S T A T E   O F   N E W   Y O R K
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                                  5618

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 20, 2015
                               ___________

Introduced  by  Sens.  FELDER, GOLDEN -- read twice and ordered printed,
  and when printed to be committed to the Committee on Education

AN ACT to amend the education law, in  relation  to  contracts  for  the
  transportation of school children

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Statement of legislative findings and necessity. The legis-
lature hereby finds that for three decades beginning in 1979,  following
a strike by school bus workers, the school bus contracts of the board of
education   of  the  city  of  New  York  included  employee  protection
provisions requiring transportation contractors, among other things,  to
give  priority  in  hiring to employees who became unemployed because of
their employers' loss of bus contract work for such  board  and  to  pay
such  employees  the  same wages and benefits they had received prior to
becoming unemployed.
  Following the 2011 decision by the New York State Court of Appeals  in
L&M  BUS CORP., ET AL., V. THE NEW YORK CITY DEPARTMENT OF EDUCATION, ET
AL., the board of education of the city of New York did not include  the
employee  protection provisions that had been part of the board's school
bus contracts for over 30 years or any similar provisions in its  solic-
itations  for its school bus contracts.  After the issuance of the first
such Post-L&M solicitation; there was a school bus strike in January and
February of 2013. During this strike, many children were  either  unable
to attend school or were burdened, along with their families, with find-
ing alternative modes of transportation in the heart of winter.
  The  legislature further finds that the board of education of the city
of New York contracts with 62 companies  to  provide  vital  school  bus
transportation to 149,000 school-age children. Pursuant to the education
law, the state reimburses the board of education of the city of New York
for a substantial percentage of its school bus contract expenditures.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10792-01-5

              

S. 5618                             2

  Accordingly,  the  legislature  finds that the education law should be
amended to require the board of education of the city  of  New  York  to
include  important  employee  protections in its procurements for school
bus transportation contracts and to authorize the board of education  to
amend  existing  contracts to include these protections. Including these
protections in such board's  contracts  will  aid  in  avoiding  service
disruptions  and  pension  withdrawal liability claims, while protecting
the experienced school bus contract workforce from significant wage  and
benefit  reductions  and  facilitating  the  retention of an experienced
workforce. Inclusion of such protections will  secure  more  cost-effec-
tive, higher quality and efficient procurement and performance of school
bus transportation services.
  S  2.  Paragraph  a  of subdivision 14 of section 305 of the education
law, as amended by chapter 273 of the laws of 1999, is amended  to  read
as follows:
  a.  (1)  All  contracts for the transportation of school children, all
contracts to maintain school buses owned or leased by a school  district
that  are  used for the transportation of school children, all contracts
for mobile instructional units, and all contracts to  provide,  maintain
and  operate  cafeteria  or restaurant service by a private food service
management company shall be subject to the approval of the commissioner,
who may disapprove a proposed contract if,  in  his  opinion,  the  best
interests  of  the district will be promoted thereby. Except as provided
in paragraph e of this subdivision,  all  such  contracts  involving  an
annual  expenditure  in  excess  of  the  amount  specified for purchase
contracts in the bidding requirements of the general municipal law shall
be awarded to the lowest responsible bidder, which responsibility  shall
be  determined  by  the board of education or the trustee of a district,
with power hereby vested in the commissioner to reject any or  all  bids
if,  in his opinion, the best interests of the district will be promoted
thereby and, upon such rejection of all  bids,  the  commissioner  shall
order  the board of education or trustee of the district to seek, obtain
and consider new proposals. All proposals for such transportation, main-
tenance, mobile instructional units, or cafeteria and restaurant service
shall be in such form as the commissioner may prescribe.   Advertisement
for  bids  shall be published in a newspaper or newspapers designated by
the board of education or trustee of the district having general  circu-
lation  within  the  district for such purpose. Such advertisement shall
contain a statement of the time when and place where all  bids  received
pursuant  to  such advertisement will be publicly opened and read either
by the school authorities or by a person or persons designated by  them.
All  bids  received  shall  be  publicly opened and read at the time and
place so specified. At least five days shall elapse  between  the  first
publication  of  such  advertisement  and  the date so specified for the
opening and reading of bids. The  requirement  for  competitive  bidding
shall  not  apply  to  an  award of a contract for the transportation of
pupils or a contract for mobile instructional units, if  such  award  is
based  on  an  evaluation  of  proposals  in  response  to a request for
proposals pursuant to paragraph e of this subdivision.  The  requirement
for competitive bidding shall not apply to annual, biennial, or trienni-
al  extensions  of  a contract nor shall the requirement for competitive
bidding apply to  quadrennial  or  quinquennial  year  extensions  of  a
contract involving transportation of pupils, maintenance of school buses
or mobile instructional units secured either through competitive bidding
or  through  evaluation  of  proposals  in  response  to  a  request for
proposals pursuant to paragraph e of this subdivision, when such  exten-

S. 5618                             3

sions  [(1)]  (I) are made by the board of education or the trustee of a
district, under rules and regulations prescribed  by  the  commissioner,
and,  [(2)]  (II) do not extend the original contract period beyond five
years  from  the  date cafeteria and restaurant service commenced there-
under and in the case of contracts for the transportation of pupils, for
the maintenance of school buses or for mobile instructional units,  that
such  contracts  may  be extended, except that power is hereby vested in
the commissioner, in addition to his  existing  statutory  authority  to
approve or disapprove transportation or maintenance contracts, [(i)] (A)
to reject any extension of a contract beyond the initial term thereof if
he finds that amount to be paid by the district to the contractor in any
year  of  such  proposed  extension fails to reflect any decrease in the
regional consumer price index  for  the  N.Y.,  N.Y.-Northeastern,  N.J.
area,  based  upon  the index for all urban consumers (CPI-U) during the
preceding twelve month period; and [(ii)] (B) to reject any extension of
a contract after ten years from the date transportation  or  maintenance
service  commenced  thereunder, or mobile instructional units were first
provided, if in his opinion, the best interests of the district will  be
promoted  thereby.  Upon  such  rejection of any proposed extension, the
commissioner may order the board of education or trustee of the district
to seek, obtain and consider bids pursuant to  the  provisions  of  this
section.  The  board  of  education  or the trustee of a school district
electing  to  extend  a  contract  as  provided  herein,  may,  in   its
discretion,  increase the amount to be paid in each year of the contract
extension by an amount not to exceed the regional consumer  price  index
increase  for  the  N.Y.,  N.Y.-Northeastern,  N.J. area, based upon the
index for all urban consumers (CPI-U), during the preceding twelve month
period, provided it has been satisfactorily established by the  contrac-
tor that there has been at least an equivalent increase in the amount of
his cost of operation, during the period of the contract.
  (2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, THE BOARD
OF  EDUCATION  OF  A SCHOOL DISTRICT LOCATED IN A CITY WITH AT LEAST ONE
MILLION INHABITANTS SHALL INCLUDE IN CONTRACTS FOR THE TRANSPORTATION OF
SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE  TWELVE,  WHETHER  AWARDED
THROUGH  COMPETITIVE  BIDDING  OR  THROUGH  EVALUATION  OF  PROPOSALS IN
RESPONSE TO A REQUEST FOR PROPOSALS PURSUANT  TO  PARAGRAPH  E  OF  THIS
SUBDIVISION,  PROVISIONS  FOR  THE  RETENTION OR PREFERENCE IN HIRING OF
SCHOOL BUS WORKERS AND FOR THE PRESERVATION OF  WAGES,  HEALTH,  WELFARE
AND  RETIREMENT  BENEFITS  AND  SENIORITY FOR SCHOOL BUS WORKERS WHO ARE
HIRED PURSUANT TO SUCH PROVISIONS FOR RETENTION OR PREFERENCE IN HIRING,
IN CONNECTION WITH SUCH CONTRACTS. FOR PURPOSES  OF  THIS  SUBPARAGRAPH,
"SCHOOL  BUS  WORKER"  SHALL  MEAN  AN OPERATOR, MECHANIC, DISPATCHER OR
ATTENDANT WHO:  (I) WAS EMPLOYED AS OF JUNE THIRTIETH, TWO THOUSAND  TEN
OR  AT  ANY  TIME  THEREAFTER  BY (A) A CONTRACTOR THAT WAS A PARTY TO A
CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL DISTRICT LOCATED  IN  A
CITY  WITH  AT  LEAST  ONE MILLION INHABITANTS FOR THE TRANSPORTATION OF
SCHOOL CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, IN CONNECTION WITH
SUCH CONTRACT, OR (B) A SUBCONTRACTOR OF A CONTRACTOR THAT WAS  A  PARTY
TO  A  CONTRACT WITH THE BOARD OF EDUCATION OF A SCHOOL DISTRICT LOCATED
IN A CITY WITH AT LEAST ONE MILLION INHABITANTS FOR  THE  TRANSPORTATION
OF  SCHOOL  CHILDREN IN KINDERGARTEN THROUGH GRADE TWELVE, IN CONNECTION
WITH SUCH CONTRACT, AND (II) HAS BEEN FURLOUGHED OR BECOME UNEMPLOYED AS
A RESULT OF A LOSS OF SUCH CONTRACT, OR A PART OF SUCH CONTRACT, BY SUCH
CONTRACTOR OR SUCH SUBCONTRACTOR, OR AS  A  RESULT  OF  A  REDUCTION  IN
SERVICE  DIRECTED  BY  SUCH  BOARD  OF EDUCATION DURING THE TERM OF SUCH
CONTRACT.

S. 5618                             4

  S 3. Subdivision 14 of section 305 of the education law is amended  by
adding a new paragraph g to read as follows:
  G.  NOTWITHSTANDING  THE  PROVISIONS OF PARAGRAPHS A THROUGH F OF THIS
SUBDIVISION AND ANY REGULATION PROMULGATED PURSUANT THERETO,  THE  BOARD
OF  EDUCATION  OF  A SCHOOL DISTRICT LOCATED IN A CITY WITH AT LEAST ONE
MILLION INHABITANTS AND A CONTRACTOR PROVIDING  TRANSPORTATION  SERVICES
TO  SUCH  DISTRICT  FOR  SCHOOL  CHILDREN  IN KINDERGARTEN THROUGH GRADE
TWELVE MAY AMEND A CONTRACT FOR SUCH TRANSPORTATION SERVICES,  FOR  SUCH
CONSIDERATION AS APPROVED BY SUCH BOARD OF EDUCATION, TO INCLUDE IN SUCH
CONTRACT  PROVISIONS FOR THE RETENTION OR PREFERENCE IN HIRING OF SCHOOL
BUS WORKERS AND FOR THE  PRESERVATION  OF  WAGES,  HEALTH,  WELFARE  AND
RETIREMENT  BENEFITS  AND SENIORITY FOR SCHOOL BUS WORKERS WHO ARE HIRED
PURSUANT TO SUCH PROVISIONS FOR RETENTION OR PREFERENCE  IN  HIRING,  IN
CONNECTION  WITH SUCH CONTRACTS. FOR PURPOSES OF THIS PARAGRAPH, "SCHOOL
BUS WORKER" SHALL MEAN AN OPERATOR, MECHANIC,  DISPATCHER  OR  ATTENDANT
WHO:  (1)  WAS EMPLOYED AS OF JUNE THIRTIETH, TWO THOUSAND TEN OR AT ANY
TIME THEREAFTER BY (I) A CONTRACTOR THAT WAS A PARTY TO A CONTRACT  WITH
THE  BOARD  OF  EDUCATION OF A SCHOOL DISTRICT LOCATED IN A CITY WITH AT
LEAST ONE MILLION INHABITANTS FOR THE TRANSPORTATION OF SCHOOL  CHILDREN
IN  KINDERGARTEN THROUGH GRADE TWELVE, IN CONNECTION WITH SUCH CONTRACT,
OR (II) A SUBCONTRACTOR OF A CONTRACTOR THAT WAS A PARTY TO  A  CONTRACT
WITH  THE BOARD OF EDUCATION OF A SCHOOL DISTRICT LOCATED IN A CITY WITH
AT LEAST ONE MILLION INHABITANTS FOR THE TRANSPORTATION OF SCHOOL  CHIL-
DREN  IN  KINDERGARTEN  THROUGH  GRADE  TWELVE,  IN CONNECTION WITH SUCH
CONTRACT, AND (2) HAS BEEN FURLOUGHED OR BECOME UNEMPLOYED AS  A  RESULT
OF A LOSS OF SUCH CONTRACT, OR A PART OF SUCH CONTRACT, BY SUCH CONTRAC-
TOR  OR  SUCH  SUBCONTRACTOR, OR AS THE RESULT OF A REDUCTION IN SERVICE
DIRECTED BY SUCH BOARD OF EDUCATION DURING THE TERM OF SUCH CONTRACT.
  S 4. Separability.  If  any  item,  clause,  subparagraph,  paragraph,
subdivision  or  section  of  this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment  shall  not  affect,
impair or invalidate the remainder thereof, but shall be confined in its
operation  to this item, clause, subparagraph, paragraph, subdivision or
section thereof that was adjudged to be invalid.
  S 5. This act shall take effect immediately.