S T A T E O F N E W Y O R K
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8019--C
Cal. No. 327
2015-2016 Regular Sessions
I N A S S E M B L Y
June 4, 2015
___________
Introduced by M. of A. O'DONNELL, COLTON, RAIA, BRONSON -- read once and
referred to the Committee on Education -- advanced to a third reading,
amended and ordered reprinted, retaining its place on the order of
third reading -- again amended on third reading, ordered reprinted,
retaining its place on the order of third reading -- again amended on
third reading, ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the education law and the tax law, in relation to
contracts for the transportation of school children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Statement of legislative findings and necessity. The legis-
lature hereby finds that for three decades beginning in 1979, following
a strike by school bus workers, the school bus contracts of the board of
education of the city of New York included employee protection
provisions requiring transportation contractors, among other things, to
give priority in hiring to employees who became unemployed because of
their employers' loss of bus contract work for such board and to pay
such employees the same wages and benefits they had received prior to
becoming unemployed.
Following the 2011 decision by the New York State Court of Appeals in
L&M BUS CORP., ET AL., V. THE NEW YORK CITY DEPARTMENT OF EDUCATION, ET
AL., the board of education of the city of New York did not include the
employee protection provisions that had been part of the board's school
bus contracts for over 30 years or any similar provisions in its solic-
itations for its school bus contracts. After the issuance of the first
such Post-L&M solicitation; there was a school bus strike in January and
February of 2013. During this strike, many children were either unable
to attend school or were burdened, along with their families, with find-
ing alternative modes of transportation in the heart of winter.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10792-07-6
A. 8019--C 2
The legislature further finds that the board of education of the city
of New York contracts with 62 companies to provide vital school bus
transportation to 149,000 school-age children. Pursuant to the education
law, the state reimburses the board of education of the city of New York
for a substantial percentage of its school bus contract expenditures.
Accordingly, the legislature finds that the education law should be
amended to require the board of education of the city of New York to
include important employee protections in its procurements for school
bus transportation contracts and to authorize the board of education to
amend existing contracts to include these protections. Including these
protections in such board's contracts will aid in avoiding service
disruptions and pension withdrawal liability claims, while protecting
the experienced school bus contract workforce from significant wage and
benefit reductions and facilitating the retention of an experienced
workforce. Inclusion of such protections will secure more cost-effec-
tive, higher quality and efficient procurement and performance of school
bus transportation services.
S 2. Paragraph a of subdivision 14 of section 305 of the education
law, as amended by chapter 273 of the laws of 1999, is amended to read
as follows:
a. (1) All contracts for the transportation of school children, all
contracts to maintain school buses owned or leased by a school district
that are used for the transportation of school children, all contracts
for mobile instructional units, and all contracts to provide, maintain
and operate cafeteria or restaurant service by a private food service
management company shall be subject to the approval of the commissioner,
who may disapprove a proposed contract if, in his OR HER opinion, the
best interests of the district will be promoted thereby. Except as
provided in paragraph e of this subdivision, all such contracts involv-
ing an annual expenditure in excess of the amount specified for purchase
contracts in the bidding requirements of the general municipal law shall
be awarded to the lowest responsible bidder, which responsibility shall
be determined by the board of education or the trustee of a district,
with power hereby vested in the commissioner to reject any or all bids
if, in his OR HER opinion, the best interests of the district will be
promoted thereby and, upon such rejection of all bids, the commissioner
shall order the board of education or trustee of the district to seek,
obtain and consider new proposals. All proposals for such transporta-
tion, maintenance, mobile instructional units, or cafeteria and restau-
rant service shall be in such form as the commissioner may prescribe.
Advertisement for bids shall be published in a newspaper or newspapers
designated by the board of education or trustee of the district having
general circulation within the district for such purpose. Such adver-
tisement shall contain a statement of the time when and place where all
bids received pursuant to such advertisement will be publicly opened and
read either by the school authorities or by a person or persons desig-
nated by them. All bids received shall be publicly opened and read at
the time and place so specified. At least five days shall elapse between
the first publication of such advertisement and the date so specified
for the opening and reading of bids. The requirement for competitive
bidding shall not apply to an award of a contract for the transportation
of pupils or a contract for mobile instructional units, if such award is
based on an evaluation of proposals in response to a request for
proposals pursuant to paragraph e of this subdivision. The requirement
for competitive bidding shall not apply to annual, biennial, or trienni-
al extensions of a contract nor shall the requirement for competitive
A. 8019--C 3
bidding apply to quadrennial or quinquennial year extensions of a
contract involving transportation of pupils, maintenance of school buses
or mobile instructional units secured either through competitive bidding
or through evaluation of proposals in response to a request for
proposals pursuant to paragraph e of this subdivision, when such exten-
sions [(1)] (I) are made by the board of education or the trustee of a
district, under rules and regulations prescribed by the commissioner,
and, [(2)] (II) do not extend the original contract period beyond five
years from the date cafeteria and restaurant service commenced there-
under and in the case of contracts for the transportation of pupils, for
the maintenance of school buses or for mobile instructional units, that
such contracts may be extended, except that power is hereby vested in
the commissioner, in addition to his OR HER existing statutory authority
to approve or disapprove transportation or maintenance contracts, [(i)]
(A) to reject any extension of a contract beyond the initial term there-
of if he OR SHE finds that amount to be paid by the district to the
contractor in any year of such proposed extension fails to reflect any
decrease in the regional consumer price index for the N.Y.,
N.Y.-Northeastern, N.J. area, based upon the index for all urban consum-
ers (CPI-U) during the preceding twelve month period, OR FOR ALL
CONTRACTS FOR SCHOOL BUSES USED FOR THE TRANSPORTATION OF SCHOOL CHIL-
DREN, MAINTENANCE, AND ALL CONTRACTS FOR MOBILE INSTRUCTIONAL UNITS, IF
THE AMOUNT TO BE PAID BY THE DISTRICT TO THE CONTRACTOR IN ANY YEAR OF
SUCH PROPOSED EXTENSION FAILS TO REFLECT ANY PERCENTAGE DECREASE IN THE
EMPLOYMENT COST INDEX (ECI) FOR TOTAL COMPENSATION FOR PRIVATE INDUSTRY
WORKERS IN THE NORTHEAST REGION (NOT SEASONALLY ADJUSTED) FOR THE FOURTH
QUARTER OF THE PRECEDING YEAR; [and (ii)] (B) to reject any extension of
a contract after ten years from the date transportation or maintenance
service commenced thereunder, or mobile instructional units were first
provided, if in his OR HER opinion, the best interests of the district
will be promoted thereby. Upon such rejection of any proposed extension,
the commissioner may order the board of education or trustee of the
district to seek, obtain and consider bids pursuant to the provisions of
this section; AND (C) TO REJECT ANY EXTENSION OF A CONTRACT FOR TRANS-
PORTATION, OR NEW CONTRACT, IF HE OR SHE FINDS THAT THE AMOUNT TO BE
PAID BY THE DISTRICT TO THE CONTRACTOR IN ANY YEAR OF SUCH PROPOSED
CONTRACT FAILS TO REFLECT THE SAVINGS REALIZED FROM THE SALES TAX
EXEMPTION ON SCHOOL BUSES, PARTS, EQUIPMENT, LUBRICANTS AND FUEL USED
FOR SCHOOL PURPOSES PURSUANT TO PARAGRAPH FORTY-FOUR OF SUBDIVISION (A)
OF SECTION ELEVEN HUNDRED FIFTEEN OF THE TAX LAW. The board of education
or the trustee of a school district electing to extend a contract as
provided herein, may, in its discretion, increase the amount to be paid
in each year of the contract extension by an amount not to exceed the
regional consumer price index increase for the N.Y., N.Y.-Northeastern,
N.J. area, based upon the index for all urban consumers (CPI-U), during
the preceding twelve month period, OR FOR ALL CONTRACTS FOR SCHOOL BUSES
USED FOR THE TRANSPORTATION OF SCHOOL CHILDREN, MAINTENANCE, AND ALL
CONTRACTS FOR MOBILE INSTRUCTIONAL UNITS, BY AN AMOUNT NOT TO EXCEED THE
PERCENTAGE INCREASE IN THE EMPLOYMENT COST INDEX (ECI) TOTAL COMPEN-
SATION FOR PRIVATE INDUSTRY WORKERS IN THE NORTHEAST REGION (NOT
SEASONALLY ADJUSTED) FOR THE FOURTH QUARTER OF THE PRECEDING YEAR,
provided it has been satisfactorily established by the contractor that
there has been at least an equivalent increase in the amount of his OR
HER cost of operation, during the period of the contract.
(2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, THE BOARD
OF EDUCATION OF A SCHOOL DISTRICT LOCATED IN A CITY WITH AT LEAST ONE
A. 8019--C 4
MILLION INHABITANTS SHALL INCLUDE IN CONTRACTS FOR THE TRANSPORTATION OF
SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, WHETHER AWARDED
THROUGH COMPETITIVE BIDDING OR THROUGH EVALUATION OF PROPOSALS IN
RESPONSE TO A REQUEST FOR PROPOSALS PURSUANT TO PARAGRAPH E OF THIS
SUBDIVISION, PROVISIONS FOR THE RETENTION OR PREFERENCE IN HIRING OF
SCHOOL BUS WORKERS AND FOR THE PRESERVATION OF WAGES, HEALTH, WELFARE
AND RETIREMENT BENEFITS AND SENIORITY FOR SCHOOL BUS WORKERS WHO ARE
HIRED PURSUANT TO SUCH PROVISIONS FOR RETENTION OR PREFERENCE IN HIRING,
IN CONNECTION WITH SUCH CONTRACTS. FOR PURPOSES OF THIS SUBPARAGRAPH,
"SCHOOL BUS WORKER" SHALL MEAN AN OPERATOR, MECHANIC, DISPATCHER OR
ATTENDANT WHO: (I) WAS EMPLOYED AS OF JUNE THIRTIETH, TWO THOUSAND TEN
OR AT ANY TIME THEREAFTER BY (A) A CONTRACTOR THAT WAS A PARTY TO A
CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL DISTRICT LOCATED IN A
CITY WITH AT LEAST ONE MILLION INHABITANTS FOR THE TRANSPORTATION OF
SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, IN CONNECTION WITH
SUCH CONTRACT, OR (B) A SUBCONTRACTOR OF A CONTRACTOR THAT WAS A PARTY
TO A CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL DISTRICT LOCATED
IN A CITY WITH AT LEAST ONE MILLION INHABITANTS FOR THE TRANSPORTATION
OF SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, IN CONNECTION
WITH SUCH CONTRACT, AND (II) HAS BEEN FURLOUGHED OR BECOME UNEMPLOYED AS
A RESULT OF A LOSS OF SUCH CONTRACT, OR A PART OF SUCH CONTRACT, BY SUCH
CONTRACTOR OR SUCH SUBCONTRACTOR, OR AS A RESULT OF A REDUCTION IN
SERVICE DIRECTED BY SUCH BOARD OF EDUCATION DURING THE TERM OF SUCH
CONTRACT.
S 3. Paragraph c of subdivision 14 of section 305 of the education
law, as amended by chapter 15 of the laws of 2005, is amended to read as
follows:
c. Each board of education, or the trustees, of a school district
which elected or elects to extend one or more pupil transportation
contracts may extend a contract in an amount which is in excess of the
maximum increase allowed by use of the [CPI] ECI referenced in paragraph
a of this subdivision. Such excess amount shall not be greater than the
sum of the following: (i) the sum of the actual cost of qualifying crim-
inal history and driver licensing testing fees attributable to special
requirements for drivers of school buses pursuant to articles nineteen
and nineteen-A of the vehicle and traffic law plus the actual cost of
any diagnostic tests and physical performance tests that are deemed to
be necessary by an examining physician or the chief school officer to
determine whether an applicant to drive a school bus under the terms of
the contract has the physical and mental ability to operate a school
transportation conveyance and to satisfactorily perform the other
responsibilities of a school bus driver pursuant to regulations of the
commissioner; (ii) in a school district located in a city with at least
one million inhabitants, the actual cost of clean air technology filters
and Global Positioning System (GPS) technology; (iii) in a school
district located in a city with at least one million inhabitants, with
respects only to any extension beginning in fiscal year two thousand
five--two thousand six, the sum of the actual cost of providing school
bus attendants including the actual cost of criminal history record
checks for school bus attendant applicants and training and instruction
for school bus attendants pursuant to section twelve hundred twenty-
nine-d of the vehicle and traffic law plus up to five percent of such
cost for necessary administrative services; and (iv) the actual cost of
equipment or vehicle modification, or training required, by any state or
local legislation or regulation promulgated or effective on or after
June first, two thousand five. Such costs shall be approved by the
A. 8019--C 5
commissioner upon documentation provided by the school district and
contractor as required by the commissioner.
S 4. Subdivision 14 of section 305 of the education law is amended by
adding a new paragraph g to read as follows:
G. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPHS A THROUGH F OF THIS
SUBDIVISION AND ANY REGULATION PROMULGATED PURSUANT THERETO, THE BOARD
OF EDUCATION OF A SCHOOL DISTRICT LOCATED IN A CITY WITH AT LEAST ONE
MILLION INHABITANTS AND A CONTRACTOR PROVIDING TRANSPORTATION SERVICES
TO SUCH DISTRICT FOR SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE
TWELVE MAY AMEND A CONTRACT WITH MUTUAL CONSENT FOR SUCH TRANSPORTATION
SERVICES, FOR SUCH CONSIDERATION AS APPROVED BY SUCH BOARD OF EDUCATION,
TO INCLUDE IN SUCH CONTRACT PROVISIONS FOR THE RETENTION OR PREFERENCE
IN HIRING OF SCHOOL BUS WORKERS AND FOR THE PRESERVATION OF WAGES,
HEALTH, WELFARE AND RETIREMENT BENEFITS AND SENIORITY FOR SCHOOL BUS
WORKERS WHO ARE HIRED PURSUANT TO SUCH PROVISIONS FOR RETENTION OR PREF-
ERENCE IN HIRING, IN CONNECTION WITH SUCH CONTRACTS. FOR PURPOSES OF
THIS PARAGRAPH, "SCHOOL BUS WORKER" SHALL MEAN AN OPERATOR, MECHANIC,
DISPATCHER OR ATTENDANT WHO: (1) WAS EMPLOYED AS OF JUNE THIRTIETH, TWO
THOUSAND TEN OR AT ANY TIME THEREAFTER BY (I) A CONTRACTOR THAT WAS A
PARTY TO A CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL DISTRICT
LOCATED IN A CITY WITH AT LEAST ONE MILLION INHABITANTS FOR THE TRANS-
PORTATION OF SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, IN
CONNECTION WITH SUCH CONTRACT, OR (II) A SUBCONTRACTOR OF A CONTRACTOR
THAT WAS A PARTY TO A CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL
DISTRICT LOCATED IN A CITY WITH AT LEAST ONE MILLION INHABITANTS FOR THE
TRANSPORTATION OF SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE,
IN CONNECTION WITH SUCH CONTRACT, AND (2) HAS BEEN FURLOUGHED OR BECOME
UNEMPLOYED AS A RESULT OF A LOSS OF SUCH CONTRACT, OR A PART OF SUCH
CONTRACT, BY SUCH CONTRACTOR OR SUCH SUBCONTRACTOR, OR AS THE RESULT OF
A REDUCTION IN SERVICE DIRECTED BY SUCH BOARD OF EDUCATION DURING THE
TERM OF SUCH CONTRACT.
S 5. Subdivision (a) of section 1115 of the tax law is amended by
adding a new paragraph 44 to read as follows:
(44) SCHOOL BUSES AS SUCH TERM IS DEFINED IN SECTION ONE HUNDRED
FORTY-TWO OF THE VEHICLE AND TRAFFIC LAW, AND PARTS, EQUIPMENT, LUBRI-
CANTS AND FUEL PURCHASED AND USED IN THEIR OPERATION.
S 6. Separability. If any item, clause, subparagraph, paragraph,
subdivision or section of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair or invalidate the remainder thereof, but shall be confined in its
operation to this item, clause, subparagraph, paragraph, subdivision or
section thereof that was adjudged to be invalid.
S 7. This act shall take effect immediately; provided, however, that
the provisions of section five of this act shall take effect on the
first day of a quarterly sales tax period, as set forth in subdivision
(b) of section 1136 of the tax law, next succeeding April 1, 2017.