Carryover Bills

(from Maine Townsman, December 2005)
By Kate Dufour, Legislative Advocate, MMA

As the January 4, 2006 reconvening date of the Second Regular Session of the 122nd Legislature quickly approaches, legislators, state agency representatives and interested parties are busily preparing to get down to business. Legislative committees are meeting to work on the 233 bills that were carried over from the first session in 2005; the Legislative Council has admitted 207 “emergency” bills to be introduced in the second session; and tasks forces, working groups and special commissions are finalizing recommendations and drafting the reports due back to several of the Legislature’s Joint Standing Committees.

What follows are descriptions of some of the several carryover bills and study groups MMA staff has been monitoring.

LD 70, An Act to Amend the Laws Governing the Funding of Special Elections. This bill would require the state to reimburse municipalities for the direct costs associated with holding a statewide “special election”. An example would be scheduling a vote on a bond package in June of an odd-numbered year when there would be no primary election. The municipal costs of such an off year election are half a million dollars. LD 70 was one of the eight bills on MMA’s 2005-2006 legislative agenda. Although the Legal and Veterans Affairs Committee unanimously endorsed an amended version of the bill, in the final days of the legislative session last June, the Appropriations Committee voted to table and carry over the bill into the second session. We urge municipal officials to talk to their legislators and ask them to support LD 70.

LD 168, An Act to Establish a Statewide Residency Requirement for General Assistance. This past session the Health and Human Services Committee heard public testimony on a bill seeking to implement a 30-day residency requirement before any person could apply for General Assistance (GA) in any municipality. Although a majority of the Committee voted “ought not to pass” on the bill, the Committee members felt that the issues raised at the public hearing needed further discussion and directed the GA Working Group, which is made up of municipal officials, state officials and advocates for people of low income, to explore standards for GA eligibility when an applicant previously abandoned a valuable public assistance resource.

In response to that charge, MMA and a group of GA administrators drafted a proposal to address the abandonment of available resources issue. The proposal would hold all GA applicants, both “initial” applicants and “repeat” applicants, accountable for utilizing available resources. Available resources would include any state or federal assistance program (including housing, employment, unemployment benefits, etc.) or the services, commodities and facilities made available by private organizations. An applicant who abandons or refuses to use an available resource without just cause would become ineligible to receive general assistance to replace the abandoned resource for a period of 120 days. An applicant who forfeits receipt of or causes a reduction in benefits from another public or private program because of fraud, misrepresentation or an intentional violation of program rules without just cause would become ineligible to receive general assistance to replace the forfeited assistance for the duration of the forfeiture. The proposal also includes a list of the circumstances under which the GA administrator would be required to find just cause and provide assistance.

Although the goal of the proposal was to ensure maximum accountability in the GA program, several members of the working group, primarily those advocating on behalf of or representing the interests of GA recipients, opposed the proposal for a number of reasons. First, the advocates are concerned that the proposal would cause a reduction in the GA benefits provided to applicants, which could result in someone going homeless or hungry. Second, the advocates do not believe there is any statistical data available illustrating the need for the change. The advocates are not convinced that people necessarily abandon resources when moving between states or municipalities. Third, the advocates are concerned that the proposal would unfairly hold “initial applicants” accountable for adhering to eligibility standards they know nothing about. Fourth, the advocates believe that the “punishment” of a loss of GA resources does not fit the “crime” of abandoning resources, particularly when an applicant could be in danger of becoming homeless or hungry. Finally, the advocates question whether the GA administrators in Maine’s smallest communities would be able to uniformly and accurately implement the available resources proposal.

Although this process has been extremely trying, it has been a true learning experience. The advocates on the working group have been very clear about their low opinions regarding the ability of smaller municipalities to administer the GA program. Based on this impasse, it is anticipated that the report back from the GA Working Group to the Health and Human Services Committee will be divided, with MMA and the welfare directors supporting a minority report that includes a continuing discussion on the available resources proposal.

LD 286, Resolve, Directing a Review of Comprehensive Planning and Growth Management in Maine. LD 286 was technically not a carryover. The original bill was defeated and a resolve to study the general issue of the State Planning Office (SPO) and comprehensive planning was enacted instead. The original bill would have eliminated SPO and reassigned its duties to other state agencies. The bill was amended by the State and Local Government Committee, and passed by the Committee, such that it would have only eliminated SPO’s review of comprehensive plans. This amended bill was then reassigned to the Natural Resources Committee which then killed the bill and passed this resolve to study the issue.

The resolve calls for another assessment of SPO and comprehensive planning in Maine. The review of comprehensive planning and SPO has become an almost annual event. This particular iteration of the review has had two major elements. The first was a two-day “summit” convened in Orono at the University of Maine. The format was a bit unusual in that the attendees rather than SPO chose the topics to discuss. SPO’s notes of that meeting are available online at ( http://www.state.me.us/spo/landuse/whatsnew/review.php). The second major element was a series of focus group discussions facilitated by the private research group Market Decisions. Summit attendees and focus group participants have included planners, municipal officials, environmental activists and developers.

As a result of the summit and the focus groups, SPO has identified three issues that should receive further review and possibly legislative attention. These issues are: (1) regional planning, (2) technical assistance to municipalities and (3) flexibility and streamlining the process. The full report with recommended legislation is not due to the Legislature until February. Thus, we don’t yet have a more complete understanding of what the actual recommendations will do. The issue is whether the recommendations are bold and meaningful or if they are just more tinkering with a process that so many agree is badly broken.

LD 925, An Act to Fairly Apportion the Cost of Sheriff Patrol Services. This bill, crafted on behalf of Maine’s Service Center Coalition, would have changed the way rural patrol services are funded. The bill would have required all routine patrol services provided by a county sheriff’s department to be paid by the municipality requesting the service through contracts with the county. Currently, the cost of rural patrol is paid for by all municipalities in the county through the annual county tax assessment. At its October 3 rd meeting, the members of the State and Local Government Committee voted unanimously “ought not to pass” on LD 925. According to the Committee’s discussion at that time, the decision to oppose the bill was based at least in part on the fact that MMA’s Service Center Community / Rural Community Working Group was in the process of studying the issues raised in the bill.

The Service Center Community / Rural Working Group was created by MMA’s Legislative Policy Committee (LPC) in response to the negative reaction MMA’s membership had to LD 925 and a similar bill, LD 249, which was originally supported by the LPC. Several municipal officials objected to the concept found in both bills that would amend the way a county’s sheriff patrol is funded. MMA’s Executive Committee and Legislative Policy Committee quickly came to the conclusion that more discussion on this issue was necessary. Guided by the need for more exploration, the Service Center Community/ Rural Community Working Group was created. In a nutshell, the working group was charged with exploring and developing recommendations to address the different challenges urban and rural communities face, with a particular focus on the disparity in property tax rates that often exists between urban communities and their suburban and rural neighbors.

After meeting for several months, the Working Group issued its first report in June. One of the proposals in the report called for a study to explore the possibilities of assessing a wider variety of county costs to municipalities on the basis of use rather than assessed value. The working group charged MMA staff to work collaboratively with county officials to determine the impact changing to a use-based system would have on all municipalities in a county. Staff was further directed to target the study to county public safety services, including the district attorney’s office, sheriff’s office, jail budgets and emergency communications. Although it is fair to say county officials are concerned with the ramifications of the study’s findings, the county officials involved with the Working Group agreed in October to provide MMA staff the necessary data to form the basis of a comprehensive analysis. Thus far, MMA has received the necessary information only from Penobscot County.

LD 1045, An Act Regarding Contract Indemnification. This bill was primarily sponsored by the construction industry. Currently, some construction contracts, including municipal construction contracts, require the contractor to reimburse the property owner (e.g. the municipality) for costs related to construction worker injuries. In some instances an injured worker is not satisfied with his workers’ compensation award and files a lawsuit for more money. The property owner is typically named as a defendant. Since the property owner frequently has little or no control over the property during construction, owners seek to be fully compensated for any lawsuit-related costs, even if the property owner can be construed as a cause of the worker’s injury.

It is not clear why this bill is needed. If the property owner requires the contractor to cover the owner’s lawsuit costs, the contractor can just build-in those extra costs into the contract price. Contractors don’t work for free. Thus, the issue is not whether the contractor pays for the property owner’s negligence, but instead, how does the property owner pay for his own negligence. The property owner can either pay directly, by being subjected to the lawsuit costs, or indirectly through a higher contract price. The direct route is not efficient or beneficial to anyone except lawyers. So, why mess with the current system? It is still a mystery why the bill is needed.

LD 1297, An Act to Provide Just Compensation for Established Business During Eminent Domain Proceeding. This bill was primarily driven by the Maine Oil Dealers Association, but received support from others, including the Maine Auto Dealers Association. As drafted, the bill would increase the amount of compensation a business would receive if its property were taken by eminent domain. Currently the “just compensation” required to paid under the constitution only includes the value of the real property. The bill would expand the definition to include ‘business value.”

The bill raised some complex issues that needed further review. Several meetings have been held including representatives of the above groups, the Maine Department of Transportation, the Maine Turnpike Association and MMA.

The redrafted bill will essentially have three elements. First, it seeks to include in the “just compensation” award damages to a company’s “goodwill.” This award will only be available to businesses that have been in existence for four years or more and that must be relocated as a result of the property taking. Goodwill is typically used to refer to the positive reputation that a business has in the community resulting in a loyal customer base. Goodwill might be negatively impacted if the business is forced to relocate to a less desirable spot or if the business is closed for too long during the move. While it is possible to calculate an estimate of the dollar value of goodwill, it is complicated.

Second, the redrafted bill seeks to both increase existing relocation benefits that the Maine DOT must provide to businesses that are relocated and to require municipalities to pay those relocation benefits. The benefits have three components: funding for the company to search for a new location (e.g., paying for a real estate broker), assistance in that search, and funding for costs associated with relocation (e.g., new letterhead). The amount the Maine DOT is obligated to pay for these benefits is capped in statute. The bill will increase those statutory caps which have not changed in at least a decade and apply them to certain municipal takings.

Third, there is an intermediate procedural step for Maine DOT takings that does not exist for municipalities. This step is a review by the Maine Claims Commission. The redrafted bill may include a requirement that municipal takings also get reviewed by the Claims Commission prior to being appealed to the more formal judicial system.

LD 1369, Resolve, Directing the Intergovernmental Advisory Group to Review Unfunded Mandates. With the enactment of LD 1369, the 19-member Intergovernmental Advisory Commission (IAC), previously created by the Legislature, was charged with an important task. This permanent commission consisting of representatives from all levels of government was asked to develop a comprehensive list of municipal mandates and identify the cost and the problems associated with the most burdensome. The IAC was also charged with submitting its findings and recommendations to the State and Local Government Committee and Legislative Council by November 2, 2005.

The IAC was made aware of this task during its September retreat, and the members decided to schedule its discussion of the bill for their October meeting. At that meeting the IAC set aside thirty minutes to tackle the charge. Sensing that the IAC could use some information, MMA presented the Commission with a list of mandates municipal officials had identified as the most burdensome. The report provided to the IAC organized the burdensome mandates into four different categories: 1) mandates with pending solutions, such as the special elections bill (LD 70) described above; 2) mandates needing immediate action, including state reimbursement for sand/salt shed projects and the overly prescriptive public garage storm drain requirements; 3) mandates needing further study, including the treatment of hazardous waste and transfer station location; and 4) county and school mandates, including state financial support for the cost of operating county jails and the dozens of educational mandates that directly impact school budgets.

After accepting the MMA mandate report, the IAC unanimously voted to extend the study by directing SPO staff to inventory individual state departments for the purpose of compiling a more exhaustive list of mandates to be examined. Although the IAC’s reaction to the mandate bill was anticlimactic for those looking for immediate results, MMA staff is encouraged by the Commission’s commitment to continue to identify mandates through a statewide study.

At its October meeting the IAC also finalized its list of immediate and long-term goals. The IAC’s most comprehensive long-term goal is to explore the possibility of merging the functions and management of the several regional services entities (i.e., counties, regional councils, planning commissions, multi-municipal utility districts, etc.) under a single regional service provider. A subcommittee of the commission has already met and had preliminary discussions on the feasibility of this type of merger. The subcommittee is currently exploring revenue sources and governance structures that would be necessary to support a new regional entity. It is anticipated that the subcommittee will begin to seek feedback on its draft proposal from all interested parties in spring and summer of 2006.

The ultimate goal is to create a regional government that is available to provide services to the state and local governments. Under the new system, it is envisioned that municipalities would be able to explore the cost or efficiency savings that could be achieved by shifting the provision of services to the new regional entity. So far, none of the discussions have suggested that municipalities would be mandated to relinquish its services; instead, the new regional government would be available as an additional option.

In order to achieve the larger goal, several intermediary steps must be taken. One of the first steps involves the standardization of data. In order to achieve that goal, the IAC has directed the SPO to work with interested organizations and government agencies to explore and develop legislation requiring all levels of government to have uniform charts of accounts. It is anticipated that legislation on the issue of uniform accounting will be submitted to the 123 rd Legislature in 2007. Another of the IAC short-term goals involves an initiative to restore the $2 million regionalization grant fund from dedicated surplus funds. The regionalization grants concept made its debut in 2003, as it was included in the MMA-supported Question 1A referendum, which was adopted by Maine’s voters in June 2004. The revenue for the fund comes from a 2% set aside of state revenue sharing funds that would have otherwise been distributed to municipalities for the purpose of providing municipalities assistance in their regionalization efforts. During the last Legislative session, the Legislature raided the Local Government Efficiency Fund to help balance the state budget.

LD 1377, An Act Regarding Municipally Owned Street Lighting. This bill resulted from the desire of municipalities to have more control over the provision of street lighting. Currently, the town essentially rents the lights from the local utility company and pays the utility for maintenance services. The bill as drafted would have clearly authorized municipalities to assume the ownership of existing lights that are in service within their community.

Several meetings were held primarily involving Central Maine Power Company, the Public Utilities Commission and MMA. The focus of those meetings was getting a better handle on what the towns currently pay for and why.

The bill as amended will seek to continue the review in a more formal PUC process. From the work over the summer, it continues to appear that there is merit in seeking to relax the current monopoly status that utilities have over street light services.

LD 1535, An Act Making Improvements to the Laws Regarding Local Land Use Ordinances. The carryover issue for this bill is rate of growth ordinances. The State Planning Office, while recognizing growth ordinances as legitimate land use planning tools, has traditionally been very wary of them and subjected them to strict review in the context of comprehensive planning. Municipalities often see them as very beneficial ordinances that should be encouraged rather than strictly reviewed.

A review process has never been spelled out in either statute or rule. The bill will hopefully lead to a clear review process that respects the local support for these ordinances.

LD 1592, An Act Regarding Disposal of Dredged Materials. Disposal of dredged materials is governed by either of two federal laws depending on where the disposal takes place. The Maine Lobstermen’s Association filed LD 1592 following the disposal of some dredged materials in a manner that suggested to them that one federal law was more lax than another, creating an incentive to choose the less stringent locations. Following meetings with federal representatives of the Army Corps of Engineers and the Environmental Protection Agency those fears, while reasonable, do not seem to be justified. Both federal review processes are pretty stringent and the Lobstermen’s Association appears to appreciate the additional information that has been provided as a result of the carryover process.