Mandate Determinations
The Division of Local Mandates (DLM) responds to requests to determine whether the Local Mandate Law applies to various state actions with the potential to impose costs on Massachusetts cities and towns, and determines the local cost impact, if any. Approximately 70% of these requests come from municipal officials. While most of the remainder originates from the Legislature, a number come from state administrative agencies.
A municipality that requests a determination under the Local Mandate Law is entitled to an individual cost compliance analysis specific to that particular city or town. As a result, a single mandate issue may generate hundreds of determinations. DLM has determined the estimated or actual cost impact of dozens of issues for each of the 351 cities and towns, and presented these findings to the Legislature. Accordingly, DLM has issued thousands of compliance cost determinations over time. Some examples of these issues follow.
Uniform
Polling Hours Costs, 2008
(Lists of amounts for each city and town)
Pension Costs - County Dissolution
The Owner's Project Manager Requirements of the Public Construction Reform Law, Chapter 193 of the Acts of 2004
In
response to a request from the Milford Board of Selectmen, DLM reviewed
General Laws Chapter 149, section 44A1/2, added by Chapter 193 of the Acts
of 2004, AN ACT FURTHER REGULATING PUBLIC CONSTRUCTION IN
COMMONWEALTH. Section 44A1/2 requires that public agencies
"contract for the services of an owner's project manager" (OPM)
to perform various consulting and oversight functions for projects
estimated to cost $1.5 million or more. Milford officials estimated
that the OPM requirement could result in significant new costs of up to
$100,000 or more should the town undertake a major public construction
project in the near future. Consequently, the Town asked for an opinion on
whether the Local Mandate Law applied to this provision, and if so,
requested that the Office of the State Auditor declare the provision not
effective in the Town of
After reviewing the Town’s argument and input from relevant state agencies, DLM determined that for certain projects, the OPM provision imposed by section 44A1/2 falls within the scope of the Local Mandate Law. However, DLM also informed the Town that in a given case, there may be factors that would lead to a different result, such as conditions imposed in exchange for state financial assistance. An example might be requirements tied to state funding of a local school construction project. Nonetheless, DLM advised the Town that the Office of the State Auditor does not have the authority to suspend operation of state law. The Local Mandate Law provides that a community aggrieved by an unfunded state mandate may petition superior court for an exemption from compliance until the Commonwealth assumes the cost.
In
reaching these conclusions, DLM relied upon the precedent of relevant
court decisions. In City of Worcester v. the Governor, 416 Mass.
751 (1994), the
In summary, elements leading to DLM’s opinion that in certain cases the OPM provision contravenes the Local Mandate Law include the fact the 2004 requirement is clearly a new state law taking effect on or after January 1, 1981, and not a mere clarification of pre-existing legal requirements. DLM also found that it does not allow for local acceptance of the obligation; hiring an OPM is not a voluntary local undertaking. Furthermore, DLM determined that the requirement would impose a more than incidental, direct cost on a city or town obligated to employ an OPM.
Accordingly, DLM concluded that - on its face - the OPM requirement
imposed by section 44A1/2 is subject to the provisions of Local Mandate
Law. As mentioned above,
however, as applied in certain contexts, this requirement might fall
beyond the scope of the Local Mandate Law. For example, such result may
occur in the context of a state-assisted school construction project,
where a community agrees to certain compliances in exchange for state
financial aid. In a case where this or other requirements may be imposed
as a condition precedent to the distribution or award of state assistance,
the Local Mandate Law would not apply.
(Access Full Letter)
Uniform Statewide Polling Hours Costs,
2008 Certification
(List of amounts for each city and town)
The Division of Local Mandates certified a total of $1.57 million for distribution to the Commonwealth's cities and towns to cover expanded polling hour costs related to the 2008 September state primary and November elections. In addition, based on the fall 2008 certified amounts, DLM determined the incremental expenses municipalities would incur due to Chapter 503 compliance for the February 2008 Presidential Primary to be $786,324. Consequently, DLM identified total Chapter 503 compliance costs for cities and towns at $2.36 million for the calendar 2008 election cycle.
A state mandate, Chapter 503 of the Acts of 1983, the Uniform Polling Hours Law, requires municipalities to keep polling places open from 7 a.m. to 8 p.m. for all state and federal elections, resulting in an additional three hours of polling place operation expenses. Chapter 503 also directs DLM to determine local financial impact of this mandate for each city and town. Communities must document any additional costs and submit them to DLM for certification. The Massachusetts Secretary of State then distributes the funding.
The combined DLM-certified Chapter 503 amounts fort the 2008 Presidential Primary and state fall elections range from $240,360 for the City of Boston to $99 for the small Town of Ashfield in the western part of the state. Since 1983, Auditor DeNucci has approved approximately $18 million in state funding to cover these mandated elections costs in each community.
Beach
Water Quality Testing
As directed by Section 3 of Chapter 248 of the Acts of 2000, DLM
determined the municipal financial impact of expanded water quality
testing requirements imposed by the so-called Beaches Act. In
essence, the Chapter 248 mandates is that local boards of health must
conduct at least weekly testing and analysis of the waters at
public fresh and salt water beaches throughout the bathing season.
The purpose is to ascertain the presence and levels of certain bacteria
that may endanger the health of the swimming public. As the pre-1981
requirement was for twice monthly testing, the Beaches Act more than
doubles these municipal obligations.
To determine municipal compliance costs, DLM surveyed a number of laboratories and learned that the average cost of sampling analysis and reporting ranged from $70 to $78 per test. Since there was no complete inventory, DLM extrapolated from known data to estimate that there are approximately 585 public beaches in the Commonwealth. With this data, DLM estimated the cost to perform the nine additional tests at all public beaches at about $400,000 per year.
Among other things, DLM recommended that the competitive grant program provided by the Beaches Act be amended to provide for a forward funding program for full state assumption of the mandated costs in each affected community. (Access Complete Report)
The
Gun Control Act of 1998
DLM determined that the Gun Control Act,
Chapter 180 of the Acts of 1998, imposed cost obligations on cities and
towns without adequate state funding. In effect, this law required
local police departments to review as many as 800,000 Fire Arms
Identification Cards (FID cards) during fiscal 2000, and every fourth year
thereafter. Prior law allowed for life-long permits, so that
renewals were unnecessary.
To determine the cost of this mandate, DLM surveyed thirty municipal police departments. Based upon these results, DLM estimated the statewide local cost impact at $17.6 million. However, the original law provided that communities could retain one-half of the $25 renewal fee. This offset left the unfunded cost impact at $10.8 million.
Among other things, DLM recommended that cities and towns should be authorized to retain the entire $25 fee to further offset local compliance costs. Subsequent legislation increased the fee to $100, and provides that communities retain $25 of this amount. The remainder is credited to state funds. (Access Complete Report)
English
Immersion
At the request of the Framingham School Committee, DLM issued an
opinion regarding the Local Mandate Law and Chapter 386 of the Acts of
2002, an Act Relative to the Teaching of English in Public Schools.
Beginning in September 2003, this law requires school districts to provide
English Immersion programs for limited English proficient students (with
some exceptions). DLM concluded that the Local Mandate Law did not
apply in this case, because Chapter 386 was not enacted by the General
Court. Rather, the voters approved it at the November 2002 state
election through the citizens' initiative petition process.
Nonetheless, DLM identified a number of financial resources to help offset
the cost of making the transition to English Immersion programs. (Access
Letter)
Pension
Costs - County Dissolution
The Town of Sudbury and the Southwick-Tolland Regional School Committee
asked for an opinion as to whether the Local Mandate Law applies to
certain increased costs incurred as a result of a state law abolishing
Middlesex and Hampden Counties, Chapter 48 of the Acts of 1997, (the
Abolition Act, as amended by Chapter 300 of the Acts of 1998.)
Specifically, counties that have been abolished and former county
employees no longer contribute to the support of the regional retirement
system serving the governmental units that remain in the county retirement
system. As a result, the remaining governmental units must bear a
greater proportion of the cost of the regional employee retirement program
than before abolition. DLM determined that even though these
increases are significant in many cases, they are not a direct result of the
Abolition Act. Rather, they are a function of the cost apportionment
provisions established by G. L. c. 32, a local option law governing public
retirement systems and pensions. For this reason, DLM concluded that
the Local Mandate Law does not apply in this case.
Cities, towns, regional school districts, and others are bound by state law governing public retirement systems because they voted to accept relevant portions of G. L. c. 32. In doing so, they voluntarily agreed to the apportionment schedule that allocates the cost of a regional retirement system among the members on a percentage of aggregate payroll basis. In a related case, the Supreme Judicial Court held that the state did not "impose" costs through amendments affecting a law that was locally accepted, even though in cases such as G. L. c. 32, local acceptance of the law at issue cannot be rescinded. See City of Cambridge v. Attorney General, 410 Mass. 165 (1991). Based upon this precedent, DLM concluded that G. L. c. 29, s. 27C does not apply to the increases in payments to the regional retirement system.