BILL ANALYSIS                                                                                                                                                                                                    



                                        
                       SENATE LOCAL GOVERNMENT COMMITTEE
                        Senator Patricia Wiggins, Chair


          BILL NO:  AB 155                     HEARING:  7/8/09
          AUTHOR:  Mendoza                     FISCAL:  Yes
          VERSION:  7/1/09                     CONSULTANT:   
          Weinberger
          
                          LOCAL GOVERNMENT BANKRUPTCY

                           Background and Existing Law  

          Federal bankruptcy law for public agencies (Chapter 9)  
          gives government debtors time to come up with repayment  
          plans, providing them a breathing spell from creditors'  
          collection efforts.  Unlike private bankruptcy law (Chapter  
          11), however, municipal bankruptcy law must respect the  
          states' sovereign powers.  Consequently, the states can  
          control their local agencies' access to federal bankruptcy  
          protection.  

          Like 11 other states, California grants its local public  
          agencies the broadest possible access to federal bankruptcy  
          available.  The state statutes broadly authorizing  
          bankruptcy filings by local governments were first enacted  
          in 1939 (SB 338, Phillips, 1939) and codified in 1949 (SB  
          768, Cunningham, 1949).  In 2001, after studying the state  
          statutes authorizing bankruptcy filings by local public  
          entities, the California Law Revision Commission  
          recommended revisions to conform the statutes to changes in  
          federal bankruptcy law and to reaffirm the intent of the  
          statute to provide the broadest possible access to  
          municipal debt relief under federal law.  Legislators  
          approved the Commission's recommendations the following  
          year (SB 1323, Ackerman, 2002).

          Because one municipality's bankruptcy may have a negative  
          effect on other local governments' borrowing power, some  
          states limit or prohibit their local governments to access  
          federal protections.  Local governments in 22 states do not  
          have access to municipal bankruptcy, while 16 other states  
          impose some conditions on municipal bankruptcy filings.   
          The conditions imposed by other states range from a  
          requirement that a local entity's legislative body must  
          pass an ordinance or resolution before filing for  
          bankruptcy to a requirement that a state commission grant  
          approval before a local government may file for bankruptcy




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          After the 1994 Orange County bankruptcy, the Legislature  
          tried to establish state oversight for municipal bankruptcy  
          filings.  The bill passed, but Governor Pete Wilson vetoed  
          it (SB 349, Kopp, 1996).  The Law Revision Commission's  
          2001 study also considered proposals to require prefiling  
          approval by the Governor or a governmental committee, but  
          did not recommend any substantive reforms.

          The California Debt and Investment Advisory Commission  
          (CDIAC) provides information, education, and technical  
          assistance on debt issuance and public fund investments to  
          local public agencies.  The Commission has nine members,  
          including the State Treasurer, the Governor or the Director  
          of Finance, the State Controller, two local government  
          finance officials, two Assembly Members, and two Senators.   
          The State Treasurer serves as the Chairperson and appoints  
          the two local government officials. The Assembly Speaker  
          appoints the Assembly's representatives and the Senate  
          Rules Committee appoints the Senate's representatives.

          In response to concerns about the City of Vallejo's recent  
          decision to file bankruptcy and the potential for  
          additional municipal bankruptcy filings, labor unions and  
          others want to require state oversight of local  
          governments' bankruptcy petitions.


                                   Proposed Law  

          Assembly Bill 155 authorizes a local public entity, with  
          the approval of the California Debt and Investment Advisory  
          Commission (CDIAC), and under CDIAC's terms and conditions,  
          to file a petition and exercise powers pursuant to  
          applicable federal bankruptcy law.

          I.  Submitting a request  .  AB 155 requires a local public  
          entity, upon making a request to CDIAC for approval to  
          exercise its rights under federal bankruptcy law, to submit  
          all of the following to the Commission:
                 A resolution or ordinance, adopted by the governing  
               body at a public hearing held pursuant to the Ralph M.  
               Brown Act that does both of the following:
               o      Requests authority pursuant to statute to  
                 petition the federal bankruptcy court for financial  
                 relief.





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               o      Acknowledges that the state's fiscal and  
                 financial responsibilities are not changed by the  
                 application or the Commission's decision.
                 A thorough analysis of the entity's request to  
               petition under federal bankruptcy law. The entity  
               must:
               o      Demonstrate that it is or will be unable to pay  
                 its undisputed debts.
               o      Demonstrate that it has exhausted all options  
                 to avoid seeking relief under Chapter 9.
               o      Detail a specific plan for restoring the  
                 soundness of the entity's financial plans.
                 An itemization of creditors that may be impaired or  
               may seek damages as a result of the proposed plan.
                 Evidence of irreparable harm that may result during  
               the 30-day evaluation period and the 15 days allotted  
               for a hearing authorized by the bill.

          AB 155 allows a county that requests approval from CDIAC to  
          require local agencies with funds invested in the county  
          treasury to provide a five-day notice of withdrawal before  
          the county must comply with a request for withdrawal of  
          funds.

          II.   Initial review  .  Within five days of receiving the  
          information that must accompany a local public entity's  
          request, CDIAC must evaluate the information and notify the  
          entity of one of the following results:
                 Approval of the request, or
                 The Commission will proceed with a further  
               evaluation based on a finding that the local public  
               entity did not provide sufficient evidence of  
               irreparable harm.  
          If CDIAC does not respond within five days, the request is  
          deemed approved.

          III.   Evaluation  .  AB 155 requires the Commission to  
          publish its evaluation within 30 business days of receiving  
          the information that must accompany a local public entity's  
          request.  After notifying the local public entity of its  
          intent to further evaluate a request, the Commission's  
          staff must specifically evaluate the extent to which the  
          local public entity has done the following:
                 Demonstrated that it has exhausted other remedies,
                 Demonstrated that it has taken sufficient steps to  
               reduce the negative consequences of its proposed  





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               bankruptcy relief,
                 Anticipated the transfer of service responsibility  
               to other governments or parties and to what extent the  
               entity has documented the consequences for the  
               transfer of municipal and other government services,
                 Documented the likely effect a successful petition  
               will have on state and local finances, including the  
               impact on credit access and debt service, and
                 Proposed a remedy that is appropriate and  
               proportionate to the entity's fiscal problems.

          IV.   Hearing  .  AB 155 requires CDIAC to hold a public  
          hearing to consider a local public entity's request for  
          approval to file a petition and exercise powers pursuant to  
          federal bankruptcy law.  The hearing must:
                 Occur at least 10 days, but not more than 15 days,  
               after the publication of CDIAC's staff evaluation of  
               the request,
                 Comply with the provisions of the Bagely-Keene Open  
               Meeting Act and additional public notice provisions,
                 Provide sufficient time for public testimony, and
                 Be held in convenient proximity of the local public  
               entity.

          V.  Approval or denial .  AB 155 requires CDIAC, in a  
          recorded vote on the date of the public hearing, to approve  
          or deny the local entity's request.

          AB 155 authorizes the Commission, if it approves a request,  
          to order the entity, as a condition of approving the  
          request, to limit the nature and extent of relief provided  
          through Chapter 9 bankruptcy proceedings, including:
                 Limiting changes to a contract,
                 Prohibiting the abrogation of contracts, and
                 Limiting the amount of relief to ensure the  
               protection of debt service payments.

          If CDIAC disapproves a request, AB 155 requires the  
          Commission to adopt specific findings that address the  
          deficiencies of the application.  If CDIAC denies its  
          request, a governing board of a local public entity may  
          reapply for approval by adopting another resolution and  
          submitting documentation to address the deficiencies  
          identified by the Commission.

          VI.   Additional provisions  .  The bill requires CDIAC's  





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          executive director, after the Commission receives a local  
          public entity's request for review and approval of a  
          bankruptcy filing, to record the costs incurred by CDIAC in  
          conducting an evaluation of and holding a hearing on the  
          request.  The director must report those costs to the  
          Commission at its next regularly scheduled hearing.  Upon  
          denial of the request, the director or Commission may  
          assess the requesting entity a fee to cover some or all of  
          CDIAC's costs.  Fee revenue must be deposited in a  
          specified fund.

          AB 155 allows CDIAC to propose regulations to govern the  
          request and review process enacted by the bill.

          AB 155 states that, in enacting the bill, the state assumes  
          no new or additional fiscal responsibilities for local  
          entities that may apply to CDIAC for review.

          The bill requires the State Treasurer to temporarily  
          replace a local government finance officer serving on CDIAC  
          who is employed by an entity requesting CDIAC's approval to  
          petition for bankruptcy with another local government  
          representative who meets the qualifications for membership  
          on the Commission.

          The bill contains extensive legislative findings and  
          declarations regarding the interdependence of state and  
          local finances and the state's interest in various impacts  
          of municipal bankruptcy.

                                     Comments  

          1.   Compelling state interest .  Municipal bankruptcy's  
          broad and significant impact on residents within the  
          bankrupt entity's jurisdiction, on other local government  
          entities, and on the state necessitates state oversight of  
          local public entities' bankruptcy filings.  Because local  
          and state finances in California are inextricably linked,  
          the state has a direct interest in the fiscal health of its  
          local governments.  A municipal bankruptcy can have  
          statewide repercussions, including higher borrowing costs  
          for other local entities and the state.  The state also has  
          a compelling interest in ensuring the validity and  
          enforceability of contracts negotiated through the  
          collective bargaining process, which provides the  
          foundation for positive and stable labor relations.  The  





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          review process authorized by AB 155 could help local  
          officials find alternative strategies to address short-term  
          fiscal challenges in ways that avoid the broad and lasting  
          spillover effects of municipal bankruptcy.  AB 155 follows  
          a model used successfully in other states to protect the  
          interests of a broad coalition of stakeholders who are  
          impacted by municipal bankruptcies.

          2.   Local control  .  By authorizing CDIAC to either deny, or  
          impose conditions on, a local public entity's bankruptcy  
          filing, AB 155 critically undermines local officials'  
          discretion in responding to fiscal crises.  Local elected  
          officials are directly accountable to residents within  
          communities affected by a municipal bankruptcy.  As a  
          result, a decision to enter bankruptcy is a last resort  
          that those officials do not take lightly.  High legal  
          costs, damaged credit ratings, and a lasting stigma that  
          can deter investment and growth in a community all weigh  
          heavily against a decision to authorize a bankruptcy  
          filing.  The principal benefit of federal bankruptcy is the  
          automatic stay of financial obligations which allows a  
          local entity some breathing space to formulate a debt  
          readjustment plan that is consistent with the fiscal  
          interests and priorities of the local community.  Allowing  
          CDIAC to deny, or limit, a local entity's bankruptcy  
          restructuring could place the burden of fiscal recovery  
          solely on cuts to public services, which might not reflect  
          local residents' priorities.  The Committee may wish to  
          consider whether AB 155 constitutes an unjustifiable  
          intrusion into local affairs.

          3.   What's changed  ?  Local officials have used municipal  
          bankruptcy protection sparingly during the 70 years that it  
          has been available to local public entities in California.   
          Only three general purpose governments have filed for  
          municipal bankruptcy protection: Orange County (1994), the  
          City of Desert Hot Springs (2001), and the City of Vallejo  
          (2008).  During the past decade, 18 local public entities  
          have filed for bankruptcy; more than half were small health  
          care districts.  This recent average of fewer than two  
          municipal bankruptcy filings per year from among the  
          thousands of local public entities in California may  
          reflect the substantial, inherent disadvantages of  
          resorting to bankruptcy.  Proponents of AB 155 argue that  
          this history of bankruptcy filings and the inherent  
          disincentives are not reliable indicators of future  





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          behavior.  The immense fiscal challenges now confronting  
          many local governments and the precedent set by Vallejo's  
          bankruptcy may open the door to more widespread, and less  
          responsible, use of bankruptcy protection in the near  
          future.  The Committee may wish to consider whether these  
          potential changes to the frequency and purpose of municipal  
          bankruptcy filings justify the changes that AB 155 makes to  
          the state's long-standing municipal bankruptcy statute.

          4.   What happens next  ?  It is unclear what might happen  
          after CDIAC denies a local public entity's request to file  
          for bankruptcy, or imposes conditions on a bankruptcy  
          filing that make restructuring impossible.  As mentioned in  
          Governor Wilson's veto of the 1996 Kopp bill, some  
          opponents of state oversight of municipal bankruptcy argue  
          that a denial of eligibility for bankruptcy "could raise  
          questions of liability of the state to creditors of the  
          public agency."  However, there is no evidence that this  
          theoretical concern has, in fact, become a problem in  
          states that block access to municipal bankruptcy.   
          Regardless of whether the state may incur legal liability,  
          it may face heightened political pressure to provide fiscal  
          assistance to a local entity that can't seek bankruptcy  
          protection.  Legislators may feel obligated to intervene to  
          ensure that an insolvent local entity doesn't stop  
          providing vital public services.  The Committee may wish to  
          consider whether the state oversight authorized by AB 155  
          to protect limited state interests could result in expanded  
          state obligations to struggling local entities.


                                 Assembly Actions  

          Assembly Local Government Committee:  4-3
          Assembly Appropriations Committee:12-5
          Assembly Floor:                    47-25
           

                        Support and Opposition  (7/2/09)

           Support  :  California Professional Firefighters, CDF  
          Firefighters Local 2881, California Labor Federation,  
          California State Treasurer Bill Lockyer, AARP, American  
          Federation of State, County and Municipal Employees,  
          AFL-CIO, Association for Los Angeles Deputy Sheriffs,  
          California Alliance for Retired Americans, California  





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          Association of Highway Patrolmen, California Conference  
          Board of the Amalgamated Transit Union, AFL-CIO, California  
          Nurses Association, California Reinvestment Coalition,  
          California School Employees Association, California State  
          Employees Association, California State Firefighters'  
          Association, Inc., California Teamsters Public Affairs  
          Council, Consumer Federation of California, Engineers and  
          Scientists of California, Glendale City Employees  
          Association, International Longshore & Warehouse Union,  
          Kern County Fire Fighters Union, Inc., Los Angeles County  
          Probation Officers Union, Livermore-Pleasanton Firefighters  
          Local 1974, Los Angeles County Fire Fighters Local 1014,  
          Los Angeles Police Protective League, National Nurses  
          Organizing Committee, North Bay Labor Council, AFL-CIO,  
          Orange County Employees Association, Orange County  
          Professional Firefighters Association, Organization of SMUD  
          Employees, Peace Officers Research Association of  
          California, Production Strategies, Inc.,  Professional and  
          Technical Engineers Local 21, Professional Engineers in  
          California Government, Riverside Sheriffs' Association, San  
          Bernardino Public Employees Association, San Diego  
          Municipal Employee's Association, San Francisco Labor  
          Council, San Luis Obispo County Employees Association,  
          Santa Rosa City Employees Association, Service Employees  
          International Union, State Building and Construction Trades  
          Council of California, UNITE HERE, United Food and  
          Commercial Workers Union, Western States Council. 

           Opposition  :  Counties of Butte, Imperial, Nevada, Madera,  
          Orange, Riverside, San Luis Obispo, Yolo, Cities of  
          Antioch, Adelanto, Apple Valley, Atascadero, Arvin,  
          Bellflower, Belmont, Benicia, Berkeley, Beverly Hills,  
          Blythe, Brea, Burbank, Burlingame, California City,  
          Calistoga, Carmel-by-the-Sea, Carson, Carlsbad, Chowchilla,  
          Clayton, Cloverdale, Clovis, Coalinga, Commerce, Concord,  
          Cotati, Covina, Cypress, Danville, Diamond Bar, Dixon, El  
          Segundo, Encinitas, Exeter, Fairfield, Fontana, Fountain  
          Valley, Fowler, Fremont, Fullerton, Glendora, Greenfield,  
          Guadalupe, Hanford, Healdsburg, Hermosa Beach, Highland,  
          Hollister, Hughson, Huntington Park, Huntington Beach,  
          Irvine , Kingsburg, La Palma, La Puente, La Verne, Laguna  
          Hills, Lake Forest, Lafayette, Lathrop, Lawndale, Lemoore,  
          Lindsay, Livermore, Long Beach, Madera, Mammoth Lakes,  
          Manhattan Beach, Manteca, Merced, Mendota, Mill Valley,  
          Modesto , Moreno Valley, Murrieta, Napa, Newport Beach,  
          Norco, Norwalk, Oakdale, Oakland, Ontario, Oroville,  





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          Palmdale, Palo Alto, Paradise, Patterson, Pinole,  
          Placentia, Pleasanton, Pomona, Rancho Cordova, Rancho  
          Cucamonga, Reedley, Ridgecrest, Rialto, Rio Vista, Rohnert  
          Park, Rolling Hills Estates, Rosemead, Salinas, San  
          Francisco, Sanger, San Luis Obispo, San Marcos,  San Pablo,  
          Santa Cruz, Santa Maria, Santa Rosa, Seaside, Sebastopol,  
          Shafter , Signal Hill, Stockton, Tehachapi, Torrance,  
          Tracy, Tulare , Tustin, Vacaville, Villa Park, Visalia,  
          Walnut Creek, Wasco, West Hollywood, Westminster, Windsor,  
          Woodlake, Yorba Linda, Yountville, and Yucaipa, Association  
          of California Health Care Districts, Association of  
          California Water Agencies, California Contract Cities  
          Association, California Society of Municipal Finance  
          Officers, California State Association of Counties,  
          California Special Districts Association, Howard Jarvis  
          Taxpayers Association, League of California Cities, League  
          of California Cities Inland Empire Division,  League of  
          California Cities Orange County Division, Marin County  
          Council of Mayors and Councilmembers, South Bay Cities  
          Council of Governments.