Chapter
316
2005 -- S 1175
Enacted 07/15/05
A N A C T
RELATING TO SEPARATION OF POWERS
Introduced By: Senator J. Michael Lenihan
Date
Introduced: June 16, 2005
It is
enacted by the General Assembly as follows:
SECTION
1. Sections 46-12.2-3, 46-12.2-4 and 46-12.2-24 of the General Laws in
Chapter
46-12.2 entitled "Rhode Island Clean Water Finance Agency" are hereby
amended to
read as
follows:
46-12.2-3.
Establishment of agency -- Composition of agency -- Appointment of
directors.
-- (a) There is hereby created a
body politic and corporate and public instrumentality of
the state
having distinct legal existence from the state and not constituting a
department of the
state
government to be known as the Rhode Island clean water protection
finance agency. The
exercise
by the agency of the powers conferred by this chapter shall be deemed to be the
performance
of an essential public function.
(b) The powers of the agency shall be exercised by or under the supervision of
a board of
directors
consisting of five (5) members, three (3) four (4) of whom shall
be members of the
public appointed by the governor, with the advice and
consent of the senate. The governor in
making
these appointments shall give due consideration to persons skilled and
experienced in
law,
finance, and public administration and give further due consideration to a
recommendation
by
the general treasurer for one of those appointments. one of whom shall be appointed by the
speaker
of the house, and one of whom shall be appointed by the president of the
senate. The
members
appointed by the governor shall be appointed initially for terms, respectively,
to expire
on
the first day of March 1990 and the first day of March in the years 1991, and
1992. Upon
expiration
of each term and each succeeding two (2) year term, the governor shall appoint
a
successor
to serve for a term of two (2) years so that the governor's appointments shall
serve for
staggered
terms of two (2) years. The members appointed by the speaker of the house and
the
president
of the senate shall serve at the pleasure of the appointing authority. The newly
appointed
member will serve for a limited term to expire in March of 2006. All
appointments
made
by the governor shall serve for a term of two (2) years. No one shall be
eligible for
appointment
unless he or she is a resident of this state. The members of the board of
directors as
of
the effective date of this act who were appointed to the board of directors by
members of the
general
assembly shall cease to be members of the board of directors on the effective
date of this
act.
As of the effective date of this act, the general treasurer or his or her
designee, who shall be a
subordinate
within the general treasurer's department, shall serve on the board of
directors as an
ex-officio
member. Those members of the board of directors as of the effective date of
this act
who
were appointed to the board of directors by the governor shall continue to
serve the balance
of
their current terms.
(c) Each member of the board of directors shall serve until his or her
successor is
appointed
and qualified. The appointed member of the board of directors shall be eligible
for
reappointment.
Any member of the board of directors appointed to fill a vacancy of a public
member on the board shall be appointed by the governor with
the advice and consent of the
senate for the unexpired term of the vacant position.
in the same manner as the member's
predecessor
as set forth in subsection 46-12.2-3(b).
Any member of the board of directors may be
removed
by the governor for misfeasance, malfeasance, or willful neglect of duty upon
the filing
by
the governor with the secretary of state of a statement of facts and
circumstances which form
the
basis for the removal. The public
members of the board of directors shall be removable by the
governor,
pursuant to section 36-1-7 of the Rhode Island general laws and for cause only,
and
removal
solely for partisan or personal reasons unrelated to capacity or fitness for
the office shall
be
unlawful. The governor shall
designate one member of the board of directors to be the
chairperson
of the agency to serve in such capacity during his or her term as a member. The
board
of
directors may elect from among its members such other officers as they deem
necessary. The
board
of directors annually shall elect one of its members as vice chairperson. Three (3) members
of the
board of directors shall constitute a quorum., and the affirmative
vote of three (3) members
shall
be necessary and shall suffice for any action taken by the board of directors. A majority vote
of
those present shall be required for action. No vacancy in the membership of the board of
directors
shall impair the right of a quorum to exercise the powers of the board of
directors. The
members
of the board of directors shall serve without compensation but each member
shall be
reimbursed
for all reasonable expenses incurred in the performance of his or her duties.
(d) Notwithstanding any other provision of general or special law to the
contrary, any
member
of the board of directors, who is also an officer or employee of the state or
of a local
governmental
unit or other public body, shall not thereby be precluded from voting for or
acting
on
behalf of the agency, the state, or local governmental unit or other public
body on any matter
involving
the agency, the state, or that local governmental unit or other public body,
and any
director,
officer, employee, or agent of the agency shall not be precluded from acting
for the
agency
on any particular matter solely because of any interest therein which is shared
generally
with a
substantial segment of the public.
46-12.2-4.
General powers of agency. – General powers and duties of agency. --
(a)
The agency
shall have all powers necessary or convenient to carry out and effectuate the
purposes
and
provisions of this chapter, including without limiting the generality of the
foregoing, the
powers and
duties:
(1) To adopt and amend bylaws, rules, regulations, and procedures for the
governance of
its
affairs, the administration of its financial assistance programs, and the
conduct of its business;
(2) To adopt an official seal;
(3) To maintain an office at such place or places as it may determine;
(4) To adopt a fiscal year;
(5) To adopt and enforce procedures and regulations in connection with the
performance
of its
functions and duties;
(6) To sue and be sued;
(7) To employ personnel as provided in section 46-12.2-5, and to engage
accounting,
management,
legal, financial, consulting and other professional services;
(8) Except as provided in this chapter, to receive and apply its revenues to
the purposes
of this
chapter without appropriation or allotment by the state or any political
subdivision thereof;
(9) To borrow money, issue bonds, and apply the proceeds thereof, as provided
in this
chapter,
and to pledge or assign or create security interests in revenues, funds, and
other property
of the
agency and otherwise as provided in this chapter, to pay or secure the bonds;
and to invest
any
funds held in reserves or in the water pollution control revolving fund, the
Rhode Island
water
pollution control revolving fund, or the local interest subsidy trust fund, or
any revenues or
funds
not required for immediate disbursement, in such investments as may be legal
investments
for
funds of the state;
(10) To obtain insurance and to enter into agreements of indemnification
necessary or
convenient
to the exercise of its powers under this chapter;
(11) To apply for, receive, administer, and comply with the conditions and
requirements
respecting
any grant, gift, or appropriation of property, services, or moneys;
(12) To enter into contracts, arrangements, and agreements with other persons,
and
execute
and deliver all instruments necessary or convenient to the exercise of its
powers under
this
chapter; such contracts and agreements may include without limitation, loan
agreements with
local
governmental units, capitalization grant agreements, intended use plans,
operating plans,
and
other agreements and instruments contemplated by title VI of the Clean Water
Act, 33 U.S.C.
section
1381 et seq., or this chapter, grant agreements, contracts for financial
assistance or other
forms of
assistance from the state or the United States, and trust agreements and other
financing
agreements
and instruments pertaining to bonds;
(13) To authorize a representative to appear on its own behalf before other
public bodies,
including,
without limiting the generality of the foregoing, the congress of the United
States, in
all
matters relating to its powers and purposes;
(14) To provide financial assistance to local governmental units to finance costs
of
approved
projects, and to acquire and hold local governmental obligations at such prices
and in
such
manner as the agency shall deem advisable, and sell local governmental
obligations acquired
or held
by it at prices without relation to cost and in such manner as the agency shall
deem
advisable,
and to secure its own bonds with such obligations all as provided in this
chapter;
(15) To establish and collect such fees and charges as the agency shall
determine to be
reasonable;
(16) To acquire, own, lease as tenant, or hold real, personal or mixed property
or any
interest
therein for its own use; and to improve, rehabilitate, sell, assign, exchange,
lease as
landlord,
mortgage, or otherwise dispose of or encumber the same; and
(17) To do all things necessary, convenient, or desirable for carrying out the
purposes of
this
chapter or the powers expressly granted or necessarily implied by this chapter.;
(18)
To conduct a training course for newly appointed and qualified members and new
designees
of ex-officio members within six (6) months of their qualification or
designation. The
course
shall be developed by the executive director, approved by the board of
directors, and
conducted
by the executive director. The board of directors may approve the use of any
board of
directors
or staff members or other individuals to assist with training. The training
course shall
include
instruction in the following areas: the provisions of chapters 46-12.2, 42-46,
36-14, and
38-2;
and the agency's rules and regulations. The director of the department of
administration
shall,
within ninety (90) days of the effective date of this act, prepare and
disseminate, training
materials
relating to the provisions of chapters 42-46, 36-14 and 38-2; and
(19)
To meet at the call of the chair at least eight (8) times per year. All
meetings shall be
held
consistent with chapters 42-46.
(b) Notwithstanding any other provision of this chapter, the agency shall not
be
authorized
or empowered:
(1) To be or to constitute a bank or trust company within the jurisdiction or
under the
control
of the department of banking and insurance of the state, or the commissioner
thereof, the
comptroller
of the currency of the United States of America, or the treasury department
thereof;
or
(2) To be or constitute a bank, banker or dealer in securities within the
meaning of, or
subject
to the provisions of, any securities, securities exchange, or securities
dealers' law of the
United
States or the state.
46-12.2-24.
Record keeping -- Financial statements. -- The agency shall, at all
times,
keep
full and accurate accounts of its receipts, expenditures, disbursements,
assets, and liabilities
which
shall be open to inspection by any officer or duly appointed agent of the
state. The agency
shall
submit an annual report, in writing, to the governor, speaker of the house of
representatives,
and
president of the senate. The report shall include financial statements relating
to the
operations,
properties, and expenditures of the agency maintained in accordance with
generally
accepted
accounting principles, so far as applicable, and audited by an independent
certified
public
accountant firm.
SECTION
2. Chapter 46-12.2 of the General Laws entitled "Rhode Island Clean Water
Finance
Agency" is hereby amended by adding thereto the following section:
46-12.2-24.1.
Reporting requirements. – Within ninety (90) days after the end of
each
fiscal
year, the agency shall submit an annual report to the governor, the speaker of
the house of
representatives,
the president of the senate, and the secretary of state of its activities
during that
fiscal
year. The report shall provide: a summary of the agency's meetings including
when the
agency
met, subjects addressed, decisions rendered and meeting minutes; a summary of
the
agency's
actions including a listing of rules, regulations, or procedures adopted or
amended,
applications
received for financial assistance for water pollution abatement projects,
contracts or
agreements
entered into, applications and intended use plans submitted to federal agencies
for
capitalization
grants, properties acquired or leased, and bonds issued; a synopsis of any
complaints,
suspensions, or other legal matters related to the authority of the agency; a
consolidated
financial statement of all funds received and disbursed by the agency including
the
source
of and recipient of the funds which shall be audited by an independent
certified public
accountant
firm; copies of audits or reports required under federal law; a listing of the
staff and/or
consultants
employed by the agency; a listing of findings and recommendation derived from
agency
activities; and a summary of performance during the previous fiscal year
including
accomplishments,
shortcomings and remedies. The report shall be posted as prescribed in section
42-20-8.2.
The director of the department of administration shall be responsible for the
enforcement
of this provision.
SECTION
3. Severability. If any provision of this act or the application thereof to any
person
or circumstances is held invalid, such invalidity shall not affect other
provisions or
applications
of the act, which can be given effect without the invalid provision or
application, and
to this
end the provisions of this act are declared to be severable.
SECTION 4. This act shall
take effect upon passage.
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LC03544
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