Tuesday, May 22, 2012

Tomorrow's Senate Budget Debate

Tomorrow the Senate will commence debate on its version of the Fiscal Year 2013 budget, a $32.3 billion spending bill that will fund the operations of state government for the coming fiscal year. A total of 694 amendments have been filed to change the bill and among those I have filed are:

#9 – Income Tax Reduction Would reduce the income tax from its current 5.3% to 5.0%, doing so in three steps, with the ultimate 5.0% in place by 2015. In 2000, MA voters overwhelmingly supported bringing the income tax rate to 5%, and this amendment would honor their vote.

#47 First Time Home Buyer Savings Account Allows first time home buyers to create a tax free savings account of up to $4,000 per year to be used for housing purchase. It enables the conversion of existing savings accounts (savings, CDs, IRAs, etc.) into Homebuyer Savings Accounts (HBSAs), and provides a tax credit for up to $5,000 on previously taxed savings. Penalties for anyone abusing the system would go toward a Closing Cost Assistance Program for low income individuals.

#48 Job Creation Tax Credit Section 67D of Chapter 62C of the General Laws currently provides a job incentive program for biotechnology and medical device companies. This proposed job creation tax credit would mimic that program, but not be limited to a specific sector of the economy nor would an employer have to increase employment by 10 net jobs to qualify for the credit. Rather, this broad based job creation tax credit would apply to all companies who choose to participate and who increase their net employment figures in the commonwealth. Those companies increasing employment would be allowed to claim a tax credit equal to 50 per cent of the amount paid by the company as salary attributable to eligible jobs created by the company to the extent that the salary was subject to Massachusetts withholding pursuant to taxes on wages in chapter 62B. A company would be allowed to take such a credit for up to 50 new net employees in a given year over the previous year, for up to three years. The program would be administered by the commissioner of revenue, and sunset on June 30, 2016.

#72 Closing Drunk Driver Loophole In a decision issued last week by our SJC (Souza v. RMV), the court reversed the license suspension of an individual based on a DUI case in 2010 in which the defendant refused to take a chemical breath test. The defendant had previously been arrested for a DUI offense in a 1997 case that was continued without a finding after the defendant had admitted to sufficient facts for a finding of guilty. Under Melanie’s Law, the 2010 refusal, because it is a second offense, would normally trigger a license suspension of 3 years, and the Registry took that action. In yesterday’s decision, the SJC countermanded that decision because of the continuation of the first case without a “conviction,” as the word is defined in statute.

In the decision, the court expressly acknowledged it was likely construing the statute as written in frustration of the law’s purpose, but refused to cede to the legislative purpose in light of the actual language in the statute. This amendment would correct that technical mistake. It provides that a continuance without a finding after an admission of sufficient facts for a finding of guilty counts as a prior offense, restoring the intent of Melanie’s Law and reinstating an enhanced punishment when a driver who has previously been arrested for a DUI and admitted to sufficient facts for a finding of guilty again takes to the wheel under the influence.

#86 Correcting Drug Trafficking Loophole Methamphetamine (“Meth”), also commonly known as "crystal meth," "ice," and "speed," is a highly addictive and dangerous stimulant drug that is increasing in presence in our communities. Our criminal drug trafficking laws were most recently and significantly amended in the early 1980s and again in the early 1990s. These trafficking laws were placed on the books to differentiate between those who are dealing on the street, who are subject to distribution or possession of drugs with the intent to distribute charges, and those who transport large amounts of dangerous narcotics in Massachusetts, who are subject to higher penalties. Although our drug trafficking laws include dangerous drugs such as cocaine and heroin, they do not include a crime of trafficking in meth. This appears to be a legislative oversight, as in 1991 meth was included in our trafficking laws, but a 1992 change to the statute to address heroine and morphine trafficking replaced meth trafficking with the drug Phenmetrazine, “or Bam,” which has very little history of abuse here in Massachusetts. This amendment would again recognize the crime of trafficking in Meth, and punish it the same way we punish traffickers of heroine and our other most dangerous drugs.

#128 Fair Employment and Security Creates a public contract integrity chapter in the general laws designed to ensure that all contractors doing business with MA public employers only utilize employees that are in compliance with federal laws pertaining to immigration and citizenship. Requires individuals or business entities seeking to register a motor vehicle to produce documentation of a social security number, a license, or a tax ID number. Increases penalties for persons operating vehicle without having been issued a license, changing minimum penalty from $100 to $500 and maximum from previous $1,000 to $2,000 or by imprisonment for not more than 30 days, or both. Increases the fines for dealing counterfeit licenses, escalating the fines and imprisonment terms proportionally to the number of licenses being dealt, with maximum of a fine of not more than $10,000 dollars or by imprisonment in the state prison for not more than 15 years. Gives residents’ with a lawful immigration status priority over those who have an unlawful immigration status in securing low income housing authority rentals. Directs the AG to receive and investigate, when appropriate, complaints of employment violations in regards to federal immigration laws. Creates a fine and maximum year jail term for knowingly utilizing a false ID to secure or maintain employment.

#133 Searchable Website Section 14C of Chapter 7 requires all state agencies and departments to maintain a searchable website detailing the agencies funding, run by the Secretary of A&F. Although a reasonable interpretation of the statute would lead one to believe that independent quasi-public authorities have to comply with the section, some quasi-publics are not. This amendment would specify that quasi-publics must comply, and directs the A&F secretary to list out on the website those agencies that do not comply. Should agencies continue to fail to comply, the A&F secretary would submit legislation suggesting an enforcement mechanism. Similar language was passed as an amendment into the house budget.

#137 Consolidated Net Surplus This amendment would take 25 per cent of the consolidated net surplus for fiscal year 2013 and place it into the Tax Reduction fund. The consolidated net surplus is the sum of the undesignated balances in the budgetary funds, and currently the consolidated net surplus is allocated by depositing 1/2 of 1 per cent of the total revenue from taxes in the preceding fiscal year is put toward revenue for the current fiscal year and 1/2 of 1 per cent of the total revenue from taxes in the preceding fiscal is transferred to the Stabilization Fund, with any remaining funds also going to the Stabilization Fund. The Stabilization Fund already contemplates that proceeds in the fund may be transferred to the Tax Reduction Fund (transferred if Stab Fund exceeds 15 per cent of the budgeted revenues), this amendment merely ensure that money is deposited into the Tax Reduction Fund. The Tax Reduction Fund (Section 2I of Ch 29) allows for a temporary increase in the income tax personal exemption if money in the fund is sufficient. If the money in the Tax Reduction fund does not produce an increase in the personal exemption, the fund is divided yearly between local aid and the general fund.

#144 Establishment of Taxpayer Accountability Office Establishes an Office of Taxpayer Accountability within the Executive Office for Administration and Finance. The purpose of this office is ensure an efficient and cost-effective government and an independent analysis of policy changes, economic trends and other factors involving the cost of state government and its impact on the taxpayers of the commonwealth.

#148 Regulatory Reform This amendment develops a mechanism for the legislature to regularly review agency regulations. The amendment requires any agency who adopts a new regulation to submit the regulation to the joint committee on state administration and regulatory oversight. The committee would have the ability to suggest an amendment to the agency or suggest that the entire general court take action to disapprove of the regulation, but it would have no veto authority over the agency or ability to unilaterally prevent the regulation from being implemented.

The amendment further requires the secretary of state to include the full text and the statement of small business consideration when it posts information regarding the regulatory impact on small businesses.

Replaces the requirement that agencies review rules and regulations every 12 years to minimize their economic impact on small businesses with a 6 year review timeframe, and adds language that would require the agency to analyze the rule if certain interested parties ask for an analysis within 60 days of published notice of the proposed rule.

Finally, the amendment requires any state agency that approves a grant in excess of $500,000 to submit a cost-benefit analysis of the grant to the joint committee on state administration and regulatory oversight.

#152 State Spending Control This amendment would authorize the Secretary of A&F to develop a 3 year plan to reduce state spending by no less than 5%.

#155 State Spending Control II This amendment would authorize the Secretary of A&F to analyze the cost of operations of all state agencies whose revenue generated surpasses its budget. Upon completing the analyzation of the state agencies, the Secretary of A&F will have to file a report to both the clerks of the House and Senate and the House and Senate Committees on Ways and Means listing any agency whose cost of operation is less than the amount of revenue generated, the actual amount of the excess and the reason why. The report has to be filed no later than April 15, 2013.

#209 Veterans Park Discount Requires the Department of Conservation and Recreation to devise a plan for providing veterans with free or reduced admission to DCR-controlled facilities.

#229 Independent Contractors In 1990, the Legislature adopted a three-factor test to distinguish independent contractors from traditional 9-to-5 employees, but a 2004 amendment adopted as part of a sweeping public construction reform bill significantly narrowed the definition of an independent contractor. Previously, an individual was considered to be an independent contractor if: (1) the individual is free from control and direction in connection with the performance of a service; AND the service is performed outside of the usual course of business for the employer. Or, if the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed, he or she would also have been classified as an Independent Contractor.

The 2004 change requires individuals to meet all three criteria to be considered an independent contractor. Because of this change, many people who have historically been identified and treated as independent contractors – including couriers – are now considered regular employees by the Department of Revenue. This change has had a negative impact on many small businesses because these individuals are now subject to certain employer requirements, including workers compensation, unemployment insurance and overtime. This amendment reinstates the pre-2004 definition so individuals can either meet the first two requirements OR satisfy the third requirement to be considered an independent contractor.

#241 Special Commission on Unemployment Insurance Sets up an 11 member unemployment commission to look at process involved in the determination of unemployment benefits. The commission is designed to address any inconsistency in the process and ensure that our laws and regulations produce the results intended by unemployment insurance. The house has this language in its budget.

#293 Treble Damages In Massachusetts, all violations of wage and hour laws are subject to mandatory punitive treble (triple) damages, even when employers have acted in good faith and took reasonable steps to comply with wage payment laws. This is the result of the 2008 Treble Damages Act – which passed the Legislature over Republican objections and concerns expressed by Governor Patrick. The 2008 law reversed a 2005 Supreme Judicial Court decision that held that in cases of wage violations, punitive treble damages are discretionary and should only be used to punish willful misconduct by an employer. As a result of the 2008 law, the courts have seen a sharp increase in wage violation lawsuits, and the cost of doing business in Massachusetts has risen.

By restoring the law to as it was prior to 2008, the burden of triple damages on employers who make honest mistakes understanding the complex state wage laws or who are involved in good-faith compensation disputes would be removed. Employees would still of course be able to get punitive damages if their employer acts with an evil motive or shows indifference to the rights of others. However, simple good-faith errors or beliefs by an employer would correctly stopped being punished by draconian punitive treble damages.

#298 Housing Development In August 2006 Chapter 43D Expedited Permitting was enacted into law, establishing an inventory of Priority Development Sites (PDS) on which municipalities offer a maximum of 180 day local permitting process. Cities and towns that opt into Chapter 43D are able to target areas, through a streamlined local permitting process, specific for economic development. As of January 2012, the 43D Program has been adopted by 82 municipalities on 168 sites.

This amendment would expand the expedited permitting program from strictly economic development sites to sites used for the development or redevelopment of housing. A housing priority zone would be no greater than ½ acre in size, exceed the allowable area unit density by more than 50%, and need to designate 40% of the planned units for affordable housing purposes, meaning they would be dedicated to those earning 80% or less of area median income. Property tax payments in a housing priority site would be based on a pro rata basis, and not until the issuance of an occupancy permit.

To participate in the program, an interested community must identify a qualifying parcel as a priority housing development site, and obtain permission of its owner (if private) for participation in the program. Within 120 days of adopting the program, the community must appoint a single municipal point of contact for streamlined permitting; amend local rules, regulations, and bylaws to comply with the 180 day permit timeline; determine and make available the requirements for each permit; establish a procedure for identifying necessary permits for the project; and establish a procedure for determining completeness of the required submissions. After the 120 phase-in period is complete, the town must render permitting decisions on priority development sites within 180 days.

#319 Special Education Services Delivery This amendment would authorize Salem State University in partnership with the Department of Education and Secondary Education to conduct a study on the delivery of special education services in the Commonwealth. The study will include a comprehensive evaluation of existing and potential models for providing special education, and the associated costs and benefits that includes the costs of personnel compensation, transportation, housing and assistive technologies.

#461 Driver’s License Requirements Mandates applicants for driver’s licenses provide proof of lawful immigration status.

#594 EBT Cash Assistance Mismanagement Directs DTA to issue rent and utility payments in the form of vendor payments when the beneficiary has not been using his is her funds in the best use of a child or when the DTA determines there has been chronic misuse of funds. Vendor payments would not be used, however, if it negatively impacted the potential for homelessness or domestic abuse.