THE

CITY

OF NEW YORK
OF THE MAYOR

OFFICE

NEW YORK, N. Y. 10007

PATRICK A. WEHLE
DIREt: fOR OF CI

rv

LEGISLATIVE

AffAIRS

May 30, 20}2

Michael McSweeney City Clerk of the Council 141 Worth Street New York, NY 10013 Dear Mr. McSweeney: Transmitted herewith are the bills disapproved by the Mayor. The bills are as follows:

Introductory Number 658-A
A local law to amend the administrative code of the city New York, in relation to the waiver of public employee organizations' rights when submitting grievances to arbitration under the New York city collective bargaining law.

Introductory Number 251-A
A local law to amend the administrative code of the city New York, in relation to requiring the payment of a living wage to employees employed on property developed by recipients of tinancial assistance for economic development.

Introductory ~umber ..J85-A
A local law to amend the New York City chater, in relation to the evaluation of depository banks.

&~
Patrick A. Wehle cc: Honorable Christine C. Quinn

Sincerely,

THE

CITY

OF" NEW

YORK

OF"F"ICE

OF" TH E MAYOR 10007

NEW YORK, N.Y.

May 30,2012

Hon. Michael McSweeney City Clerk and Clerk of the Council 1-1-1 Worth Street New York. NY 10013 Dear Mr. McSweeney: Pursuant to Section 37 of the New York City Charter. I hereby disapprove Introductory Number 658-A. which would amend the New York City Collective Bargaining Law "in relation to the waiver of public employee organizations' rights when submitting grievances to arbitration under the New York city collective bargaining law." This bill would all but eliminate the longstanding statutory waiver requirement that is codified in the City's Collective Bargaining Law found in § 12-312( d) of the Administrative Code. In 1967. the New York City Collective Bargaining Law was enacted as a result of recommendations of a Tripartite Committee consisting of representatives of municipal unions, the City, and impartial members representing the public. It was an historic collaboration that retlected a carefully and delicately structured statutory compromise among the interests of the public, labor groups. and City agencies. One component of this historic legislation was a requirement that. in order for an employee to invoke the contractual grievance arbitration before the Office of Collective Bargaining, a waiver must be tiled of the right to seek review of the underlying dispute in any other forum. In other words, an employee has always had a choice of remedies and may avail him or herself of the usual statutory rights or impartial arbitration. but not both. This was the original understanding and intent of the waiver requirement at the time of the first enactment of the New York City Collective Bargaining Law. In accordance with this sound policy, the waiver requirement of the New York City Collective Bargaining Law has remained unchanged since the law was enacted in 1967. It is noteworthy that over time. courts have recognized that the waiver is inapplicable to civil rights claims. Now, however. Introductory Number 658-A seeks to etfectively eliminate the waiver requirement by limiting it to contractual claims only. This amendment would render the provision functionally meaningless, and would permit a union or employee to pursue

l

simultaneously an arbitration based on the collective bargaining agreement and a court case based on a statutory or other legal claim concerning the same dispute and interposing the same issues. This will invite inconsistent decisions, outcomes and orders, and will result in unnecessary litigation and a waste of judicial resources. The language of the existing law does not prevent an employee or union from exercising their respective rights in either forum. It simply requires that, where the underlying dispute is the same, the employee or union make a choice between arbitration and court. This statutory scheme has served labor unions and City employers well for the past forty-five years and should not be disturbed. For the foregoing reasons, I hereby disapprove Introductory Number 658-A. Sincerely,

~R~~~
Michael R. Bloomberg Mayor Cc: The Honorable Christine C. Quinn

- :2 -

Proposed

Int. i':o. 658-;\

By Council Members Sunders, James. \Villiams,:.m.Wl,,!1. ~-:,,""'l, L:'-;) .. ,,'E',"_ .... !'~',L ,:."".\. l\.\CL'(Y \l""'~ VI,.I

Lr.l(lJIll, 5c:":....~rnl.:\<.. C'~"'WCJ'""O , {S()t'"n..(, } 1
L~l

.-\ LOCAL L~\ W To "mend the administrative code of the city of New York. in relation to the waiver of public employee organizations' rights when submitting grievances to arbitration under the New York city collective bargaining law. Be it ~nacted by the Council Section
recent litigation

as follows: of legislative in a judicial tindings and intent. The Council decision hereby finds that

1. Declaration
has resulted

which holds that. when a public employee pursuant to a collective bargaining organization of

organization

tiles a waiver to submit a grievance

to arbitration

agreement which the organization

has with a public employer. or judicial

the public employee

waives its right to bring other administrative other statutes or rights not contained that such a result longstanding is contrary

actions to address agreement.

alleged violations

in the collective

bargaining

The Council finds Bargaining's

to the New

York City

Office of Collective

interpretation

of the local law. The Council further finds that such a result unfairly organizations and the members they represent and that no is therefore waives

prejudices the City's

public employee

similar waiver requirement

exists in the New York State Taylor Law. Legislation in order to clarify that a public employee dispute under the collective to arbitration

necessary to rectify this disparity, \'Illy its right
10

organization bargaining

suomi t an alleged contractual it submits

agreement

ind no other right when

a grievance

at the New York City Office of

Collective

Bargaining.

~ 2. Subdivision

J t)t' section 12-312 of the administrative

code of the city

01" ~I!W

York is

.nucndcd to rcud as follows: ,.1. As a condition to rhe right of 1 municipal employee
l'rgallil:;llion (\) invoke impartial

arbitration under such provisions, the grievant or grievants and such organization shall be required to file with the director a written waiver of the right, if any, of said grievant or grievants and said organization to submit the [underlying dispute] contractual dispute being alleged under a collective bargaining agreement to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator's award. This subdivision shall not be construed to limit the rights of any public employee or public employee organization to submit any statutory or other claims to the appropriate administrative or judicial tribunal. § 3. This local law shall take effect immediately.

LS 2659

MWC
~/I0I12 7:
I

I hereby eertify that the above bill was passed by the Counell of the City of New York on 'Jr.~l.k . .:I.'h'.~~/~ ••reeeiving the following votes:
Affirmative _

:,/ri'
1 .{. •••••••••

.

Negative
Not Voting ••••••••••• ~

.

AIlsa Fuentes, Deputy' City c~~rk ~

of the CaUDell. ~ ..

-

DISAPPROVED
ON THE ~DAY /~~,~YOR OF ~
~C)~

THE

CITY

OF

NEW

YORK

OFFICE

OF THE

MAYOR 10007

NEW YORK. N.Y.

May 30.2012

Hon. Michael McSweeney City Clerk and Clerk of the Council 141 Worth Street New York. NY 1001,3 Dear Mr. McSweeney: Pursuant to Section 37 of the New York City Charter. I hereby disapprove Introductory Number 251-A. which would amend the Administrative Code of the City of New York "in relation to requiring a living wage to employees employed on property developed by recipients of financial assistance tor economic development." Introductory Number 251-A would impose a wage mandate tor those employed in connection with property or projects developed by recipients of at least $1 million in discretionary financial assistance from the City or a "city economic development entity" tor the improvement or development of real property, economic development. job retention and growth or "other similar purposes", Employers would be required to maintain extensive records and to report on hours. wage and benetit information for all such employees, involving onerous requirements and potential penalties that will additionally discourage companies from participating in any City programs that involve financial assistance. Passage of this bill will threaten some of the City'S most innovative and important economic development projects - the types that have stabilized and revitalized neighborhoods in all five boroughs, Furthermore. Introductory Number 251-A seeks to legislate in subject areas. and to assert jurisdiction over entities. that are governed by State law. Moreover. by prescribing business terms tor the acquisition and disposition of real property in contravention of the Charter. and by providing a prominent enforcement role to the City Comptroller, this proposal would upset the balance of powers. carefully crafted in the Charter. among elected officials.

.

.
The creation of well-paying, sustainable jobs has never been more critical to New York City residents and to the future of the City's economic health, which is why we have waged an aggressive ten-year campaign of job creation and workforce skill development that is designed to help expand economic opportunity for all New Yorkers. This has.been central to the strategy to power the City's recovery from the Great Recession, and it has yielded promising results. In 2011, businesses in New York City created new private-sector jobs at a rate that was approximately 55% faster than the nation as a whole. Furthermore, as of March 2012, New York City had gained back an encouraging 185% of private sector jobs lost during the recession, compared to merely 42% of those recaptured nationwide. Despite these results, too many New Yorkers remain unemployed and looking for work. One component of our ongoing comprehensive efforts involves incentive programs that attempt to reduce tax and other costs to encourage job-creating developments that otherwise would not occur. often in low- and moderate-income communities, or in challenging sectors of the economy such as the industrial sector. Our focus with .these programs is not on companies that have clearly established a competitive advantage and do not need any additional incentive to be here. but rather on those investments that are on the margins, where targeted support induces developers and businesses to make investments that would otherwise be tinancially unfeasible in New York City. Often, it means the difference between jobs gained and jobs that are created outside the City. or not created at all. This bill-which would increase the costs associated with development and investment by mandating higher costs for projects receiving financial assistance from the City-would offset the benefit provided by this assistance. It would make it harder tor companies-which have the option to do business anywhere-to make decisions to invest in New York. This bill is a risk to New York City's long-term economic competitiveness. Some projects that would create jobs may not move forward at all because they are no longer financially viable without the benefit of these incentives. This is particularly troubling tor industrial companies, which provide good-paying, high-quality jobs for hundreds of thousands of New Yorkers. This bill would make it more difficult tor these businesses to stay here and expand at a time when the City should be focused on supporting them. For projects that still do move forward, if the value of these incentives is offset, the increased cost of the projects will be passed along to others-either to taxpayers. in the form of making higher subsidies necessary to incentivize these types of projects, or to the end-userconsumers who will be faced with higher prices tor goods and services. Moreover. the penalties included in this legislation-such as recovering financial assistance tor non-compliance-would complicate potential lenders' ability to quantify the risks associated with a project. which in turn would make it more difficult tor projects that are already' tinancially challenging to access financing, or make financing more costly. This poses significant challenges tor companies in planning tor the future. and it could dissuade them from expanding and hiring in New York City.

·

,

The bill would also generate significant business and operational costs for not-tor-profit and cultural groups who, while themselves exempted from the legislation, would bear the burdens of the additional costs imposed on the contractors, vendors and consultants performing work on their premises. While this bilI could potentially result in higher wages for some workers, these increases would come at the cost of job creation. It also would reduce opportunities tor entry-level workers, because if employers are forced to pay higher wages, they will choose to hire fewer more experienced employees to economically justify the increased costs. I will not support a law that risks having the opposite impact of its intentions, distorting the market in such a way that would reduce opportunities tor those who most need them and force taxpayers to bear the burden. Apart from raising these important policy concerns, Introductory Number 251-A is legally Hawed tor several significant reasons. The biII is pre-empted by State and federal law in that it seeks to regulate wages. It defines categories of "living wage" work under circumstances that the State Legislature elected not to subject to wage requirements. These measures effectively amount to an effort to impose a regulatory minimum wage upon sectors of the City economy, a subject matter reserved to the State under applicable Court of Appeals case law. Moreover. the bill purports to set the terms under which the City may acquire an interest in real property or may dispose of real property tor development projects, thus improperly inhibiting the Mayor and executive agencies from dealing with other parties in real property transactions. This constitutes an improper infringement upon the discretionary powers of the Mayor and other officials involved in the land use review processes. By allowing the City Council to go beyond its prescribed role of reviewing land use decisions through processes specified in the Charter, the bill would unlawfully alter the balance among key City officials. By using broad definitions of terms such as "city economic development entity" and ..financial assistance". the bill appears to seek to cover projects aided by various entities created by State law to further goals such as affordable housing and economic development. To the extent that the bilI frustrates the purposes of such State laws or otherwise interferes with such programs, it would be pre-empted. Finally, the bilI improperly provides a major role in enforcement investigations to the City Comptroller. The Charter generally does not provide to the Comptroller this type of proactive role in investigations and enforcement given the role of the Mayor and his or her appointees in executing the laws. In prevailing wage mandates. the Comptroller's role has been authorized by the State Legislature, but that is not the case here. When I disapproved Introductory Number i8-A, which sought to establish new prevailing wage requirements tor certain employees in City-assisted economic development projects. I emphasized the need to strike the appropriate balance between improving the employment opportunities of the City'S workers and creating opportunities tor innovative economic development programs. Like that bill, this proposal also fails to strike such a balance and is both inconsistent with law as well as unsound from a policy perspective. The passage of

· '"
two similar bills in a short period of time raises serious concerns about the long-term ability of the City to continue attracting and generating the business activity that is necessary to support both the local economy and the services of local government. I respectfully urge the Council to reconsider the course that it has undertaken with these bills. Accordingly, I hereby disapprove Introductory Number 2SI-A. Sincerely,

~'~J
Michael R. Bloomberg Mayor cc: The Honorable Christine C. Quinn

Proposed Int. No. 251-/\ B~ Council Members Kl)PPl'l1. Palma. Brewer. Arroyo. Cabrera, Chin. Dromrn, Ferrcras, James. Lunder, Mendez, Sunders Jr., Murk-Viverito, Foster. Seabrook. Barron, Gonzalez. Ri\ era. Rodriguez. Vun Bramer, Vann, Williams. Rose. Jackson, Eugene. Levin, Mealy. t iarodnick. Gentile, ttrta Crowley (by the request of the Bronx Borough President) :\ Local Law to amend the administrative code or the city of New York. in relation to requiring the puyrncnt of a living wage to employees employed on property developed by recipients uf Iinuncial assistance for economic development.

Be it enacted bv the Council us follows: Section I. Chapter 1 of title 6 of the administrative is amended to add a new section 6-134, to read as follows: code of the city of New York

§ 6-134 Living Wagc for Employees in City Financially Assisted Workplaces.
a. This section shall he known as and may be cited as the "Fair Wages for New Yorkers Act". b. Definitions. lhe Illlluwing meanings:
(I)

For the purposes of this section. the following terms shall have

':City" means cit)' of New York, and all subordinate

or component

entities or

persons.
(2)

"City economic comomtion.

development

entity" means a local development

corporation,

not-for-prolit

public benefit corporation.

or other entity that provides or of small

~Idministers economic

development

benefits and with which the department

husincss services serves DOl of the
(3) ~C\\

as a liaison

pursuant to paragraph b of subdh ision one of section

York city charter. means the Comptroller of the cit) orNe\\ York and his or her

"Comptrolh!r"

I

_

p"rtnl·rship. other
1'01'111

assOl:iation,

jllint vt!nturc, limited

liabilit, company,

COU1uwtion or

all\'

of dlling business.

0) "Fimlllcial assistancc" means assistance that is prO\'ided to u linancial
assistance recipient fur the improvcment or development of real propert", economic

dc, clupmcllt, job retention and growth, or other similur purposes, and that is provided either (a) directl} by the city, or (b) indirectly by a city economic devdopment entity and

that is puid in wholc or in part by the city, and that at the time the financiul assistance recipient enters into a project agreement with the city or city economic development _entity is expected to have a total present financial value of one million dollors or more. Fimmcial 'Issistance includes, but is not limited to, cash payments or grants, bond tinancing. tax abatements exemptions or exemptions (including, but not limited to, abatements or

from real property, mortgage recording, sales and usc taxes, or the difference

between any payments in lieu of taxes and the amount of real property or other taxes that \\ ould have been due i I' the property were not exempted from the payment of such taxcs), lax incrcment financing, remediation tiling fcc waivers, energy cost reductions, environmental in the market value of building, land, or leases, or the cost for the benefit of a project subject to a project assistancc that is

costs, write-downs

or capital improvements agreement.

undertaken

Financial assistance

shull include onl), discretionary

!__1egntiated LJwankd by the cit\' or by a city economic dewlopment or im:lude as·of·right assistance, Industrial
ill1d

entity, and shall not

tux abatcments

or bl!llelits, such as thosc under the

Commercial

Abatement

Program. thl' J-SI Program. and other similar that is gi\'cn to all pl'rSllnS

l'fll!.!rams. :\n\' lax abatement,

credit. reduction or exemption

J

.,

b~')1l'lit~ l.!.lllLl't cornbinution of the two. The value DCdCII:rmined based on the promtcd hourly cost recci",:d b\' the emplowe.
10

llf

an\' health benefits rl'cein:J shall

the emplover of the health benelils

Beginning in 2013 and each war thcrealier, the living wage

Latcand the health henelits supph:ment rate shall be adjustcd based upon the tweh'cmonth pl.'n:entage increases, if any, in the Consumer Price Index tllr All Urban Consumers for Allltell1s and the Consumer Price Index for All Urban Consumers for \1eJical Care, respectivcly, (or thcir successor indexes, iran,,) as published by the Bureau of l.abor Statistics of the United States Department of Labor, based on the most rccenttwclve-month period for which data is available. Thc adjusted living wage rate

and heulth bencnts supplement rate shall each thcn be rounded to the nearest live cents. Such adjustcd rates shall be announced no later than January I of each year and shall become effective as the new living wagc rate and health benefits supplemcnt rate on April I of each year. For employees who customarily and rcgularly receive tips, the linnncial assistancc recipient may credit any tips received and retained by the employec towards the living wage rate. For each pay period that an employee's base cash wages and tips received total less than the living wage ratc multiplied by the number of hours worked, the Iinancial assistance recipient must pay the employee the difference in cash

( 10) "Not-for-protit

organization" mcans an entity that is either incorporated as a

not-Il>r-prolit corporation under the laws of thc state of its incomoration or exempt from li:deral income tux pursuant to subdivision c of sectiun Ii, I.' hundred one of the United States internal revenue cude.

5

Pl.I.r~-;l'~_!)r ~ktl'rmining wlll'ther _ of :lIn purent l'ntity,

Ull

emplowr qualifies as a small business, the revenues entities, and of any entitics o'\l1ed or cOlltrolh::dby

ur any subsidiar)

a elllllnlOn parent entity shall be aggregated. L~) :\nv otherwise covered employer that is a not-for-proHt organization.
(3)

Any otherwise covered employer whose principal industry conduded at the

project locution is manufacturing, as detined by the l'\orth American Indll.stry Classification System.
(4)

Any otherwise covered employer operating on the premises of a project

where residential units comprise more than 75% of the project area, and no less than 75% orthe residential units arc atl'ordab]c for families earning less than ]25% orthe area median income.
(5)

Any otherwise covered employer that is a grocery store participating in the

Food Retail Expansion to Support Hea]th (FRESH) program.
(6)

Any otherwise covered employer that is a construction contractor or a

building scrvices contractor, which shall include but not be limited to any contractor of work pert()rmed by a watchperson, guard, doorperson, building cleaner, porter, handvperson, janitor, gardener, groundskeeper, stationaQ' fireman, elevator operator and starter, or window cleaner.
(7)

Any otherwise covered employer, excepting a tinancial assist.mce recipient

\,110 c.xeclIh:d a project agreement and any entity with ,vhich such linancial assistance n.:cipient Cllntrm:ts or subcontracts, occupying or opcrtlting on the premises of property imprO\ ed or dc, c10ped within the geographical delineations described in the definition or
"Zone 3 Adjaccnt Dcvclopments," ,,,ithollt regard to whether or not the 'lpplicable proh:ct

7
/

GL:\

~ll'

crl'd employer shall maintain original payrull records I'lli'each or its

cmplovces rcllecting the days and hours worked, and the wages paid and bendits nw\'idcu ror su~h hours worked, and shall retuin such records for at least six years ailcr the \\ork is perlhrmed. Failure to maintain such records as rcguircd shall crc:lte a

rehutluble presumption that the covercd employer did not pay its el1lpluyc~s the ,..ages pnd bl'ncJits rcquired under this section. Upon the request or the comptroller or the city, the covcred employer shall provide a certified original payroll record.
(3) It shall bc unlawful for any covered employer to retaliate, discharge,

demote, suspend, tuke adverse employment action in the terms and conditions of employment or otherwise discriminate against any cmployee for reporting or asserting a ,'iolatil}l1of this section, lor seeking or communicating inlormation regarding rights conli!rred by this scction, for exercising any othcr rights protected under this section, or for participating in any investigatory, administrative, or court proceeding relating to this section. This protection shall also apply to any covered cmployee or his or her reprcsentative who in good faith alleges a violation of-this section, or who seeks or communicatcs information regarding rights confcrred by this section in circumstances whcre he or shc in good faith believes thi's section applies. Taking adverse employment action against an 1!1TIployec r his or her representative within sixty days of the employee o engaging in any llfthc aforementioned activities shall raise a rebuttable presumption or hu, ing Jone so in retaliation tor those activities. Any employee subjected to any action that ,'iolatcs this paragraph may pursue administrative remedies or bring u civil action as authorized pursuant to subdivision g of this section in a court of competent jurisdiction, [ Implementation and Reporting

I..)

W '1 h~ l:omptrolkr and til\!cit\' or cit\' ~conomic dc, 1•.'IOPI11~l1t cntitlll1at
~:\~cllt.:d the project agreement may inspect thl.!records maintained pursuant to paragraph ~ l)i'slIhdi\'ision e of this section to verify the certilications submilt~d pursuant to Pilli1gmph I of this subdivision.

8) rhe city or city economic development entity thut executed th\! projcct
~grceml'nt shall maintain for four years all certitieations submitted pursuant to this suhdivision and make them available for public inspection.
(5)

The city shall maintain a list of financial assistance recipients subject to

prokct ngreements that shall include, where n project agreement is targeted to particular ·rcnlproperty. the address of each such property. Such list shall be updated and published as onen us is necessary to keep it current. g. Monitoring. Investigation and Enforcement
(I)

The comptroller shall monitor covered employers' compliance with the

requirements of this section. Whenever the comptroller has reason to believe there has bCl.!n violtttion of this section. or upon a verified complaint in writing from an employec a or an employee's representative claiming n violation of this section. the comptroller shall conduct an investigation to determine the facts relating thereto. The nume of any ~mplo\'ee identified in a complaint shall be kept conlidl.'11tialas hmg as possible. and may he disclused only with the employee's l:onsent, provided, hmwver, that such consent shall not be required once notice is required to be given pursuant to paragraph -t of this subdi. ision. ror the' purpose of conducting investigations pursuant to this section, the cllmptrllller shull have the authority to obser\'c work being performed on the work site, to int~r\'iew employces during or alicr work hours, and to examine the books and n:curds

II

u!t Direct thl.:n:instat.:mcnt of. or oth.:r appropri.ul: relief fur, i.1I1\ person found
to huv
l'

hecn subje~tcd to retaliation or dis~ril1lination in violation of this sc~tion;
(l')

Direct pU\,l1lentof the sums withheld at the commenccment of the and the interest that has accrued thereon to the tinancial assistance n:ciph:nt;

investiuution

and
I

n

Declare ineligible to receive financial assistance or prohibit from opcmting as

a I.:l)\"er.:d I:l11plo)'.:ron the premises of a linancial assistam:e redpient or on real property improved or deydoped with financial assistance any person against Wh0111a tinal disposition has been entered it:Jtwo instances within any consecutive six year period determining that such person has willfully failed to pay the required wages in accordance with the provisions of this section or to comply with the anti-retaliation, recordkeeping. notice, or reporting requirements of this section.
(3)

In assessing an appropriate remedy, due consideration shall be given to the

gravity of the violation, the history of previous violations, the good faith of thc covered employer, and the failure to comply with record-keeping, notice. reporting, or other nonwage requiremcnts. Any civil penalty shall be depositcd in the city general fund.
(4)

Bd'orc issuing an order, determination, or any other disposition, the inayor or

his or h.:r designee shall give notice thereoe together \\ ith a copy of the complaint. which Ilotice shall he served personall\' or by mail on any person affected thereby. The mayor, \lr his or her designee, may negotiate an agrced upon stipulation of s~lllel11entor reti.:r the maller tn the oflice of administrative trials and hearim.!.sfor a hearing and disposition. Such covered employer shall be notified of a hearing date by thc oflicc of

IJ

e_rmidl.'J for b\- law. ruk, or contract, including, but not limited to: dedaring the !inancial assistance r~dpient who has committed a violation in default of the project aureelllent; imposing sanctions; or recovering from such covered employer the !inancial assistance dishursed or provided to such covered emplo\ cr, including but notlil11itl:d to n:Huiring repayment of any taxes or interest abated or deterred.
(8)

Except as otherwise provided by law, any person claiming to be aggrieved by

a violation of this section shall have a cause of action in any court of competent jurisdiction fhr damages, including punitive damages, and for injunctive relief and such other remedies as may be appropriate, unless such person has tiled a complaint with the comptroller or the mayor with respect to such claim. In an action brought by an employee, if tile court finds in favor or the employee, it shall award the employee, in uddition to other relief. his/her reasonable attorneys' fces and costs.
(9)

Notwithstanding any inconsistent provision of paragraph

8

of this

subdivision, where a complaint filed with the comptroller or the mayor is dismissed an aggricvcd person shall maintain all rights to commence a civil action pursuant to this c1mpter as ifno such complaint had been filed, provided, however, that for purposes of this puragmph the failure orthe comptroller or the mayor to issue a disposition within one ,"car of the tiling of a complaint shall be deemed to be a dismissal.
( 10) /\

civil action commenced under this section shall be commenced in

accordance with subdivision 2 or section 214 orthe New York civil practice law and ruh:s. ( II) No procedure or remedy set forth in this section is intended to be exclusive nr a prerelluisite for asserting a claim for relief to enforce any rights hereunder in a court

15

G.l_l]10n

~nt~ring into

ill1\"

ugrecm~nt to dc\'clup pl\lIJcrt\· for an cconomk

Jl'n:lopment project. the cit)' or city economic dcvdopmcnt entity shall submit to the ~ullncil a r~port detailing its efforts to provide living wage jobs. Such report shall inukate whether its agrl!ement with the economic developmcnt subsidy recipient mandutcd the payment of a living wage for any jobs created hy the prokct. If the ;1l=\rCl:ment includes such a mandate. the city or city economic development entity shall providc an analysis outlining the number of living wage johs anticipated to he created heyond those jobs for which a living wage is required pursuant to this section and a description of the applicable pcnalties if the wage requirement in the agreement is not ultimately fulfilled. If the agreement does not include sllch a mandate. the city or city economic dcvelopment entity shall ex.plain why such an agreement could not be reached.
(3)

The city shall submit to the council and post on the city's website by January

31 of eaeh year a rcport detailing the extent to which projects that receive Jinancial

assistance provide employees a living wage. Such reports shall provide, tor employees at each site covered by the project in the categories of industrial jobs, restaurant jobs. rctllil jobs, und other johs, including all permanent and temporary full-time cmployees, pcnnum.'nt ,md temporaQ' part-time employees, and contract employces, the total number of cmplo\'l:es and the number and percentage of cmployees earning less than a Jiving wage, as that ternl is dclined in this section. Reports with regard to projects tor \\hich ,Issistance was received prior to July 1, 2012 need only contain slIch information required hv this paragraph as is available to the city, can b~ reasonabh d~rived from available sources, and can be reasonably obtained from the husiness entitv to which assistance was provi('h:d.

17

Section 2. Paragraph b of subdivision 1 of section UO I of the New York !.:it)'
charter is amended to read as follows: b. to serve as liaison for the city with local development lor-profit corporations dty. In furtherance and all other entities involved of this function. the department corporation in economic corporations, development other notwithin the

shall include in any contract with a corporation is

local development

under which such local development economic development

engaged in providing city and expending

or administering

benefits on behalf of the therewith, a requirement that

city capital appropriations corporation

in connection

such local development comptroller,

submit to the mayor, the council, the city presidents by January 31 of each year, a with regard to projected by such

the public advocate and the borough

report for the prior fiscal year in the form prescribed and actual jobs created and retained in connection local development corporation

hereunder

with any project undertaken

for the purpose of the creation or retention of jobs, of city capital appropriations. entity was provided if in

whether or not such project involves the expenditure connection development with such project assistance corporation to a business

by such local

in the form of a loan. grant or tax benefit in excess of one dollars, or a sale or lease of city-owned jobs. land where the project is

hundred fifty thousand estimated

to retain or create not less than twenty-the

The report shall be for the and any other documents

period commencing applicable

on the date that the project agreement

ro such project have been executed through the final year that Stich entity
for such project. except that, as to projects consisting of a lease or sale

receives assistance of city-owned regardless

land. each annual report shall include only ( 1) a list of each existing lease. and a list of each sale of city-owned land that

of when such lease commenced.

19

~WI11Pt

bonds: (\ i) the total number of employees 'It all sites covered b) the project at including the number of permanent full-time jobs, the and the number

the time of the project agreement

number of permanent part-time jobs. the number of full-time equivalents, of contract employee where contract employees determining compliance

may be included for the purpose of (vii) the number of

with job creation or retention requirements;

jobs that the entity receiving bene tits is contractually the lilt: of the project. except that such information for project agreements each reporting containing

obligated to retain and create over shall be reported on an annual basis and. for

annual job retention or creation requirements.

year. the base employment

level the entity receiving benefits agrees to any job creation scheduled to take place

retain over the lite of the project agreement, us a result of the project, and where applicable, reporting

any job creation targets for the current to date. of

year; (viii) the estimated amount, for that year and cumulatively

retained or additional tax revenue derived from the project. excluding real property tax revenue other than revenue generated by property tax improvements; assistance (ix) the amount of

received during the year covered by the report. the amount of assistance of the project period, and the present value of the future (x) tor the current

received since the beginning

assistance estimated to be given tor the duration of the project period; reporting year, the total actual number of employees including the number of permanent

at all sites covered by the project, part-time

full-time jobs. the number of permanent

jobs. the number of contract jobs, and. tor entities receiving benefits that employ two hundred lift) or more persons. the percentage of total employees und "nun-exempt" categories, respectively, within the "exempt"

as those terms arc defined under the United within the "non-exempt" category. the

Stutes fair labor standards

act, and tor employees

21

the remainder

ofthe project period: l(xi\')Hxv) and commercial

a list of all commercial incentive

expansion

program benefits, industrial
the project agreement

program benefits rcceiv ed through

und relocation

and employ merit assistance

program

benefits I<xv)j(x\'i) year. the local

received and the estimated
:t

total value of each for the current reporting indicating has reduced,

year:

statement

of compliance

whether. during the current reporting cancelled or recaptured

de\ cluprncnt corporation

benefits for any or recapture. and any

cumpuny, undo if so. the total amount of the reduction. penalty assessed and the reasons therefore; project
10;111.

cuncellution

[(xvi)J(xviil

for business entities for which corporation it) the form or a

assistance was provided

by such local development

grant or tax benefit of one hundred fifty thousand

dollars or less. the data should required lor all other loans,

be included in such report in the aggregate grunts or tax benefits; and [(xvii)]Cxviii) numbers of jobs. For projects information corporation such project that business in existence

using the format

an indication

or the sources of all data relating to date of this local law,

prior to the effective

entities were not required to report to such local development and any other documents in the report. due date and shall beur the actual explaining any applicable to

at the time that the project agreement
\WI"I.!

executed

need not be contained

l'hc report shall be submitted date that the report "as submitted.
delay in its submission

by the statutory

Such report shall include a statement due date. Upon its submission, form on the website

past the statutory

the report shall

simultaneously
development

be made available
corporation

in electronic

of the local

or. if no such website is maintained, that reports submitted available

on the website of the city be

.ol

:'\C\\

Y urk. provided

in 2012 or after shall simultaneously database

made

,I' ailable

in a commonly

non-proprietary

format un the website

of the local development corporation or. if no such website is maintained, on the website ofthe city of New York, except that any terms and restrictions on the use or resale of city-owned land need not be included in such non-proprietary database format, and provided further that with respect to the report submitted in 2012 in the commonly available non-proprietary database format, the local development corporation shall include, in such format, the data included in the reports for the period from July 1, 2005 to June 30, 2010. Reports with regard to projects for which assistance was rendered prior to July 1, 2005. need only contain such information required by this subdivision as is available to the local development corporation, can be reasonably derived from available sources. and can be reasonably obtained from the business entity to which assistance was provided. Section 3. This local law shall take effect in ninety days after its enactment into law.
• _ 1 •• •• .,

SKM 4/20112

I hereby certify that tl!-e above.,bID was passed by the Councll of the City ~f New York on J:(~,~~I.~receiving the following votes:

M'~-'..

................................

-

-

..

DISAPPROVED
ONT~a?X' DAYOr&
~OR
24

;.f/<

,

THE

CITY

OF

NEW

YORK

OFFICE

OF THE

MAYOR 10007

NEW YORK. N.Y.

May 30, 2012

Hon. Michael McSweeney City Clerk and Clerk of the Council 141 Worth Street New York. NY 10013 Dear Mr. McSweeney: Pursuant to Section 37 of the New York City Charter, I hereby disapprove Introductory Number 485-A, which creates a Community Investment Advisory Board ("Board") within the Department of Finance. The bill is a misguided attempt to influence who banks serve and how banks serve them by overlaying extensive existing federal and State bank regulation with yet another layer of City regulation. The bill extends beyond the City's competence and legal authority and risks reducing the number of banks who are willing or able to do business with the City. Introductory Number 485-A requires the Board to evaluate banks that seek to do business with the City on whether they are meeting the financial and banking service needs of small businesses and low- to moderate-income individuals and communities throughout the City. The Board would be required to conduct a biennial "needs assessment" at the Census tract level, evaluating credit, financial, and banking service needs throughout the City with an emphasis on low- and moderate-income individuals and communities. and establishing "benchmarks" and "best practices" against which these banks are to be evaluated. The bill requires the Board to issue an annual report that would evaluate how each bank is meeting the needs identified in the assessment using the benchmarks and best practices established by the Board. In order to evaluate banks, the Board would seek mountains of data from each bank for each of the 2.168 census tracts in the City on eight broad categories ranging from charitable giving, to the maintenance of foreclosed' properties, to investment in affordable housing and economic development projects in low-income communities. The Board would specify in the annual report banks not providing all the information requested by the Board. The bill authorizes the Banking Commission to consider the Board's annual report evaluating each bank when determining whether a bank will be designated or re-designated as a deposit bank. Notably, the Board's

evaluation of banks does not address whether banks seeking to be designated are operating in a safe and sound manner or could appropriately safeguard City moneys. Importantly, neither the Department of Finance nor any other agency within the City government currently has any expertise in the complex kind of evaluations, articulation of "best practices" tor banks and bank supervision activities contemplated by the bill. In short, this bill adds an onerous and unnecessary third tier of regulatory oversight in an already heavily regulated area. Banks are currently regulated by federal agencies. including the United States Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the newly created Consumer Financial Protection Board, as well as the State Department of Financial Services. for New York State-chartered banks. If there is a view that current regulation is insufficient. the path to effective change is not to create a new, duplicative process, but rather to work with the existing regulatory agencies, which already have deep experience and expertise in this area. Moreover, State and federal laws preempt the City from regulating State and national banks in this manner. Introductory Number 485-A serves no proprietary purpose but instead impermissibly uses the City's power to designate banks and deposit funds in order to pressure banks into adopting certain practices with respect to core banking matters such as lending to small businesses, addressing the credit needs of customers. handling foreclosure proceedings, and providing "funding for housing. The bill also interferes with regulatory regimes established elsewhere in federal and State law, and gives the Board an improper measure of oversight over banks by authorizing the Board to obtain and examine bank records beyond those required by existing government regulators. The bill marks a stark departure from the statutory functions of the New York City Banking Commission and substantially revamps the framework within which the City, through the Banking Commission. reviews applications from banks seeking to do business with the City. Under the current framework, banks are designated based on various factors related to solvency, corporate well-being, and compliance with State and federal laws. The City, through the Banking Commission, also considers the federal and State Community Reinvestment Act C·CRA") ratings of banks seeking designation, and these ratings retlect a bank's record of performance in helping to meet the credit needs of a community, including low- and moderateincome neighborhoods. Already, no bank can be designated to hold City funds without at least a "satisfactory" CRA rating. Creating a new third tier of analysis on banks' community investment and service efforts by yet another review board at the municipallevel--outside of the City'S expertise-is duplicative and a waste of taxpayer resources. Furthermore, the Department of Finance would need to add a significant number of new statf members at taxpayer expense to support the functions and reporting requirements of the Board. The mandates within the bill signiticantly increase the complexity of bank reporting, risk sophisticated and qualified banks opting out of doing business with New York City, and add costs to banks that will likely be passed along to the very people we seek to help through tinancial empowerment programs. Introductory Number 485-A could particularly penalize smaller banks, which may not be able to comply with its extraordinary reporting requirements.

~1 ~

In addition. the volume and sophistication of City transactions mandate that some of the City's banking can be effectively done only by a few large national banks. This bill potentially jeopardizes the availability of such banks because one or more might simply opt out of competing for the City'S business. This would result in fewer options and undoubtedly increased costs as .competition dwindles, and would not serve the best interests of the City and its

taxpayers,
While I share the Council's concern that banks meet the credit, financial, and banking service needs of New York City's small businesses and residents, Introductory Number 485-A adds little to that goal. In contrast, we are actively working with the Council on a number of successful programs that are helping New Yorkers recover from the 2008 financial crisis. For example, the Office of Financial Empowerment within the New York City Department of Consumer Affairs and the Center for Economic Empowerment help low-income New Yorkers connect with financial services. Likewise, the New York City Department of Housing, Preservation and Development C'HPD") has established the Center for New York City Neighborhoods. which helps New Yorkers deal with single-family foreclosures. That initiative alone has resulted in nearly 2,700 loan modifications from the approximately 7,000 loan modification requests that were received. Moreover, HPD, in partnership with Speaker Quinn and this Council. launched the Proactive Preservation Initiative, which. identifies and rehabilitates financially-challenged multi-family properties in need of repair. HPD already shares this informationwith bank regulators to increase transparency and encourage lenders to take steps to improve distressed assets. In addition. the New York City Department of Small Business Services ("SBS") has worked with banks to expand credit tor small businesses throughout the City. This initiative created a Bank Advisory Council, consisting of ten partner banks that have already committed to a variety of initiatives to facilitate enhanced access to capital tor small businesses, including supporting an innovative partnership with the U.S. Export-Import Bank to increase support tor New York's exporting small businesses. SBS has been instrumental in furthering our goals of connecting small businesses with greatly needed capital, and those efforts have paid off SBS helped connect the City's small businesses with nearly $40 million in capital in 2011. almost double the amount in 2010. We should continue to work together to further our shared goals, and build upon the successes we have already achieved. For all the reasons stated above. Introductory Number 485A is not the means to achieve these goals. For the foregoing reasons. I hereby disapprove Introductory Number 485-A. Sincerely,

Michael R. Bloomberg

Mayor
Cc: The Honorable Christine C. Quinn
- _1 -

,

·.
By Counctl vlernl-crs \·.II\Il. Rccchi,i, vl.irk-Vivcrito. LlI1Jl.!r .. vrruyu, L\I1lUII.!. Ukk':l1s. lerrcras. Fidler. F osier. (;( -nzalcz, J .ickson. Koppel I. Koslowitz, \ II!IlJI.!L. RI!~ ,1;1. Riv era, Rose, S.mJl!rs Jr .. Seabrook. V.111 Br:1l11I!r.Williams. Wills. Dromm, Brewer. Eugene, Cabrera. Gentile, Rodriguez. Barron. Palma. Lunes, l.ev in. U.lrodnkk. Chin. Koo.x lcnly. ctfflPGn.:cntidd. q"d L}~Yh'uro .\ LOr. \L LA \V

1"0 .unend the ~I!W York City charter. in relation to the cv.ilu ..uion of depository
Be it I!nu\!ted OV thc l\Hlllcil as folio,,, s:
Section I. Chapter 58 of the New York City charter is amended

b.. nks. i

by adding

U IlCW

section

15~-l-;\ 10 read as follows:

§ 15~-l-A ,\ ilhin the department

(\lmmunity

in\'~stment

advisory bonrd. 1. ["here is hereby I!slablished in'il!stment ~ld"isory (ward,

an advisury bourd kno\\n as the community llmctillns:

\\ hkh shall pl.!rtorm the folluwing
4.l.

Conduct a needs asscssment website
011

cwry two yl!urs. the tirst of \\ hich SIUlli be publishl!d nn ~uch needs assessment th~
o.l

.the dl!partmcnt's

or bctore ~( ..rch 1, 101-l. (n conducting

homd shull (I) ..,\sess the credit, limmdul l particular I!mphusis
·llll

and bunking services needs thruughout indh iduals

the City \\ith

l\lw and l11odcmtc: income

.md communities.

bLlI1~LlnS

-

~..---

I~-

_-

-_

-

\

\

~--,

.lcplkntiun

fur dc~ignatiL," nr rc\.ksiunution

~lS~l deposit b~l1lk,~o\ ering the preceding, Ii:;~al \ C~lf,
(l)

\\hich (i) .1dJresscs how c~lch hank tlmt is desh.matcu as a deposit b~1llk pmsu.mt
\]1'

sccti,ln 15~~

the dMrter is Illeding

the needs idcnti Ih:d pursuant

to pumgmph

a

l)1'

this subdi\ isilln :lJ1cJ rchltive to the to

;;!lbdh ision 3 of this :icction. including an evaluution 1.'cnchm;1fks ~md best practices the necds assessment

of how e.lch bank perfurmed

~lpplh:.lble to such bunk as cstablishcd

hy the board pursuant (ii) identities \\ here

reLluired purslll.ll1t to purngraph u of this subdivision. past evaluations, \\ here applicable. .md meas

arcus of is J

impron:mcnt

from

improvement

m!CCSSUry,taking into a~Cllunt the informatiun
IIf

COIlCC.h:dby the bUi.lrd pursutlnt to subdivision hank' s l~lilure to rrov ide informatiun 3 of this section submitted thut is applicable

this seetilln.

(i ii) spccitic .. 1ly identities· any deposit t tn subdivision comments

reliliestcd

in \Hiting bv the bourd pursuant bank. liv) sllmml.lrizcs ~
l)f

to

s_w.:h deposit subdivision

'Hilten

to the hoard

purslli.mt to

this section and the role pli.lyed by such cumments;

and
\l

(v)

summarizl!s.

m

tabular rOml:!t. the data collected

bv the: hourd pursu.mt to ci.lragmphs

through g uf subdh ision

1_111' this sl.!ction. anu to the extent not dCl.!l11edcOlltiJcntial

or pruprh..'t:.lfy by the bank, paragraph

~. l'he ~I)md -~-~----

,11.111 ·":PIl..;ist III' ,:I:1ill n:.....rul-crs '.\111)- --.. _-- -- --------~ . ----------. ~.__---- ---:..--~-- "hail ;'1.': .hc .n.ivor Dr hi..; --._-

I'f 'icr --~-

"

industry

who -hnll

"I;!

.lcsiun.ued
~

hv the muvor.
\)1'

~\)mmissil}n~rs sh~11l"~r\ .;IM11:,er\1! ti)lIr ,cars assessments digible

tor th~ lluratinn

thdr knure.

rhe tlm:e

IlllOgO\

crtllTIcntal members

from the dnte ut' their ~lppuintment, l)r through the issuance of t\\O Ill!l!ds of subdivisiun huwever, I of this secthm, \\ hich~\ cr is longer, and he shall serye IIntil his or her

pursu .. t tu paragraph", m pruvided,

ii)r rcappointml.!nt;

that I.!aeh memper

lIuulitied SUI.!CeS~h)r appninh:d. is

;\ny v;leanq

m:curring l>th~r than by I.!xpiratilln of t~rm shall he

tilled in the same manner .. S the uriginal positiun was tilled for tht: lIn~xpired portion ufthe term. 1 :\ (embers shull s~rve ,..ithout compensation. sixty days uf th~ cffectivc date of the loeallnw iL_mJ)t:rforming its functions rhe members of the bO<1fdshall be appuinted within thnt·adlled this s~ctilm. I of this sectiun. the board shall

us set torth in subdivisiun

;,cek tu cullect and considl!r infonnutiol1 and hanking services needs throughout tnet, including

at the census tmct Icvcl, rc.lating tu the credit, tinuncial the City and the cxt~nt to whil.!h such needs are being tl) the extent applicablc, regarding cach lleposit

bllt not limited to, inHumation,

bunk's diil!"t:; In:

\

~. I.:l1llJuct ~onsuml:r l11urtg'lg~ assistance

outreach,

:;l:lth.:ll1l:nt cllnti:rcnc~s, .pre\\:ntion, and provide

,1I1d similar a~tiuns intlmn.ltion,

1'I:lating tu

anJ furl:dusur~

at the c~lmmunity hut not limiteu

~listrict level to the homu. relating to Illurtgm!e and foreclosure to, total number ~)f lonn:) serviced least sixty days Jelimluent, through and, ur u\\ncd nf

;lctiuns, including,

by thl! bunk, tuta) Illunhcr of 10.1I1sthat are at fnrcc10surcs ~ummenced, total Ilumber

tnt ..) numher

Dr
llr
10i.1I1

tL~rl'c1osurcs prcn.:nteu other mcchanisms,

loun moditkntion,

short sales, dl:l:Js in Ih:u uf ti.)fedosurc applications. total ntllnper of

totlll number

or loan muuitications
ll\ ... ~u n

muJifications

maJ~ i.lIld denicu, wld bank

properties donated llr sold at a discount; crtorts of tht! city; through activities including, but nut

t: partner in the community !LPositiwly impact
Ull

'development

the city and its cummunities

I,imitcu to, l'hilullthfllpic

\\lIrk ,1I1dcharitl.1ble giving: and

!\
l
• I

'

)J

I

I

..

subJh isiun 3 lJf this ~ectiun. ,md to til\! \.!."l\!nt not l.h:emcJ clJntiu\!nti.l1 or prllpril-t,lfv b\' th~

the \'e"lr prec\!Jing later than Dccember testify concerning

th~ isslIancl.! of the report. til\t:enth.

;\t

lei.lst thirty days ath:r such publication.
.1

but

Ill>

the board Sh.lll huld

public hearing at which the public may addressing

the efforts and \!xtcnt to \\hich the deposit bunks arc meaningfully the city.

the credit .md timmcial needs throughout

The hOi.lfd shall .1150 tuke '",rinen Clllllmcnts

tilr at Icast thirty days preceding such public heuring. 5. On nr befure ~brch on the dcpartment'') website. I.

~o13 and

on Uf before \larch

I, Z() 14. the hlHlru shall plIhlish

tllr each deposit

bunk, the informntilln

collt:ctell

purslIunt to

paragraphs a through_g of suhdh ision 3 nf this scction, anll.!u the cxhmt nDt del.!mcu clmtidcntiul
!Ir

propridafv

by the hunk. paragmph

h. summi.lrized at the

ClllllIII

lIni ty district.

borough. and

,

l~ ," ..;.

"'

1
1~

"
'.\ riling rrom time to time change the banks und trust companies thus designated. ..:ommissiun shall notity [he council within thirty days of n:ct:i\'ing
.111

I hI! bunking

application for Jt!signurion

I)r rt!dt!signation. and sholl also notity tht! council \\ithin thirty Jays of 'lppruving or denying :mch application nnd, if designation or redesignation was ucnied. the basis tor denial. §3. Paragraph (b) of subdivision 2 of section 1524 of the New York City charter is amended to read as follows: b. If the banking commission by a majority vote shall decide that a requirement or

condition contained in paragraph a of this subdivision has been violated utter giving the bank or trust company an opportunity to be heard, then upon thirty days' notice to the bank or trust

company such designation may be revoked. The bunking commission shull post notice of such r-evocnrion and the reason tor such revocation on the department's website.

*-t.

This local law shall take effect immediately upon its enactment.

rE/LOA
LS 1688 1-29-10 Jpm

I hereby certify that the above biD was passed by the Council of the City of New York on .m~... ff .. ( ~J.k.....receiving the following votes: Affirmative ••••.••

ti.~
9.............
-~
,

.
~.

Negative ••••••••••••• ~•••••.•••••••• Not Voting •••••••••••

-'7 /I ,':--.1--:.

L-W'"-

Michael M. McS'W~City
... .~-

~ Clerk, C erk of the Council • ~

.

DISAPPROVED
)N THE~O~DAY

6

~;«,~,

OF ~

:0[3

-_

~y#OR