Senate Bill S4279

2013-2014 Legislative Session

Authorizes the state and certain local governments to establish other post employment benefits (OPEB) trusts

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Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to finance
Mar 19, 2013	referred to finance

2013-S4279 (ACTIVE) - Details

See Assembly Version of this Bill:: A3636
Current Committee:: Senate Finance
Law Section:: State Finance Law
Laws Affected:: Add §97-llll, St Fin L; add §169, Civ Serv L; add §6-t, amd §6-p, Gen Muni L

2013-S4279 (ACTIVE) - Summary

Authorizes the state and certain local governments to establish other post employment benefits (OPEB) trusts; establishes the other post employment benefits (OPEB) investment fund.

2013-S4279 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4279

TITLE OF BILL:  An act to amend the state finance law, the civil
service law and the general municipal law, in relation to authorizing
the state and certain local governments to establish other post
employment benefits (OPEB) trusts and establishing the other post
employment benefits (OPEB) investment fund

PURPOSE:

To provide the State and certain local governments with the authority
to establish trusts in which to accumulate assets for other
post-employment benefits (OPEB) and to establish an OPEB investment
fund in the sole custody of the State Comptroller for the investment
of OPEB assets of the State and participating eligible local
governments and other public corporations.

SUMMARY OF PROVISIONS:

Section one of the bill would amend State Finance Law by adding a new
State Finance Law § 97-1111 to establish an OPEB investment fund in
the sole custody of the State Comptroller for the investment of OPEB
assets of the State and participating eligible local governments.

Section two of the bill would amend Civil Service Law by adding a new
Civil Service Law § 169 to authorize the establishment of a State OPEB

trust in the custody of the president of the Civil Service Commission.
"Other post employment benefits?' would be defined to mean benefits,
except pensions or other benefits funded through a public retirement
system, provided or to be provided by the State to its officers,
employees, or their families or beneficiaries, after service to the
government ends, including health care benefits. The President of the
Civil Service Commission would be declared to be the trustee.

Section three of the bill would amend General Municipal Law by adding
a new General Municipal Law § 6-t to authorize governing boards of
local governments, by resolution, to establish trusts for the purpose
of accumulating assets to fund "other post-employment benefit. The
governing board would be declared to be the trustee, but would be
authorized, by resolution, to designate the chief fiscal officer of
the local government, with his or her consent, as trustee.

The trusts would be irrevocable before all liabilities for other post
employment benefits have been satisfied and would be dedicated solely
to, and used solely for, providing such benefits and paying
appropriate and reasonable administrative expenses. No mist assets
would be subject to any claim of creditors of the local government.
Bill section three authorizes investment of trust assets in the "Other
Post Employment Benefits Investment Fund" in the custody of the State
Comptroller, which would be established in section one of the bill.

The trustee would be required to prepare or cause to be prepared an
annual financial report of assets, liabilities, revenues and expenses
of the trust, and cause the activities of the trust to be audited,
either separately or as part of the overall audit of the reporting
entity. The State Comptroller, in his or her discretion, would be
given express authority to promulgate regulations for the proper


operation and management of trusts established pursuant to new General
Municipal Law § 6-t.

Finally, the bill would expressly make clear that it is intended only
to provide a mechanism to accumulate assets should a local government
choose to fund its liability for other post employment benefits. It
would state that nothing in new section 6-t shall be construed or
interpreted to (1) create any obligation in, impose any obligation on,
or alter any obligation of any local government to provide other post
employment benefits, (2) limit or restrict the authority of a local
government to modify or eliminate other post employment benefits, (3)
assure or deny other post employment benefits, or (4) require any
local government to fund its liability for other post employment
benefits.

Section four of this bill amends Subdivision 9 of Section 6-p of the
General Municipal Law to allow school districts to transfer excess
reserve balances to an "other post-employment benefits" (OPEB) trust
once it is established.

Section five of the bill would ensure the validity of the
establishment and implementation of the New York City Retiree Health
Benefit Trust, established June 12, 2006 by the City of New York as
Grantor, and make clear that neither the operation nor any amendment
of such trust would be subject to General Municipal Law § 6-t. It
would further expressly ratify the establishment of such New York
City's trust and its operation in accordance with its terms.

Section six of the bill would make the bill effective immediately.

PRIOR LEGISLATIVE HISTORY:

S. 7534 (Passed Senate)and A. 11038 of 2010.

JUSTIFICATION:

In June 2004, the Governmental Accounting Standards Board, a national
body that sets the standards for governmental accounting and
reporting, issued a statement known as GASB 45, establishing
accounting and reporting standards for "other post-employment
benefits" (OPEB) offered by state and local governments. OPEB are
employee benefits except pensions or other benefits funded through a
public retirement system that are received after service has ended.
Generally, GASB 45 applies to all public entities (including state
governments; county, city, town and village governments; and school
districts) that follow GAAP (Generally Accepted Accounting Principles)
in filing their annual financial statements and offer other
post-employment benefits. In New York State, it is estimated that
about one-quarter of local governments and most school districts will
be required to comply. GASB 45 will require covered state and local
governments nationwide to report liabilities for OPEB similarly to the
way they report pension liabilities. While GASB 45 does not require
governments to fund these benefits, they must begin to report them in
their financial statements.

More than one million New Yorkers rely on post employment benefits for
their health care. Over time, the "pay-as-you-go" method currently


followed by most public entities will become increasingly expensive.
The State Comptroller, as the chief fiscal officer for the State, has
determined that the fiscally responsible and prudent approach is to
start preparing for the future in order to protect these health care
benefits for New Yorkers. Governments should develop plans to address
these costs: and a government which puts aside funds in a trust
established for this purpose can substantially cut its long-term OPEB
liabilities.

This legislative proposal would provide express statutory authority
for the creation of OPEB trusts for New York State and its local
governments to provide a mechanism to accumulate funds for OPEB costs,
should the State or local government decide to fund these liabilities.

Local government trustees are authorized to invest OPEB assets in the
State-administered investment fund. The bill makes clear that it
establishes no requirement to fund OPEB liabilities. It merely creates
the framework for the creation, operation and management of OPEB
trusts for those governments choosing to do so. Likewise, the bill
makes clear that these new provisions would not create, modify, limit
or restrict any obligation to provide OPEB.

Although GASB does not require the funding of OPEB liabilities, GASB
has indicated that, in order to be considered funded in accordance
with GASB, the employer must transfer assets to a "qualifying trust or
equivalent arrangement" in which OPEB assets are held in trust for the
exclusive benefit of plan members and their beneficiaries in
accordance with the terms of the OPEB plan. These OPEB plan assets
must be legally protected from creditors of the employer. The
construct of the trusts authorized by this bill is intended to be
consistent with the "staff guidance" provided by GASB in this regard.

The local governing board (or by delegation its chief fiscal officer)
would be the trustee of any locally-established OPEB trust. The
Commissioner of Civil Service would be the sole trustee of the State's
OPEB trust, who would be authorized to manage the trust and invest
assets in the OPEB investment fund. The State Comptroller would be the
sole custodian of the OPEB investment fund and would manage the assets
of the fund; OSC would be authorized to contract for administrative
services of the fund.

Contributions into OPEB trusts would be made at the option of the
State and local employers and would be irrevocable before all OPEB
liabilities have been satisfied; assets of such trusts could be used
only for OPEB liabilities and proper expenses of the trust, and would
be protected from the creditors of the sponsoring governments. The
trusts may be terminated only when all OPEB liabilities have been
satisfied and there is no present or future obligation, contingent or
otherwise, to provide OPEB.

The State-administered OPEB investment fund would be separate and
distinct from the Common Retirement Fund. Assets of the fund would be
invested pursuant to prudent person investment guidelines, and
investors would be provided with several investment options. Separate
accounts would be established for the State and any participating
local governments, but amounts would be commingled for investment
purposes. Actuarial assumptions and amounts of contributions would be


determined by individual participating local governments, and
withdrawals would be scheduled by participating local governments.
Administrative costs of the investment fund would be charged against
the fund and supported by an administrative fee charged to
participants.

New York City, has already begun funding its OPEB liabilities and the
bill "grandfathers in" the New York City Retiree Health Benefit Trust,
established June 12, 2006. The City and the State would be granted
broader investment authority consistent with their management of their
respective pension funds.

The Comptroller urges passage of this legislation.

BUDGET IMPLICATIONS:

This bill has no significant fiscal impact.

EFFECTIVE DATE:

This bill would take effect immediately.

2013-S4279 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4279

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             March 19, 2013
                               ___________

Introduced  by  Sen. MARTINS -- (at request of the State Comptroller) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Finance

AN  ACT  to  amend  the state finance law, the civil service law and the
  general municipal law,  in  relation  to  authorizing  the  state  and
  certain  local governments to establish other post employment benefits
  (OPEB) trusts and establishing  the  other  post  employment  benefits
  (OPEB) investment fund

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The state finance law is amended by adding  a  new  section
97-llll to read as follows:
  S 97-LLLL. OTHER POST EMPLOYMENT BENEFITS ("OPEB") INVESTMENT FUND. 1.
THERE IS HEREBY ESTABLISHED IN THE SOLE CUSTODY OF THE STATE COMPTROLLER
A SPECIAL INVESTMENT FUND TO BE KNOWN AS THE OTHER POST EMPLOYMENT BENE-
FITS INVESTMENT FUND.
  2. FOR PURPOSES OF THIS SECTION:
  (A)  "FUND"  SHALL  MEAN THE OTHER POST EMPLOYMENT BENEFITS INVESTMENT
FUND CREATED BY THIS SECTION;
  (B) "COMPTROLLER" SHALL MEAN THE STATE COMPTROLLER;
  (C) "STATE" SHALL MEAN THE STATE OF NEW YORK;
  (D) "LOCAL GOVERNMENT" SHALL HAVE THE SAME MEANING  AS  SET  FORTH  IN
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION SIX-T OF THE GENERAL MUNICI-
PAL LAW;
  (E) "OTHER PUBLIC CORPORATION" SHALL MEAN ANY PUBLIC CORPORATION OTHER
THAN  A  LOCAL GOVERNMENT THAT IS AUTHORIZED TO ESTABLISH AN IRREVOCABLE
TRUST; AND
  (F) "PARTICIPATING TRUSTEE" SHALL MEAN THE TRUSTEE FOR THE STATE,  AND
THE  TRUSTEE  FOR  ANY  LOCAL GOVERNMENT OR ANY OTHER PUBLIC CORPORATION
THAT INVESTS MONEYS IN THE FUND PURSUANT TO THIS SECTION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04651-02-3

S. 4279                             2

  3. THE FUND SHALL CONSIST OF ALL MONEYS PAID TO THE COMPTROLLER BY THE
STATE PURSUANT TO SECTION ONE HUNDRED SIXTY-NINE OF  THE  CIVIL  SERVICE
LAW,  BY  LOCAL  GOVERNMENTS  PURSUANT  TO  SECTION SIX-T OF THE GENERAL
MUNICIPAL LAW AND BY ANY OTHER PUBLIC CORPORATION  THAT  ESTABLISHES  AN
OTHER  POST  EMPLOYMENT BENEFITS TRUST. THE MONEYS IN THE FUND SHALL NOT
BE WITHIN THE STATE TREASURY, AND SHALL NOT BE DEEMED TO BE STATE  FUNDS
FOR  ANY PURPOSE. NOTWITHSTANDING THE PROVISIONS OF SECTION FOUR OF THIS
CHAPTER, OR ANY OTHER PROVISION OF LAW, MONEYS MAY BE DISBURSED FROM THE
FUND FOR ANY AUTHORIZED PURPOSE WITHOUT APPROPRIATION.
  4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE MONEYS IN THE  FUND
MAY  BE  INVESTED  BY  THE COMPTROLLER IN ACCORDANCE WITH THE INVESTMENT
OPTIONS SELECTED PURSUANT TO THE WRITTEN INVESTMENT POLICY DEVELOPED  BY
EACH  PARTICIPATING  TRUSTEE  IN  ANY INVESTMENTS IN COMPLIANCE WITH THE
FOLLOWING STANDARDS:
  (A)  THE  COMPTROLLER  SHALL  EXERCISE  SUCH  JUDGMENT,  CARE,  SKILL,
PRUDENCE  AND  DILIGENCE  UNDER THE CIRCUMSTANCES THEN PREVAILING THAT A
KNOWLEDGEABLE AND PRUDENT INVESTOR ACTING IN A LIKE CAPACITY AND  FAMIL-
IAR  WITH  SUCH  MATTERS  WOULD USE IN THE CONDUCT OF AN ENTERPRISE OF A
LIKE CHARACTER AND WITH LIKE AIMS; AND
  (B) THE COMPTROLLER SHALL PRUDENTLY DIVERSIFY THE  INVESTMENT  OF  THE
FUND'S PORTFOLIO AMONG INVESTMENT TYPES AND WITHIN INVESTMENT TYPES IN A
MANNER  CONSISTENT  WITH THE FOREGOING UNLESS UNDER THE CIRCUMSTANCES IT
IS CLEARLY PRUDENT NOT TO DO SO.
  5. THE COMPTROLLER SHALL MAINTAIN A SEPARATE ACCOUNT FOR EACH  PARTIC-
IPATING  TRUSTEE.  HOWEVER,  MONEYS  OF  PARTICIPATING  TRUSTEES  MAY BE
COMMINGLED FOR THE COMPTROLLER'S INVESTMENT PURPOSES, PROVIDED THAT  THE
MONEY OF EACH PARTICIPATING TRUSTEE SHALL BE SEPARATELY ACCOUNTED FOR.
  6.  THE  COMPTROLLER  SHALL,  WITHIN  HIS OR HER DISCRETION, ESTABLISH
SUB-FUNDS AND INVEST SUCH SUB-FUNDS SEPARATELY TO PROVIDE  PARTICIPATING
TRUSTEES WITH A NUMBER OF OPTIONS TO MEET VARIOUS INVESTMENT OBJECTIVES.
SUCH  OPTIONS  SHALL REFLECT VARYING LEVELS OF RISK FOR SUCH INVESTMENT.
INVESTMENT EARNINGS SHALL BE PRORATED AMONG  PARTICIPATING  TRUSTEES  IN
EACH SUB-FUND IN PROPORTION TO THE AMOUNT OF INVESTMENTS HELD BY PARTIC-
IPATING TRUSTEES.
  7.  THE  COMPTROLLER MAY HIRE SUCH OFFICERS AND EMPLOYEES AND CONTRACT
WITH SUCH ADVISORS AND AGENTS AS THE COMPTROLLER DEEMS NECESSARY FOR THE
MANAGEMENT AND INVESTMENT OF  MONEYS  IN  THE  FUND.  ANY  OFFICERS  AND
EMPLOYEES  EMPLOYED BY THE COMPTROLLER FOR THE MANAGEMENT AND INVESTMENT
OF MONEYS IN THE FUND SHALL BE  OFFICERS  AND  EMPLOYEES  OF  THE  COMP-
TROLLER,  PROVIDED,  HOWEVER, THAT ANY COSTS ASSOCIATED WITH THE EMPLOY-
MENT OF SUCH OFFICERS AND EMPLOYEES AND ANY ADVISORS OR AGENTS SHALL  BE
CHARGED AGAINST THE FUND. SUCH CHARGES SHALL BE INCLUDED IN THE ADMINIS-
TRATIVE FEE CHARGED TO PARTICIPATING TRUSTEES IN THE FUND.
  8. THE COMPTROLLER SHALL ENTER INTO AN AGREEMENT WITH EACH PARTICIPAT-
ING  TRUSTEE.  EACH SUCH AGREEMENT SHALL INCLUDE, BUT NOT BE LIMITED TO,
THE FOLLOWING TERMS:
  (A) A STATEMENT THAT THE COMPTROLLER SHALL BE UNDER NO  OBLIGATION  TO
REVIEW OR VERIFY THE ESTIMATED COSTS OF BENEFITS TO BE FUNDED WITH MONEY
CONTRIBUTED TO THE FUND;
  (B)  A  PROVISION  THAT  THE PARTICIPATING TRUSTEE SHALL DETERMINE THE
AMOUNTS OF MONEY TO  BE  CONTRIBUTED  TO  THE  FUND  AND  DESIGNATE  THE
SUB-FUNDS  IN  WHICH THE MONEYS SHALL BE INVESTED. THE COMPTROLLER SHALL
ACCEPT SUCH AMOUNTS AND HIS OR  HER  ONLY  RESPONSIBILITY  SHALL  BE  TO
INVEST THE MONEYS IN THE SUB-FUNDS DIRECTED BY THE PARTICIPATING TRUSTEE
AND  TO REPORT THE CONTRIBUTIONS, WITHDRAWALS, BALANCES AND EARNINGS, TO

S. 4279                             3

THE PARTICIPATING TRUSTEE ON A REGULAR BASIS TO  BE  SET  FORTH  IN  THE
AGREEMENT, BUT NO LESS FREQUENTLY THAN ANNUALLY;
  (C) A STATEMENT THAT IT SHALL BE THE RESPONSIBILITY OF THE PARTICIPAT-
ING  TRUSTEE TO DETERMINE COSTS ELIGIBLE TO BE FUNDED FROM MONEYS IN THE
FUND AND THE COMPTROLLER'S ONLY OBLIGATION SHALL BE TO MAKE PAYMENTS  ON
THE DATES AND IN THE AMOUNTS REQUESTED BY THE PARTICIPATING TRUSTEE;
  (D)  A REQUIREMENT THAT THE PARTICIPATING TRUSTEE SHALL ANNUALLY, ON A
DATE PROVIDED IN THE AGREEMENT, PROVIDE THE COMPTROLLER WITH A  SCHEDULE
OR AMENDED SCHEDULE OF MONEYS EXPECTED TO BE CONTRIBUTED TO THE FUND AND
WITHDRAWALS EXPECTED TO BE MADE FROM ITS ACCOUNT. SUCH SCHEDULE SHALL BE
BINDING ON THE PARTICIPATING TRUSTEE;
  (E)  A  PROVISION  THAT  THE  MONEY  IN  THE FUND SHALL BE PAID TO THE
PARTICIPATING TRUSTEE OR ITS DESIGNEE UPON REQUISITION  AS  PROVIDED  IN
THE AGREEMENT;
  (F) A PROVISION FOR THE ASSESSMENT OF ADMINISTRATIVE COSTS, INVESTMENT
FEES  AND OTHER CHARGES, INCLUDING ANY PENALTIES TO BE IMPOSED FOR EARLY
OR EXCESSIVE WITHDRAWALS, AND FOR THE DEDUCTION OF SUCH FEES AND CHARGES
FROM INVESTMENT EARNINGS;
  (G) A STATEMENT BY THE PARTICIPATING TRUSTEE RELATING TO ITS CONSIDER-
ATION OF THE RISKS INVOLVED IN THE INVESTMENT SUB-FUNDS TO WHICH  IT  IS
ALLOCATING  ITS  MONEYS  AND ITS UNDERSTANDING OF ITS RESPONSIBILITY FOR
ANY LOSSES RESULTING FROM SUCH RISKS;
  (H) A STATEMENT THAT NEITHER THE COMPTROLLER NOR ANY OFFICER,  EMPLOY-
EE,  AGENT OR ADVISOR OF THE COMPTROLLER SHALL BE LIABLE FOR ANY LOSS OR
EXPENSE SUFFERED BY THE FUND  IN  THE  ABSENCE  OF  BAD  FAITH,  WILLFUL
MISCONDUCT OR INTENTIONAL WRONGDOING; AND
  (I)  A  PROVISION  FOR  THE TERMINATION OF THE PARTICIPATING TRUSTEE'S
INCLUSION IN THE FUND, INCLUDING  THE  DISPOSITION  AND/OR  TRANSFER  OF
ACCUMULATED ASSETS.
  S  2.  The civil service law is amended by adding a new section 169 to
read as follows:
  S 169. OTHER POST EMPLOYMENT BENEFITS ("OPEB") TRUST. 1. FOR  PURPOSES
OF THIS SECTION:
  (A)  "PRESIDENT" SHALL MEAN THE PRESIDENT OF THE CIVIL SERVICE COMMIS-
SION AS HEAD OF THE DEPARTMENT OF CIVIL SERVICE;
  (B) "STATE" SHALL MEAN THE STATE OF NEW YORK;
  (C) "FUND" SHALL MEAN THE OTHER POST  EMPLOYMENT  BENEFITS  INVESTMENT
FUND CREATED BY SECTION NINETY-SEVEN-LLLL OF THE STATE FINANCE LAW; AND
  (D)  "OTHER  POST  EMPLOYMENT  BENEFITS"  SHALL  MEAN BENEFITS, EXCEPT
PENSIONS OR OTHER BENEFITS FUNDED THROUGH A  PUBLIC  RETIREMENT  SYSTEM,
PROVIDED  OR TO BE PROVIDED BY THE STATE AS COMPENSATION, WHETHER PURSU-
ANT TO STATUTE, CONTRACT OR OTHER LAWFUL AUTHORITY, TO  ITS  CURRENT  OR
FORMER  OFFICERS OR EMPLOYEES, OR THEIR FAMILIES OR BENEFICIARIES, AFTER
SERVICE TO THE STATE HAS ENDED, INCLUDING, BUT NOT  LIMITED  TO,  HEALTH
CARE  BENEFITS.  THE  TERM  "OTHER  POST  EMPLOYMENT BENEFITS" SHALL NOT
INCLUDE CASH PAYMENTS FOR THE MONETARY VALUE OF SICK LEAVE, VACATION  OR
OTHER  SIMILAR ACCRUALS, RETIREMENT INCENTIVE OR SEPARATION PAYMENTS, OR
BENEFITS PROVIDED PURSUANT TO THE CONSOLIDATED OMNIBUS BUDGET  RECONCIL-
IATION ACT OF 1985 (PUBLIC LAW 99-272), AS AMENDED.
  2.  THE  PRESIDENT MAY ESTABLISH A TRUST IN HIS OR HER CUSTODY FOR THE
PURPOSE OF ACCUMULATING ASSETS TO FUND THE COST OF PROVIDING OTHER  POST
EMPLOYMENT  BENEFITS.   CONTRIBUTIONS TO SUCH TRUST MAY BE MADE BY STATE
APPROPRIATION.
  3. THE PRESIDENT IS HEREBY DECLARED TO BE THE  TRUSTEE  OF  THE  TRUST
ESTABLISHED  PURSUANT TO THIS SECTION. AS TRUSTEE THE PRESIDENT SHALL BE
RESPONSIBLE FOR THE OPERATION AND MANAGEMENT OF THE TRUST, INCLUDING THE

S. 4279                             4

INVESTMENT OF TRUST ASSETS, AND SHALL BE SUBJECT TO ALL THE  DUTIES  AND
RESPONSIBILITIES IMPOSED BY LAW ON TRUSTEES, EXCEPT TO THE EXTENT INCON-
SISTENT WITH THIS SECTION.
  4.  CONTRIBUTIONS  TO  THE  TRUST, AND ANY INTEREST OR OTHER INCOME OR
EARNINGS ON CONTRIBUTIONS, SHALL BE IRREVOCABLE BEFORE  ALL  LIABILITIES
OF  THE  STATE  GOVERNMENT  FOR OTHER POST EMPLOYMENT BENEFITS HAVE BEEN
SATISFIED AND SHALL BE SOLELY DEDICATED TO, AND USED SOLELY FOR, PROVID-
ING OTHER POST EMPLOYMENT BENEFITS AND PAYING APPROPRIATE AND REASONABLE
EXPENSES OF ADMINISTERING THE TRUST.  NO  ASSETS,  INCOME,  EARNINGS  OR
DISTRIBUTIONS OF THE TRUST SHALL BE SUBJECT TO ANY CLAIM OF CREDITORS OF
THE  STATE, OR TO ASSIGNMENT OR EXECUTION, ATTACHMENT OR ANY OTHER CLAIM
ENFORCEMENT PROCESS INITIATED BY OR ON BEHALF OF SUCH CREDITORS.  EXCEPT
AS OTHERWISE PROVIDED IN SUBDIVISION NINE OF THIS SECTION, THE PRESIDENT
SHALL  NOT BE RESPONSIBLE FOR THE ADEQUACY OF THE ASSETS OF THE TRUST TO
MEET ANY OTHER POST EMPLOYMENT  BENEFIT.  THE  PRESIDENT  SHALL  NOT  BE
RESPONSIBLE  FOR  TAKING ANY ACTION TO ENFORCE THE PAYMENT OF ANY APPRO-
PRIATION INTO THE TRUST. THE TRUST  MAY  BE  TERMINATED  ONLY  WHEN  ALL
LIABILITIES  OF  THE  STATE FOR OTHER POST EMPLOYMENT BENEFITS HAVE BEEN
SATISFIED AND THERE IS NO PRESENT OR FUTURE  OBLIGATION,  CONTINGENT  OR
OTHERWISE,  OF THE STATE TO PROVIDE SUCH OTHER POST EMPLOYMENT BENEFITS.
UPON SUCH TERMINATION, ANY REMAINING  TRUST  ASSETS,  AFTER  ANY  PROPER
EXPENSES OF THE TRUST HAVE BEEN PAID, SHALL REVERT TO THE STATE.
  5.  WITHDRAWALS  FROM  THE TRUST SHALL BE MADE FOR THE SOLE PURPOSE OF
PROVIDING FUNDS FOR THE COSTS OF OTHER POST EMPLOYMENT BENEFITS CURRENT-
LY DUE AND PAYABLE BY THE STATE.
  6. THE PRESIDENT MAY CONTRACT TO OBTAIN  SERVICES  NECESSARY  FOR  THE
MANAGEMENT  AND  OPERATION  OF  THE  TRUST,  INCLUDING  THE PROFESSIONAL
SERVICES NECESSARY TO CARRY OUT HIS OR HER RESPONSIBILITIES AS  TRUSTEE.
CONTRACTS  FOR  SUCH SERVICES SHALL BE LET PURSUANT TO THE PROVISIONS OF
THE STATE FINANCE LAW APPLICABLE TO STATE CONTRACTS.
  7. THE PRESIDENT SHALL MANAGE THE ASSETS OF THE TRUST IN A CAREFUL AND
PRUDENT MANNER. THE PRESIDENT MAY INVEST ASSETS OF  THE  TRUST  ONLY  BY
PAYMENT  TO THE FUND IN ACCORDANCE WITH SECTION NINETY-SEVEN-LLLL OF THE
STATE FINANCE LAW.  ANY INTEREST OR OTHER INCOME OR  EARNINGS  RESULTING
FROM  THE  INVESTMENT  OF ASSETS OF THE TRUST SHALL ACCRUE TO AND BECOME
PART OF THE ASSETS OF THE TRUST.
  8. THE PRESIDENT SHALL DEVELOP, IN CONSULTATION WITH THE STATE  HEALTH
INSURANCE  COUNCIL,  A WRITTEN INVESTMENT POLICY FOR SELECTING AMONG THE
INVESTMENT OPTIONS OFFERED BY THE STATE COMPTROLLER PURSUANT TO  SECTION
NINETY-SEVEN-LLLL  OF  THE STATE FINANCE LAW SO THAT THE COMPTROLLER MAY
BE ABLE TO INVEST FUND MONIES IN ACCORDANCE  WITH  SUCH  POLICY.    SUCH
POLICY SHALL INCLUDE A STATEMENT OF INVESTMENT OBJECTIVES ADDRESSING, IN
THE FOLLOWING ORDER OF PRIORITY, THE ABILITY TO TIMELY MEET DISBURSEMENT
REQUESTS  WITHOUT FORCED SALE OF ASSETS, SAFETY OF PRINCIPAL AND ATTAIN-
MENT OF MARKET RATES OF RETURN.
  9. NEITHER THE STATE NOR THE PRESIDENT SHALL BE LIABLE FOR ANY LOSS OR
EXPENSE SUFFERED BY THE TRUST IN  THE  ABSENCE  OF  BAD  FAITH,  WILLFUL
MISCONDUCT  OR INTENTIONAL WRONGDOING. THE PRESIDENT SHALL BE CONSIDERED
TO BE ACTING AS AN OFFICER OF THE STATE FOR PURPOSES OF  SECTION  SEVEN-
TEEN  OF  THE  PUBLIC OFFICERS LAW, PROVIDED, HOWEVER, THAT THE COSTS OF
ANY DEFENSE OR INDEMNIFICATION OF THE PRESIDENT ARISING FROM  THE  EXER-
CISE OF THE FUNCTIONS OF TRUSTEE SHALL BE PAYABLE FROM THE ASSETS OF THE
TRUST.
  10.  THE  PRESIDENT  SHALL  PREPARE  OR CAUSE TO BE PREPARED AN ANNUAL
FINANCIAL REPORT OF ASSETS, LIABILITIES, REVENUES AND  EXPENSES  OF  THE
TRUST  IN  ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. THE

S. 4279                             5

PRESIDENT SHALL CAUSE THE ACTIVITIES UNDERTAKEN IN CONNECTION  WITH  THE
TRUST, INCLUDING THE ANNUAL FINANCIAL REPORT, TO BE AUDITED ANNUALLY, IN
ACCORDANCE WITH GENERALLY ACCEPTED AUDITING STANDARDS, BY AN INDEPENDENT
CERTIFIED  PUBLIC  ACCOUNTANT  ENGAGED  IN  A MANNER CONSISTENT WITH THE
APPLICABLE PROVISIONS OF THE STATE  FINANCE  LAW.  THE  AUDIT  SHALL  BE
COMPLETED  WITHIN  ONE HUNDRED TWENTY DAYS FROM THE CLOSE OF THE STATE'S
FISCAL YEAR. A COPY OF THE ANNUAL FINANCIAL REPORT  AND  THE  REPORT  OF
SUCH  AUDIT SHALL BE PROVIDED TO THE GOVERNOR, THE STATE COMPTROLLER AND
THE CHAIRS OF THE LEGISLATIVE FISCAL COMMITTEES.
  11.  NOTHING  CONTAINED  IN  THIS  SECTION  SHALL  BE  INTERPRETED  OR
CONSTRUED TO:
  (A)  CREATE  ANY OBLIGATION IN, IMPOSE ANY OBLIGATION ON, OR ALTER ANY
OBLIGATION OF THE STATE TO PROVIDE OTHER POST EMPLOYMENT BENEFITS;
  (B) LIMIT OR RESTRICT THE AUTHORITY OF THE STATE TO MODIFY  OR  ELIMI-
NATE OTHER POST EMPLOYMENT BENEFITS;
  (C) ASSURE OR DENY OTHER POST EMPLOYMENT BENEFITS; OR
  (D)  REQUIRE THE STATE TO FUND ITS LIABILITY FOR OTHER POST EMPLOYMENT
BENEFITS.
  S 3. The general municipal law is amended by adding a new section  6-t
to read as follows:
  S 6-T. OTHER POST EMPLOYMENT BENEFITS (OPEB) TRUST. 1. FOR PURPOSES OF
THIS SECTION:
  (A)  "LOCAL  GOVERNMENT"  SHALL  MEAN  A MUNICIPAL CORPORATION, SCHOOL
DISTRICT, BOARD OF COOPERATIVE  EDUCATIONAL  SERVICES,  DISTRICT  CORPO-
RATION,  SPECIAL  IMPROVEMENT  DISTRICT  GOVERNED BY A SEPARATE BOARD OF
COMMISSIONERS, COMMUNITY COLLEGE OR PUBLIC LIBRARY THAT  PROVIDES  OTHER
POST EMPLOYMENT BENEFITS.
  (B)  "OTHER  POST  EMPLOYMENT  BENEFITS"  SHALL  MEAN BENEFITS, EXCEPT
PENSIONS OR OTHER BENEFITS FUNDED THROUGH A  PUBLIC  RETIREMENT  SYSTEM,
PROVIDED  OR  TO  BE  PROVIDED  AS COMPENSATION BY THE LOCAL GOVERNMENT,
WHETHER PURSUANT TO STATE STATUTE, LOCAL ENACTMENT,  CONTRACT  OR  OTHER
LAWFUL  AUTHORITY,  TO  ITS  FORMER OR CURRENT OFFICERS OR EMPLOYEES, OR
THEIR FAMILIES OR BENEFICIARIES, AFTER SERVICE TO THE  LOCAL  GOVERNMENT
HAS ENDED, INCLUDING, BUT NOT LIMITED TO, HEALTH CARE BENEFITS. THE TERM
"OTHER POST EMPLOYMENT BENEFITS" SHALL NOT INCLUDE CASH PAYMENTS FOR THE
MONETARY  VALUE  OF  SICK  LEAVE,  VACATION  OR  OTHER SIMILAR ACCRUALS,
RETIREMENT INCENTIVE OR SEPARATION PAYMENTS, OR BENEFITS PROVIDED PURSU-
ANT TO THE  CONSOLIDATED  OMNIBUS  BUDGET  RECONCILIATION  ACT  OF  1985
(PUBLIC LAW 99-272), AS AMENDED.
  2. THE GOVERNING BODY OF A LOCAL GOVERNMENT, BY RESOLUTION, MAY ESTAB-
LISH  A  TRUST  IN  THE CUSTODY OF THE CHIEF FISCAL OFFICER OF THE LOCAL
GOVERNMENT, FOR THE PURPOSE OF ACCUMULATING ASSETS TO FUND THE  COST  TO
THE  LOCAL  GOVERNMENT  OF  PROVIDING  OTHER  POST  EMPLOYMENT BENEFITS.
CONTRIBUTIONS TO SUCH TRUST MAY BE MADE BY THE LOCAL GOVERNMENT BY BUDG-
ETARY APPROPRIATION OR TRANSFER IN ACCORDANCE  WITH  THE  PROVISIONS  OF
SUBDIVISION NINE OF SECTION SIX-P OF THIS ARTICLE.
  3.  THE  GOVERNING BOARD OF THE LOCAL GOVERNMENT IS HEREBY DECLARED TO
BE THE TRUSTEE OF  ANY  TRUST  ESTABLISHED  PURSUANT  TO  THIS  SECTION,
PROVIDED,  HOWEVER,  THAT THE GOVERNING BOARD, BY RESOLUTION, MAY DESIG-
NATE THE CHIEF FISCAL  OFFICER  OF  THE  LOCAL  GOVERNMENT  AS  TRUSTEE,
SUBJECT  TO ACCEPTANCE OF SUCH POSITION BY THE CHIEF FISCAL OFFICER AND,
IN THE CASE OF A CITY WITH A POPULATION OF ONE MILLION OR MORE, THE CITY
COMPTROLLER SHALL BE THE TRUSTEE. THE TRUSTEE SHALL BE  RESPONSIBLE  FOR
THE  OPERATION  AND  MANAGEMENT  OF THE TRUST, INCLUDING THE DEPOSIT AND
SECURING OF TRUST ASSETS IN THE SAME MANNER AS PROVIDED IN  SECTION  TEN
OF  THIS  ARTICLE,  AND  THE  INVESTMENT  OF  TRUST ASSETS, AND SHALL BE

S. 4279                             6

SUBJECT TO ALL THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW  ON  TRUS-
TEES,  EXCEPT  TO THE EXTENT INCONSISTENT WITH THIS SECTION. THE TRUSTEE
SHALL EXECUTE AND FILE WITH THE CLERK OF THE LOCAL GOVERNMENT AN  APPRO-
PRIATE UNDERTAKING, SEPARATE FROM AND IN ADDITION TO ANY OTHER UNDERTAK-
ING  REQUIRED  OF THE TRUSTEE IN ANY OTHER CAPACITY, IN AN AMOUNT SUFFI-
CIENT TO COVER TRUST ASSETS. IN  LIEU  THEREOF,  SUCH  COVERAGE  MAY  BE
INCLUDED  IN  A BLANKET UNDERTAKING IN ACCORDANCE WITH SECTION ELEVEN OF
THE PUBLIC OFFICERS LAW.  THE COST OF THE UNDERTAKING SHALL  BE  CONSID-
ERED TO BE A REASONABLE EXPENSE OF ADMINISTERING THE TRUST.
  4.  CONTRIBUTIONS  TO  THE  TRUST, AND ANY INTEREST OR OTHER INCOME OR
EARNINGS ON CONTRIBUTIONS, SHALL BE IRREVOCABLE BEFORE  ALL  LIABILITIES
OF  THE  LOCAL  GOVERNMENT  FOR OTHER POST EMPLOYMENT BENEFITS HAVE BEEN
SATISFIED, AND SHALL BE  SOLELY  DEDICATED  TO,  AND  USED  SOLELY  FOR,
PROVIDING  OTHER  POST  EMPLOYMENT  BENEFITS  AND PAYING APPROPRIATE AND
REASONABLE EXPENSES OF ADMINISTERING THE TRUST. NO ASSETS, INCOME, EARN-
INGS OR DISTRIBUTIONS OF THE TRUST SHALL BE  SUBJECT  TO  ANY  CLAIM  OF
CREDITORS OF THE LOCAL GOVERNMENT OR OF ANY PERSON OR ENTITY ADMINISTER-
ING  A  PLAN  FOR  THE PROVISION OF OTHER POST EMPLOYMENT BENEFITS OR TO
ASSIGNMENT OR EXECUTION, ATTACHMENT OR ANY OTHER CLAIM ENFORCEMENT PROC-
ESS INITIATED BY OR ON BEHALF OF SUCH CREDITORS.   EXCEPT  AS  OTHERWISE
PROVIDED  IN SUBDIVISION SEVEN OF THIS SECTION, THE TRUSTEE SHALL NOT BE
RESPONSIBLE FOR THE ADEQUACY OF THE ASSETS OF  THE  TRUST  TO  MEET  ANY
OTHER  POST EMPLOYMENT BENEFIT. THE TRUSTEE SHALL NOT BE RESPONSIBLE FOR
TAKING ANY ACTION TO ENFORCE THE PAYMENT OF ANY APPROPRIATION  INTO  THE
TRUST.  THE  ASSETS OF THE TRUST, INCLUDING ALL INTEREST OR OTHER INCOME
OR EARNINGS ON CONTRIBUTIONS TO THE TRUST,  SHALL  BE  EXEMPT  FROM  ALL
STATE  AND  LOCAL  TAXES.    THE  TRUST  MAY BE TERMINATED ONLY WHEN ALL
LIABILITIES OF THE LOCAL GOVERNMENT FOR OTHER POST  EMPLOYMENT  BENEFITS
HAVE  BEEN  SATISFIED  AND  THERE  IS  NO  PRESENT OR FUTURE OBLIGATION,
CONTINGENT OR OTHERWISE, OF THE LOCAL GOVERNMENT TO PROVIDE  SUCH  OTHER
POST  EMPLOYMENT  BENEFITS.  UPON  SUCH TERMINATION, ANY REMAINING TRUST
ASSETS, AFTER ANY PROPER EXPENSES OF THE TRUST  HAVE  BEEN  PAID,  SHALL
REVERT  TO  THE  LOCAL  GOVERNMENT  TO  BE PAID INTO ONE OR MORE RESERVE
FUNDS, DULY ESTABLISHED PURSUANT TO THIS ARTICLE OR OTHER STATE STATUTE,
IN SUCH AMOUNTS AS DETERMINED  BY  THE  GOVERNING  BOARD  OF  THE  LOCAL
GOVERNMENT.
  5. DISBURSEMENTS FROM THE TRUST SHALL BE MADE ONLY UPON A DULY AUTHOR-
IZED  REQUEST PURSUANT TO RESOLUTION OF THE GOVERNING BOARD OF THE LOCAL
GOVERNMENT STATING THE AMOUNT OF THE REQUESTED DISBURSEMENT  AND  DETER-
MINING  THAT THE DISBURSEMENT IS FOR THE SOLE PURPOSE OF PROVIDING FUNDS
FOR THE COSTS OF OTHER POST EMPLOYMENT BENEFITS CURRENTLY DUE AND  PAYA-
BLE BY THE LOCAL GOVERNMENT.
  6.  THE TRUSTEE SHALL INVEST THE ASSETS OF THE TRUST IN THE OTHER POST
EMPLOYMENT BENEFITS INVESTMENT FUND IN THE CUSTODY OF  THE  STATE  COMP-
TROLLER,  IN  ACCORDANCE  WITH  SECTION  NINETY-SEVEN-LLLL  OF THE STATE
FINANCE LAW. ANY INTEREST OR OTHER INCOME OR EARNINGS RESULTING FROM THE
INVESTMENT OF ASSETS OF THE TRUST SHALL ACCRUE TO AND BECOME PART OF THE
ASSETS OF THE TRUST. THE TRUSTEE  SHALL  DEVELOP  A  WRITTEN  INVESTMENT
POLICY  FOR  SELECTING AMONG THE INVESTMENT OPTIONS OFFERED BY THE STATE
COMPTROLLER PURSUANT TO SECTION NINETY-SEVEN-LLLL OF THE  STATE  FINANCE
LAW  WHICH, AT A MINIMUM, SHALL INCLUDE A STATEMENT OF INVESTMENT OBJEC-
TIVES ADDRESSING, IN THE FOLLOWING ORDER OF  PRIORITY,  COMPLIANCE  WITH
ALL LEGAL REQUIREMENTS, THE ABILITY TO TIMELY MEET DISBURSEMENT REQUESTS
WITHOUT  FORCED  SALE  OF  ASSETS, SAFETY OF PRINCIPAL AND ATTAINMENT OF
MARKET RATES OF RETURN.

S. 4279                             7

  7. NEITHER THE LOCAL GOVERNMENT NOR THE TRUSTEE SHALL  BE  LIABLE  FOR
ANY  LOSS  OR EXPENSE SUFFERED BY THE TRUST IN THE ABSENCE OF BAD FAITH,
WILLFUL MISCONDUCT OR  INTENTIONAL  WRONGDOING.  THE  TRUSTEE  SHALL  BE
CONSIDERED  TO  BE  AN  EMPLOYEE OF THE LOCAL GOVERNMENT FOR PURPOSES OF
SECTION EIGHTEEN OF THE PUBLIC OFFICERS LAW, PROVIDED, HOWEVER, THAT THE
COSTS  OF ANY DEFENSE OR INDEMNIFICATION OF THE TRUSTEE ARISING FROM THE
EXERCISE OF THE FUNCTIONS OF TRUSTEE SHALL BE PAYABLE FROM THE ASSETS OF
THE TRUST.
  8. THE TRUSTEE SHALL PREPARE OR CAUSE TO BE PREPARED AN ANNUAL  FINAN-
CIAL  REPORT  OF ASSETS, LIABILITIES, REVENUES AND EXPENSES OF THE TRUST
IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. THE TRUSTEE
SHALL CAUSE THE ACTIVITIES UNDERTAKEN  IN  CONNECTION  WITH  THE  TRUST,
INCLUDING  THE  ANNUAL  FINANCIAL REPORT, TO BE AUDITED ANNUALLY, EITHER
SEPARATELY OR AS PART OF THE OVERALL AUDIT OF THE REPORTING  ENTITY,  IN
ACCORDANCE WITH GENERALLY ACCEPTED AUDITING STANDARDS, BY AN INDEPENDENT
CERTIFIED  PUBLIC  ACCOUNTANT  ENGAGED  IN  A MANNER CONSISTENT WITH THE
PROCUREMENT POLICIES AND PROCEDURES  ADOPTED  BY  THE  LOCAL  GOVERNMENT
PURSUANT  TO  SECTION  ONE  HUNDRED  FOUR-B OF THIS CHAPTER AND SHALL BE
SUBJECT TO A REQUEST FOR PROPOSALS PROCESS AT LEAST  EVERY  FIVE  YEARS.
THE  AUDIT  SHALL  BE  COMPLETED WITHIN ONE HUNDRED TWENTY DAYS FROM THE
CLOSE OF THE FISCAL YEAR OF THE LOCAL GOVERNMENT. A COPY OF  THE  ANNUAL
FINANCIAL  REPORT  AND THE REPORT OF SUCH AUDIT SHALL BE PROVIDED TO THE
STATE COMPTROLLER, THE TRUSTEE AND THE  GOVERNING  BOARD  OF  THE  LOCAL
GOVERNMENT  AND SHALL BE PUBLICLY AVAILABLE AND POSTED ON THE WEBSITE OF
THE LOCAL GOVERNMENT, IF SUCH A WEBSITE IS MAINTAINED.
  9. THE STATE COMPTROLLER MAY MAKE, AMEND AND  REPEAL  SUCH  RULES  AND
REGULATIONS AS THE STATE COMPTROLLER MAY DEEM APPROPRIATE FOR THE PROPER
OPERATION AND MANAGEMENT OF TRUSTS ESTABLISHED PURSUANT TO THIS SECTION.
  10.  NOTHING  CONTAINED  IN  THIS  SECTION  SHALL  BE  INTERPRETED  OR
CONSTRUED TO:
  (A) CREATE ANY OBLIGATION IN, IMPOSE ANY OBLIGATION ON, OR  ALTER  ANY
OBLIGATION  OF  ANY  LOCAL  GOVERNMENT  TO PROVIDE OTHER POST EMPLOYMENT
BENEFITS;
  (B) LIMIT OR RESTRICT THE AUTHORITY OF A LOCAL GOVERNMENT TO MODIFY OR
ELIMINATE OTHER POST EMPLOYMENT BENEFITS;
  (C) ASSURE OR DENY OTHER POST EMPLOYMENT BENEFITS; OR
  (D) REQUIRE ANY LOCAL GOVERNMENT TO FUND ITS LIABILITY FOR OTHER  POST
EMPLOYMENT BENEFITS.
  S  4.  Subdivision  9  of section 6-p of the general municipal law, as
added by chapter 518 of the laws of 1996, is amended to read as follows:
  9. If, after the establishment of such fund, the  municipality  deter-
mines  that  such fund is no longer needed, the moneys remaining in such
fund may be transferred to any other reserve  fund  OR  ANY  OTHER  POST
EMPLOYMENT  BENEFITS  TRUST  of  the municipal corporation authorized by
this chapter that is comprised of moneys which were raised on  the  same
tax  base  as  the  moneys  in  the  reserve fund established under this
section or TO A RESERVE FUND ESTABLISHED PURSUANT TO section  thirty-six
hundred  fifty-one  of  the  education  law, only to the extent that the
moneys in this fund shall exceed the sum sufficient to pay  all  liabil-
ities  incurred  or  accrued  against it. Prior to the discontinuance of
such fund, the fiscal and legal officers of such  municipal  corporation
shall  certify  to  the  governing  board thereof the amount that may be
necessary to retain in such fund to satisfy all liabilities incurred  or
accrued  against  it  and  such  sum  shall  be retained in the fund for
payment of such amounts or until later certified that such funds are  no
longer needed.

S. 4279                             8

  S  5.  The  provisions of section 6-t of the general municipal law, as
added by section three of this act, shall not affect the validity of the
establishment or implementation of the  New  York  City  Retiree  Health
Benefit  Trust,  established  June  12,  2006 by the City of New York as
Grantor, and neither the operation nor any amendment of such trust shall
be  subject to the provisions of such section. The establishment of such
trust and its operation in accordance with its terms is hereby  ratified
and approved.
  S 6. This act shall take effect immediately.

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Sponsored By

Jack M. Martins

Archive: Last Bill Status - In Senate Committee Finance Committee

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