nurseryman or person or corporation selling fruit or ornamental trees, roses, shrubbery, vines and small fruits, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such laborers, shall have a lien for the principal and interest, of the value, or the agreed price, of such labor, including benefits and wage supplements due or payable for the benefit of any laborer, or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this chapter. Where the contract for an improvement is made with a husband or wife and the property belongs to the other or both, the husband or wife contracting shall also be presumed to be the agent of the other, unless such other having knowledge of the improvement shall, within ten days after learning of the contract give the contractor written notice of his or her refusal to consent to the improvement. Within the meaning of the provisions of this chapter, materials actually manufactured for but not delivered to the real property, shall also be deemed to be materials furnished. § 9. Section five of such law, as amended by chapter eight hundred seventy-eight of the laws of nineteen hundred forty-seven, is amended to read as follows: or or § 5. Liens under contracts for public improvements. A person performing labor for or furnishing materials to a contractor, his subcontractor legal representative, for the construction or demolition of a public improvement pursuant to a contract by such contractor with the state a public corporation, and any trust fund to which benefits and wage supplements are due or payable for the benefit of such person performing labor, shall have a lien for the principal and interest of the value or agreed price of such labor, including benefits and wage supplements due or payable for the benefit of any person performing labor, or materials upon the moneys of the state or of such corporation applicable to the construction or demolition of such improvement, to the extent of the amount due or to become due on such contract, and under a judgment of the court of claims awarded to the contractor for damages arising from the breach of such contract by the state, or awarded for furnishing labor or materials not contemplated by the provisions of said contract, upon filing a notice of lien as prescribed in this article, except as hereinafter in this article provided. § 10. Subdivisions one and two of section one hundred thirty-seven of the state finance law, as amended by chapter seven hundred of the laws of nineteen hundred sixty-four, are amended to read as follows: 1. In addition to other bond or bonds, if any, required by law for the completion of a work specified in a contract for the prosecution of a public improvement for the state of New York a municipal corporation, a public benefit corporation or a commission appointed pursuant to law, or in the absence of any such requirement, the comptroller may or the other appropriate official, respectively, shall nevertheless require prior to the approval of any such contract a bond guaranteeing prompt payment of moneys due to all persons furnishing labor or materials to the contractor or his subcontractors in the prosecution of the work provided for in such contract. 2. A copy of such payment bond shall be kept in the office of the head of the department or bureau having charge of the public improvement in connection with which the bond was given and a copy shall also be kept in the office of the comptroller or other appropriate official; such copies shall be open to public inspection. ૐ 11. This act shall take effect January first, nineteen hundred eighty-six and shall apply to all public works contracts sent out to bid on or after such date. CHAPTER 138 (See REPEAL NOTE at end of Chapter.) AN ACT to amend chapter forty-four of the laws of nineteen hundred eighty-five, amending the tax law and the energy law relating to the imposition of certain motor fuel taxes, in relation to ensuring the enforcement of the provisions of article twelve-a of the tax law imposing a tax on gasoline and similar motor fuel and to repeal section fourteen of chapter sixty-five of the laws of nineteen hundred eightyfive, amending the civil practice law and rules, the criminal procedure law and the tax law relating to the omnibus tax equity and enforcement act of nineteen hundred eighty-five Became a law May 31, 1985, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section forty-two of chapter forty-four of the laws of nineteen hundred eighty-five, amending the tax law and the energy law relating to the imposition of certain motor fuel taxes, is amended to read as follows: § 42. This act shall take effect immediately, except that sections one through thirty-six shall take effect June first, nineteen hundred eighty-five, (except that section ten of this act, with respect to the sentence deleted by such section ten, shall take effect on the first day of November next succeeding the date on which it shall have become a law, and except that section thirteen of this act with respect to the repeal of subdivisions two and three of section two hundred eightynine-b of the tax law shall take effect on the first day of November next succeeding the date on which it shall have become a law) and shall apply to all taxable events respecting motor fuel as such events are defined in section eleven hundred two of the tax law, as amended by this act, and automotive fuel occurring on and after such date and an amount equivalent to the sales taxes paid by or passed through to a purchaser upon sales of motor fuel before such date at the regional average retail sales price pursuant to the provisions of articles twenty-eight and twenty-nine of the tax law in effect prior to such date shall be allowed such purchaser as a credit or refund, where a refund or credit would be allowable after such date under the tax law, as amended by this act, against the tax required to be prepaid pursuant to section eleven hundred two and passed through or required to be collected or paid pursuant to section eleven hundred five or eleven hundred ten of the tax law upon sales or uses of such motor fuel occurring on and after such date and provided further, however, that no refund or credit shall be allowed pursuant to this provision with respect to motor fuel placed into the ordinary fuel tank connected with the engine of such vehicle prior to such date notwithstanding use of such fuel thereafter. § 2. Section fourteen of chapter sixty-five of the laws of nineteen hundred eighty-five, amending the civil practice law and rules, the criminal procedure law and the tax law relating to the omnibus_tax equity and enforcement act of nineteen hundred eighty-five, is repealed. § 3. This act shall take effect immediately. REPEAL NOTE.-Section fourteen of chapter sixty-five of the laws of nineteen hundred eighty-five repealed subdivisions two and three of section two hundred eighty-nine-b of the tax law. Such repeal is unnecessary in light of section thirteen of chapter forty-four of the laws of nineteen hundred eighty-five. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law CHAPTER 139 AN ACT to authorize certain school districts to finance certain revenue shortfalls by the issuance of revenue anticipation notes Became a law May 31, 1985, with the approval of the Governor. The People of the State of New York, represented in Senate and Assembly, do enact as follows: in Section 1. It is hereby found and declared that a financial emergency exists in the nineteen hundred eighty-four-eighty-five school year certain school districts in this state, resulting from the filing by Lion Capital Group and RTD Securities, Inc. of petitions under chapter eleven of title eleven of the United States Code. The filing of such bankruptcy petitions has created a revenue and cash shortfall for such school districts in their current year, and without the provisions of this act such school districts may incur deficits in their nineteen hundred eighty-four-eighty-five school year and be unable to meet their financial obligations, such as payments to vendors, employee payrolls and debt service payments. These factors may have a negative impact on the educational well-being of the children served by the affected school districts through budgetary cutbacks and possible reductions in educational programs. The legislature declares that it is in the interests of the state, the school districts and the children of the school districts to assure the financial stability of the affected school districts through the remainder of the nineteen hundred eighty-four-eighty-five school year. § 2. School districts eligible to issue revenue anticipation notes in accordance with the provisions of this act shall be those districts which, have or will have experienced certain cash interruptions as a direct result of the chapter eleven filing of Lion Capital Group and/or RTD Securities, Inc., and will have exhausted all available unrestricted cash prior to the last day of the nineteen hundred eighty-four-eightyfive school year and which are unable to satisfy obligations due and owing in the nineteen hundred eighty-four-eighty-five school year for which a budgetary appropriation has been made in that year. § 3. The commissioner of education, in order to implement the provisions of this act, shall determine (1) which school districts meet the requirement of section two of this act and (2) the maximum amount of revenue anticipation notes which each such district may issue in accordance with the provisions of this act. The commissioner shall prescribe the information to be furnished to him and the procedures to be used to make such determinations. The commissioner shall have the power to authorize any such school district to issue revenue anticipation notes in an amount not in excess of the maximum amount determined pursuant to this act and such determinations and authorization by the commissioner of education shall be conclusive as to the school districts which may issue revenue anticipation notes under this act and the maximum amount of such revenue anticipation notes. § 4. School districts which the commissioner of education determines are eligible to use the provisions of this act may issue revenue anticipation notes in accordance with section 25.00 of the local finance law during the six weeks prior to the commencement of the nineteen hundred eighty-five-eighty-six school year, in anticipation of moneys to be received in such school year, notwithstanding the provisions of paragraph с of such section 25.00. Notwithstanding the provisions of paragraph e of such section 25.00, such school districts may use the proceeds of the revenue anticipation notes issued pursuant to this act to meet expenditures for which a budgetary appropriation has been made in the nineteen hundred eighty-four-eighty-five school year. Notwithstanding the provisions of paragraph f of such section 25.00, revenue anticipation notes issued under this act shall mature not later than the last day of the nineteen hundred eighty-five-eighty-six school year, and no renewals thereof may mature beyond such date. § 5. 1. Any school district authorized to issue revenue anticipation notes pursuant to this act may elect to have established a school district state aid reserve account applicable to such notes. A school dis trict shall make such election by written notice to the state comptroller. 2. (a) There is hereby established in the custody of the comptroller a special fund to be known as the school district state aid reserve fund. Within such fund, there is hereby established a special account for each school district which issues revenue anticipation notes pursuant to this act and elects to have established a school district state aid reserve account. (b) Notwithstanding any other law, such fund shall consist of state aid to local school districts, apportioned pursuant to section three thousand six hundred two of the education law, in amounts equal to the principal and interest of the revenue anticipation notes issued pursuant to this act by those school districts which have elected to have established a school district state aid reserve account. Such state aid shall be paid into such fund at any time that the state comptroller shall determine that the principal and interest on the revenue anticipation notes issued pursuant to this act by a school district which elected to have established a school district state aid reserve account equals one hundred per centum of the state aid payments remaining to be paid to such school district during the nineteen hundred eighty-five-eighty-six school year. (c) Revenues in any special account in the school district state aid reserve fund may be commingled with other moneys in such fund. All deposits of such revenues shall be secured by obligations of the United States or of the state. Such obligations shall have a market value equal at all times to the amount of such deposits. All banks and trust companies are authorized to give security for such deposits. Any such revenues in such fund may, in the descretion of the comptroller, be invested in obligations of the United States or the state or in obligations the principal of and interest on which are guaranteed by the United States or by the state. (d) Upon receipt by the comptroller of a certificate or certificates from the superintendent of the school district that such school district requires a payment or payments in order to comply with any agreement with the holders of revenue anticipation notes issued pursuant to this act from the appropriate special account established for such school district, each of which certificates shall specify the required payment or pay payments and the date when the payment or payments is required, the comptroller shall pay from such special account on or before the specified date or within thirty days after receipt of such certificate or certificates, whichever, is later, to the paying agent designated by the superintendent of such school district in any such certificate, the amount or amounts so certified. In no event shall the comptroller over and distribute any excess revenues in such account to such school district unless and until the aggregate of all payments certified to the comptroller as required by such school district as of such date in order to comply with its agreements with the holders of revenue anticipation notes issued pursuant to this act, shall have been paid in full; provided, however, that no person, including such school district or the holders of revenue anticipation notes issued pursuant to this act, shall have any lien on such revenues and such agreement shall be executory only to the extent of such revenues available to the state in such special account. (e) All payments of moneys from the school district state aid reserve fund shall be made on the audit and warrant of the state comptroller. § 6. If a school district determines that it is unable to sell the revenue anticipation notes authorized under section four of this act at reasonable interest rates after having made a good faith effort to sell such notes secured by a school district state aid reserve account, the school district may request the comptroller to purchase such notes pursuant to section ninety-eight-a of the state finance law. Upon receipt of any such request, the comptroller shall review the determination of the school district and in connection therewith, may request any documentation he deems necessary. If he finds that the school district is unable to sell the revenue anticipation notes at reasonable interest rates after having made a good faith effort to sell such notes secured by a school district state aid reserve account, he shall purchase such So in original. (Word misspelled.) EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law |