S T A T E O F N E W Y O R K
________________________________________________________________________
3893
2009-2010 Regular Sessions
I N S E N A T E
April 2, 2009
___________
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Cities
AN ACT to amend the administrative code of the city of New York, in
relation to the powers, duties and responsibilities of the board of
trustees of the New York city fire department pension fund, subchapter
two and in relation to authorizing such board of trustees to draw upon
the assets of such pension fund to pay expenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision a of section 13-316 of the administrative code
of the city of New York, paragraph 11 as added by chapter 583 of the
laws of 1989, is amended to read as follows:
a. A board of trustees shall be the head of the New York fire depart-
ment pension fund subchapter two, and, subject to the provisions of law
[and to the prior approval of the board of estimate], from time to time
shall establish rules and regulations for the administration and trans-
action of the business of such fund and for the control and disposition
thereof. THE PROVISIONS OF SECTIONS ONE THOUSAND FORTY-TWO, ONE THOU-
SAND FORTY-THREE, ONE THOUSAND FORTY-FOUR AND ONE THOUSAND FORTY-FIVE OF
THE NEW YORK CITY CHARTER SHALL NOT BE CONSTRUED TO APPLY TO THE
ADOPTION OF SUCH RULES AND REGULATIONS. Such board shall consist of:
1. The fire commissioner who shall be chairperson of the board and who
shall be entitled to cast three votes.
2. The comptroller of the city who shall be entitled to cast three
votes.
3. A representative of the mayor who shall be appointed by the mayor
and who shall be entitled to cast three votes.
4. The commissioner of finance of the city who shall be entitled to
cast three votes.
5. The president of the uniformed firefighters' association of greater
New York who shall be entitled to cast two votes.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10016-01-9
S. 3893 2
6. The vice-president of the uniformed firefighters' association of
greater New York who shall be entitled to cast two votes.
7. The treasurer of the uniformed firefighters' association of greater
New York who shall be entitled to cast two votes.
8. The chairperson of the board of trustees of the uniformed fire-
fighters' association of greater New York who shall be entitled to cast
two votes.
9. Three elected members of the executive board of the uniformed fire
officers' association of the fire department, city of New York, of whom
one shall be an officer of the said department with rank above that of
captain and shall be entitled to cast one vote; another shall be a
captain of the said department and shall be entitled to cast one vote;
another shall be a lieutenant of the said department and shall be enti-
tled to cast one and one-half votes.
10. The president of the uniformed pilots and marine engineers associ-
ation, fire department, city of New York, who shall be entitled to cast
one-half vote.
11. (i) Where, during any six-month period during a fiscal year, as
defined in subdivision three of section 13-382 of the code, the equity
portion of the assets of the pension fund is less than forty-five
percent, subparagraph (ii) of this paragraph [eleven] shall be effective
during the succeeding fiscal year.
(ii) Two investment representatives, one of whom shall be appointed by
the mayor and one of whom shall be appointed by the comptroller upon the
occurrence of the condition specified in subparagraph (i) of this para-
graph [eleven]. Each such representative shall be entitled to cast two
votes only in relation to determinations of the board:
(A) as to whether the assets of the pension fund shall be invested in
equities or fixed income securities and the proportion of the assets of
the pension fund to be invested in equities and fixed income securities;
and
(B) as to the identity, nature, character and amounts of the equities
(within the proportion as determined under item (A) of this subpara-
graph) to be acquired, held, sold, disposed of or otherwise dealt with
by the pension fund; and
(C) as to any steps necessary to effectuate any of the functions set
forth in items (A) and (B) of this subparagraph; and
(D) as to delegation by the board, pursuant to law, of the functions
described in items (A), (B) and (C) of this subparagraph.
S 2. Subdivision b of section 13-316 of the administrative code of the
city of New York, as amended by chapter 583 of the laws of 1989, is
amended to read as follows:
b. Subject to the provisions of subdivision b-1 AND SUBDIVISION F of
this section, every act of the board of trustees shall be by resolution
which shall be adopted only by a vote of at least seven-twelfths of the
whole number of votes authorized to be cast by all of the members of
such board.
S 3. Subdivision c of section 13-316 of the administrative code of the
city of New York is amended to read as follows:
c. The [fire commissioner shall assign to the] board of trustees [a
sufficient number of clerical and other assistants to permit the board
efficiently to exercise their powers and to perform their duties] SHALL
APPOINT AN EXECUTIVE DIRECTOR OF THE PENSION FUND, WHO SHALL PERFORM
SUCH DUTIES AS MAY BE CONFERRED UPON HIM OR HER BY THE CHAIRPERSON OF
THE BOARD, BY RESOLUTION PASSED BY THE BOARD, OR BY LAW.
S. 3893 3
S 4. Section 13-316 of the administrative code of the city of New York
is amended by adding five new subdivisions e, f, g, h and i to read as
follows:
E. 1. IN ADDITION TO THE POWERS CONFERRED UPON IT BY ANY OTHER
PROVISION OF LAW, THE BOARD OF TRUSTEES SHALL, ON OR BEFORE APRIL FIRST
OF EACH YEAR, ESTABLISH A BUDGET SUFFICIENT TO FULFILL THE POWERS,
DUTIES AND RESPONSIBILITIES SET FORTH IN THIS CHAPTER AND ANY OTHER
PROVISION OF LAW WHICH SETS FORTH THE BENEFITS OF MEMBERS OF THE PENSION
FUND AND MAY DRAW UPON THE ASSETS OF THE PENSION FUND TO FUND SUCH BUDG-
ET, SUBJECT TO THE PROVISIONS OF PARAGRAPHS TWO, THREE, FOUR, FIVE AND
SIX OF THIS SUBDIVISION AND SUBDIVISIONS F, G, H AND I OF THIS SECTION.
THE PROVISIONS OF THIS SECTION SHALL NOT BE APPLICABLE TO THE PAYMENT OF
INVESTMENT EXPENSES PURSUANT TO SECTION 13-705 OF THIS TITLE, AND NOTH-
ING CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS ABOLISHING, LIMITING
OR MODIFYING ANY POWER OF THE BOARD OF TRUSTEES TO PROVIDE FOR THE
PAYMENT OF INVESTMENT EXPENSES PURSUANT TO SECTION 13-705 OF THIS TITLE.
2. IF A BUDGET HAS NOT BEEN ADOPTED BY THE COMMENCEMENT OF THE NEW
FISCAL YEAR, THE BUDGET FOR THE PRECEDING FISCAL YEAR SHALL BE DEEMED TO
HAVE BEEN EXTENDED FOR THE NEW FISCAL YEAR UNTIL SUCH TIME AS A NEW
BUDGET IS ADOPTED.
3. ANY BUDGET IN EFFECT PURSUANT TO PARAGRAPH ONE OR TWO OF THIS
SUBDIVISION MAY BE MODIFIED DURING SUCH SUCCEEDING FISCAL YEAR.
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE BOARD OF TRUSTEES
SHALL HAVE THE POWER, EITHER DIRECTLY OR BY DELEGATION TO THE EXECUTIVE
DIRECTOR, TO OBTAIN BY EMPLOYMENT OR BY CONTRACT THE GOODS, PROPERTY AND
SERVICES NECESSARY TO FULFILL ITS POWERS, DUTIES AND RESPONSIBILITIES
WITHIN THE APPROPRIATION AUTHORIZED BY THE BOARD OF TRUSTEES PURSUANT TO
PARAGRAPH ONE OF THIS SUBDIVISION.
5. (I) THE PENSION FUND SHALL BE CONSIDERED AN ENTITY SEPARATE FROM
THE FIRE DEPARTMENT OF THE CITY OF NEW YORK.
(II) THE PROVISIONS OF CHAPTER SEVENTEEN OF THE NEW YORK CITY CHARTER
SHALL CONTINUE TO APPLY TO THE PENSION FUND AND THE PENSION FUND SHALL
CONSTITUTE AN AGENCY FOR THE PURPOSES OF SUCH CHAPTER. THE BOARD OF
TRUSTEES SHALL NOT OBTAIN ANY LEGAL SERVICES BY THE RETENTION OF EMPLOY-
EES OR BY CONTRACT UNLESS THE CORPORATION COUNSEL SHALL CONSENT THERETO.
6. ALL CONTRACTS FOR GOODS OR SERVICES ENTERED INTO BY THE PENSION
FUND SHALL BE PROCURED AS PRESCRIBED IN CHAPTER THIRTEEN OF THE NEW YORK
CITY CHARTER; PROVIDED, HOWEVER, THAT WHERE THE PROVISIONS OF SUCH CHAP-
TER THIRTEEN REQUIRE ACTION BY THE MAYOR OR AN APPOINTEE OF THE MAYOR IN
REGARD TO A PARTICULAR PROCUREMENT (EXCEPT FOR MAYORAL ACTION PURSUANT
TO SUBDIVISION C OF SECTION THREE HUNDRED THIRTY-FOUR OF THE NEW YORK
CITY CHARTER) SUCH ACTION SHALL NOT BE TAKEN BY THE MAYOR OR SUCH
APPOINTEE OF THE MAYOR, BUT SHALL BE TAKEN BY THE BOARD OF TRUSTEES OR
THE EXECUTIVE DIRECTOR PURSUANT TO A RESOLUTION ADOPTED BY THE BOARD OF
TRUSTEES DELEGATING SUCH AUTHORITY TO THE EXECUTIVE DIRECTOR.
F. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, ANY RESOLUTION
OF THE BOARD OF TRUSTEES WHICH ESTABLISHES A BUDGET OR MODIFIES A BUDGET
PURSUANT TO THE PROVISIONS OF PARAGRAPH ONE OR THREE OF SUBDIVISION E OF
THIS SECTION SHALL REQUIRE THE CONCURRENCE OF THE COMPTROLLER AND THE
REPRESENTATIVE OF THE MAYOR. THIS PROVISION SHALL APPLY ONLY TO THIS
SUBDIVISION, AND NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE
CONSTRUED TO APPLY TO ANY OTHER VOTE OF THE BOARD. NO ASSETS OF THE
PENSION FUND SHALL BE DRAWN UPON PURSUANT TO THE PROVISIONS OF PARAGRAPH
ONE OF SUBDIVISION E OF THIS SECTION UNLESS AUTHORIZED BY A BUDGET OR
BUDGET MODIFICATION ESTABLISHED BY A RESOLUTION OF THE BOARD OF TRUS-
TEES.
S. 3893 4
G. EMPLOYMENT BY THE PENSION FUND SHALL CONSTITUTE CITY-SERVICE FOR
THE PURPOSES OF THIS SUBCHAPTER FOR THOSE EMPLOYEES WHO ARE MEMBERS OF
THE FUND PURSUANT TO SECTION 13-314 OF THIS SUBCHAPTER; FOR ALL OTHER
EMPLOYEES, EMPLOYMENT BY THE PENSION FUND SHALL CONSTITUTE CITY-SERVICE
FOR THE PURPOSES OF CHAPTER ONE OF THIS TITLE; PROVIDED, HOWEVER, THAT
NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED AS GRANTING
MEMBERSHIP RIGHTS IN THE PENSION FUND OR ANY RETIREMENT SYSTEM TO A
CONTRACTOR OF THE PENSION FUND OR SUCH CONTRACTOR'S EMPLOYEES. EMPLOYEES
OF THE PENSION FUND SHALL BE DEEMED TO BE EMPLOYEES OF THE CITY OF NEW
YORK FOR THE PURPOSES OF CHAPTER THIRTY-FIVE OF THE NEW YORK CITY CHAR-
TER AND TITLE TWELVE OF THE CODE.
H. WHENEVER THE ASSETS OF THE PENSION FUND ARE DRAWN UPON PURSUANT TO
THE PROVISIONS OF PARAGRAPH ONE OF SUBDIVISION E OF THIS SECTION, ALL
MONIES SO WITHDRAWN SHALL BE MADE A CHARGE TO BE PAID BY THE EMPLOYER
OTHERWISE REQUIRED TO MAKE CONTRIBUTIONS TO THE PENSION FUND NO LATER
THAN THE END OF THE SECOND FISCAL YEAR SUCCEEDING THE TIME PERIOD DURING
WHICH SUCH ASSETS WERE DRAWN UPON. THE ACTUARY SHALL CALCULATE SUCH
CHARGE TO BE PAID BY THE EMPLOYER. ALL CHARGES TO BE PAID PURSUANT TO
THIS SUBDIVISION SHALL BE PAID AT THE REGULAR RATE OF INTEREST UTILIZED
BY THE ACTUARY IN DETERMINING EMPLOYER CONTRIBUTIONS TO THE PENSION FUND
PURSUANT TO THE PROVISIONS OF PARAGRAPH TWO OF SUBDIVISION B OF SECTION
13-638.2 OF THIS TITLE.
I. THE FUNDS WITHDRAWN FROM THE PENSION FUND SHALL NOT BE UTILIZED FOR
ANY PURPOSE OTHER THAN THE BUDGET ESTABLISHED BY THE BOARD OF TRUSTEES.
ALL EXPENDITURES OF THE PENSION FUND SHALL BE SUBJECT TO AUDIT BY THE
COMPTROLLER, WHO MAY MAKE RECOMMENDATIONS, INCLUDING BUT NOT LIMITED TO,
PROCEDURES DESIGNED TO IMPROVE ACCOUNTING AND EXPENDITURE CONTROL. ALL
EXPENDITURES OF THE PENSION FUND SHALL BE REPORTED TO THE MAYOR'S OFFICE
OF MANAGEMENT AND BUDGET AND THE BUDGETARY OFFICE OF THE FIRE DEPARTMENT
OF THE CITY OF NEW YORK.
S 5. Except as specified in this act, nothing contained in such act
shall affect or impair the rights or privileges of officers or employees
of the fire department pension fund, subchapter two in relation to the
personnel, appointment, ranks, grades, length of service, promotion,
removal, pension and retirement rights, civil rights or any other rights
or privileges of officers or employees of the city generally or officers
or employees of such fund.
S 6. In the event that any provision of this act shall be adjudged to
be invalid or unconstitutional on its face or in its application to any
person or circumstances by a court of competent jurisdiction, after all
rights to appeal have been exhausted, such judgment shall not affect,
impair or invalidate the remainder of this act, but shall be confined in
its operation to the provision of such section directly involved in the
controversy in which judgment shall have been rendered.
S 7. This act shall take effect immediately; provided, however, that
the provisions of this act authorizing the adoption of a budget and the
use of the assets of the fire department pension fund to pay expenses
may be utilized during the fiscal year commencing on July 1, 2009, and
provided further that in such event, such budget shall be deemed to have
been established on April 1, 2009.
