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HomeMy WebLinkAbout2011 Legislative Discussion.pdf Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chris Kukulski, City Manager SUBJECT: 2011 Legislative discussion MEETING DATE: December 13, 2010 RECOMMENDATION: Review the enclosed information as a starting point to discuss issues that will likely arise during the 2011 legislative session. BACKGROUND: As we look towards the 2011 legislative session, we have prepared the enclosed information to initiate discussion regarding topics the staff suspects will come up during the session. Medical Marijuana The Montana League of Cities and Towns legislative Resolution #8 addresses medical marijuana. The League resolved to “protect local government authority to regulate the production, sale and use or the drug through zoning, licensing and other powers.” The Children, Families, Health and Human Services Interim Committee adopted three bill drafts addressing the Medical Marijuana Act which will be introduced to the upcoming session. The City Attorney will be available to discuss this bill during the agenda item. The three drafts are discussed briefly below: • LC284: this bill is a major overhaul of the Act. Of importance is a section that Section 6 if the bill will prohibit a local government from banning the individual and commercial use of medical marijuana. An older version of the bill draft is available on the Legislature’s website at http://www.leg.mt.gov/content/Committees/Interim/2009_2010/Children_Family/Emergi ng-Issue/lcmm01a-aug24.pdf . The City Attorney will be available to discuss this bill during the agenda item. • LC295: this bill will clarify the Montana Clean Indoor Air Act applies to the smoking of medical marijuana. The bill is available at: http://www.leg.mt.gov/content/Committees/Interim/2009_2010/Children_Family/Emergi ng-Issue/lcmm03.pdf • LC296: this bill clarifies an employer’s rights related to employee use of medical marijuana. The link to the bill is here: http://www.leg.mt.gov/content/Committees/Interim/2009_2010/Children_Family/Emergi ng-Issue/lcmm02.pdf 187 It is expected that many bills will be introduced this session to amend the Act. These bills will most certainly include bills to repeal the Act in its entirety. None of these bills are currently available on the Legislature’s website. The City Attorney was actively involved in the Interim Committee’s work group discussions last spring and will, with Commission consent, represent the city with regards to any legislation which seeks to amend the Medical Marijuana Act. Driving Under the Influence (DUI). Much work was done during the interim by the Law and Justice Interim Committee to address Montana’s DUI statutes. Attached is a document that summarizes the L&J Interim Committee’s adopted bills. The City Attorney and prosecutors will monitor these bills and report to the Commission on the status of the bills and efforts to support or oppose the bills. In addition to the attached document, we provide the following link to the L&J Interim Committee’s bills for this upcoming session: http://www.leg.mt.gov/css/committees/interim/2009_2010/Law_and_Justice/Bill%20drafts/legisl ation.asp The City Attorney will be prepared to discuss these bills in more detail during your discussion on the 13th. Draft Title for Development Agreement Bill “An Act to amend the Montana Code Annotated to authorize local governments to enter into development agreements with property owners and establishing standards and procedures for agreements and amending § 76-3-610.” Planning director McHarg can speak to his experience working under a similar law in Colorado. Local Option Resort Tax The MLCT is not carrying a local option tax bill for the first time in close to 30 years. I have asked a few local legislators if they would be interested in sponsoring a bill that would utilize 100% of any collection for property tax relief. Some have expressed an interest in this approach but I’m unaware of any bill drafts that have been created. Introduced bills which may affect the management of the City’s Human Resources: Bill # Requestor Status Short Title HB 19 Diane Sands (H) Introduced Clarify that the Clean Indoor Air Act applies to smoking of medical marijuana SB 10 Greg Hinkle (S) Introduced Strengthen driver's license sanctions for MIP offenders 188 Bill Draft Requests which may affect the management of the City’s Human Resources (some also have financial implications.) Bill Draft No. Requestor Status Short Title LC0067 and LC0068 Economic Affairs Interim Committee (C) Draft Request Received Revise employment course and scope of employment and medical settlement claims for workers' compensation LC0160 State Administration and Veterans' Affairs Interim Committee Draft in input/proofing Revise laws related to public employees retirement system LC0162 State Administration and Veterans' Affairs Interim Committee (C) Pre-Introduction Letter Sent Require employer contributions on working retirees in PERS, SRS, FURS LC0260 Economic Affairs Interim Committee (C) Draft in Final Drafter Review Generally revise MT Human Rights Act-Indian preference-subpoenas-attorney fees LC0296 Children, Families, Health, and Human Services Interim Committee (C) Draft to Requester for Review Clarifying employer's rights related to employee use of medical marijuana LC0405 State Administration and Veterans' Affairs Interim Committee (C) Pre-Introduction Letter Sent Provide benefit and funding changes to game wardens/peace officers retirement LC0407 State Administration and Veterans' Affairs Interim Committee (C) Pre-Introduction Letter Sent Provide for benefit and funding changes to public employees retirement system LC0492 Wayne Stahl (C) Draft On Hold Generally revise retirement systems LC0517 Cynthia Hiner (C) Pre-Introduction Letter Sent Allow informal service of process in board of personnel appeals proceedings LC0608 Art Wittich (C) Draft to Requester for Review Provide for protection of rights through actions against public officials LC0617 Art Wittich (C) Draft Request Received Revise appeal process for unemployment claims LC0643 (and others) Economic Affairs Interim Committee (and others) (C) Draft Request Received Generally revise workers' compensation laws LC0655 Gordon Vance (C) Draft Request Received Provide that illegal alien may not receive workers' compensation LC0694 Mary Caferro (C) Draft Request Received Provide jobs for Montana veterans LC0695 Mary Caferro (C) Draft Request Received Provide transitional jobs LC0707 Greg Hinkle (C) Draft to Requester for Review Allow employees to keep firearms in vehicle in workplace parking lot LC0715 Scott Reichner (C) Draft Request Received Revise laws relating to credit reports and employment and licensure 189 LC0995 Franke Wilmer (C) Draft Request Received Provide criteria for pay equity and dispute processes I’ve also attached the Resolutions passed this fall by the MLCT (Montana League of Cities and Towns) during the fall conference. I am a member of both the MLCT board and Legislative Sub-committee. ALTERNATIVES: As recommended by the Commission. Attachments: Law and Justice Interim Committee Summary of Final Recommendations Montana League of Cities and Town 2010 Resolutions 190 LAW AND JUSTICE INTERIM COMMITTEE Summary of Final Recommendations (September 14, 2010) Final recommendations advance to session Of the 17 bills considered by the Law and Justice Interim Committee at its final meeting September 9-10, in Helena, 15 will advance to the 2011 Legislature. Fourteen of the committee bills are aimed at changing the culture around impaired driving in Montana; one is a bill to lengthen the period of time that biological evidence must be preserved in certain felony criminal cases. A bill to request an interim study on jail suicide prevention (LClj13) was withdrawn from consideration and a bill concerning refusal to submit to a blood or breath test (LClj16) failed to receive a majority vote. Each of the 15 approved committee bills has now received an official LC number and may be tracked online through the Legislative Automated Workflow System (LAWS) at www.leg.mt.gov/laws.htm. SJR 39 - Study of DUI laws Directed by a 2009 legislative study resolution (SJR 39) to examine Montana's DUI laws, the Law and Justice Interim Committee spent the last 14 months tackling policy questions ranging from how to enhance prevention and education to how to get repeat DUI offenders into treatment and off the streets. The committee examined National Highway Traffic Safety Administration statistics showing that Montana's alcohol-impaired driving fatality rate in 2008 ranked highest in the country per 100,000 vehicle miles traveled. Nationally, 72% of the drunk drivers involved in car accidents were driving with a blood alcohol concentration of 0.15 or more (almost twice the legal limit) and that 44% of these drunk drivers were repeat DUI offenders. The committee also found that hard core drinking starts at an early age. A University of Montana study of felony DUI offenders in the Department of Corrections' 13-month residential treatment program, WATCh, found that 50 percent of the offenders had been convicted of their first DUIs while under 21 years of age. SJR 29 - Study on preservation of biological evidence Another study resolution (SJR 29) assigned to the committee dealt with concerns that Montana needs better statewide standards for preserving biological evidence for future DNA analysis in felony criminal cases. The Montana Innocence Project, the Montana Coalition Against Domestic and Sexual Violence, as well as the state Attorney General's office supported the study citing the need to preserve evidence that could exonerate wrongly convicted persons or that would help find the perpetrator in unsolved cases. Current law requires law enforcement agencies to keep biological evidence for at least 3 years after a conviction becomes final. However, the law is silent on how long the evidence should be kept in unsolved cases. A statewide survey of city and county law enforcement agencies showed a lack of uniform procedures, that many agencies keep evidence involving serious crimes longer than 3 years, and that evidence storage rooms are at or near capacity. (table of committee bills below) 191 Legislation The table below provides the LC numbers, short title, and main provisions of the committee bills that will advance to the 2011 session. Official LC No. (old number) Short title Main provisions LC0354 (LCdna3) Lengthen time DNA evidence must be preserved in certain cases Requires that biological evidence collected in certain specified felony criminal cases must be preserved for the period of time in the statute of limitations for the crime, or for 30 years, whichever is less. The specified crimes are: deliberate homicide, mitigated deliberate homicide, negligent homicide, vehicular homicide while under the influence, sexual assault, and sexual intercourse without consent. LC0365 (LClj01) Strengthen drivers' license sanctions for MIP offenders Provides that the drivers' license of a youth under 18 years of age who is convicted of possessing or consuming an intoxicating substance must be suspended until the person reaches 18 years of age or for 6 months for a first offense or 1 year for a second or subsequent offense within 5 years, whichever is longer. LC0366 (LClj02) Allow game wardens to issue MIP citations Provides that a game warden may issue citations to minors for unlawful possession of an intoxicating substance or dangerous drugs on lands owned or operated by the Department of Fish Wildlife and Parks and requires the game warden to complete the investigation and assist the prosecution that arises from the citation. LC0367 (LClj03) Mandatory alcohol server and sales training Provides that anyone licensed to sell alcohol either at a retail store or bar must ensure that their employees that sell or serve alcohol must be trained on how to comply with state law prohibiting the sale or service of alcohol to minors or to noticeably intoxicated persons or be subject to a civil penalty of $50 per untrained employee. LC0368 (LClj04) Statewide on-call judge for search warrants Provides for the appointment of a standing master in the 1st Judicial District (Lewis and Clark County) to handle search warrant applications during days and hours that courts are not in session. LC0369 (LClj05) Provide that any amount of a dangerous drug is impaired driving per se Provides any amount of a dangerous drug or its metabolite in a driver's system is a per se violation for driving under the influence and providing an exemption for appropriate use of prescription drugs. LC0370 (LClj06-A) Revise drivers' license provisions for DUI court participation Allows a DUI court to grant a probationary drivers' license to a DUI court participant who has been convicted for a second or subsequent impaired driving offense if the participant complies with a treatment plan or other conditions imposed by the court. 192 Official LC No. (old number) Short title Main provisions LC0371 (LClj06-B) Revise jail penalties for DUI court participation Increases from 6 months to 1 year the possible jail time for a 1st or 2nd DUI/BAC offense, clarifies mandatory minimum jail sentences, and allows a DUI court to suspend all or a portion of the jail sentence, except the mandatory minimum, if the DUI court participant is complying with court-ordered treatment and other conditions. LC0372 (LClj07) Allow cities to establish courts of record Allows a city to make its city court a court of record where court proceedings are recording and papers filed are retained for the record and providing that an appeal from a city court of record is confined to a review of the record and questions of law. LC0373 (LClj08) Strengthen ACT laws for treatment of DUI and BAC offenders Revises laws on the chemical dependency assessment, educational course, and treatment (A.C.T.) that DUI/BAC offenders must complete by setting deadlines for completing the assessment and enrolling in treatment, providing that the offenders previous driving record may be considered during the assessment, requiring that the prosecuting attorney's office be notified if an offender fails to attend treatment, and clarifying the court's jurisdiction to impose sanctions for an offender's noncompliance with court-ordered treatment. LC0374 (LClj10) Provide one-year jurisdiction for DUI/BAC offenders Increases the maximum jail time for a 1st or 2nd DUI or a 3rd BAC offense from 6 months to 1 year. LC0375 (LClj11) Eliminate 5-year look back in misdemeanor DUI/BAC cases Provides that in determining how many prior DUI or BAC offenses a person has for the purposes of determining the misdemeanor penalty for a 1st, 2nd, or 3rd DUI or BAC offense, all prior offenses are counted. LC0376 (LClj14) Create a misdemeanor crime of aggravated DUI Provides that a person commits the offense of an aggravated DUI if and any one of the following conditions exists in addition to a regular DUI or BAC offense: the person's BAC is .20 or above; the person has been court ordered to drive only a vehicle equipped with an ignition interlock devise, the person is driving without a license because of a prior impaired driving offense, the person refuses a breath or blood test for impaired driving, the person has a prior conviction or pending charge for an MIP, DUI, or BAC violation within 3 years of the current offense, the person is involved in a crash resulting in bodily injury or property damage. Provides a mandatory minimum of 1 year probationary sentence, a $1,000 to $5,000 fine, and a 1 year jail sentence (which may be suspended) for an aggravated DUI offense. LC0377 (LClj15) Authorized county social host liability ordinance Allows counties without self-governing powers to adopt an ordinance establishing civil or criminal liability of a person hosting a social gathering at which an underage person is illegally served, or illegally possesses or consumes alcohol. 193 Official LC No. (old number) Short title Main provisions LC0378 (LClj17) Authorize search warrants to obtain blood or breath test in DUI cases Providing that if a person is arrested for impaired driving and a search warrant may be obtained and a blood or breath test may be administered without a person's consent. 194 MONTANA LEAGUE OF CITIES AND TOWNS 2010 RESOLUTIONS Resolution #1 General Principles Local governments provide the services and facilities that are the foundation of the Montana economy. Our cities and towns are among the best places in the country to live and work, raise a family and operate a business. The League of Cities and Towns is committed to preserving and promoting these qualities, and it will be guided during the 2011 Legislature by the following principles of fair, affordable and effective local government: 1. protection of current state transfer payments and the promotion of new sources of revenue to fund essential local services 2. diversification of the local government finance structure 3. maintenance of state grant, loan and investment programs to fund capital improvements and enhance the value of local tax dollars 4. strict adherence to federal and state laws and policies that prohibit unfunded mandates 5. protection of natural resources through laws that encourage the development of community water and sewer systems 6. effective planning and development policies that discourage sprawl and promote the more efficient delivery of local services 7. opposition to all measures that limit or diminish municipal authority in contradiction of the Local Government Article of the 1972 Constitution 8. responsible development of the state’s natural resources including renewable energy and alternative fuels 9. recognition of the contribution of cities and towns to the history and culture of our state and the vital role of local governments in the future direction and development of Montana. 195 Finance Policy Resolution #2 Full Funding of the Entitlement Program In 2001, the Legislature, with the support of cities, towns, counties and consolidated governments, enacted House Bill 124. The so called “Big Bill” was intended to stabilize and simplify state revenue transfers between the state and local governments, and to connect future distributions to the performance of the state’s economy. Since the law was enacted, entitlement payments have increased each year through up and down economic cycles in accordance with the formula that tracks per capita income and gross state product. Now, with the state facing a possible $400-million budget deficit, the Legislative fiscal staff has recommended freezing entitlement payments at current levels. There are many arguments cities can offer to counter this proposal: 1. State collection of municipal tax revenues relinquished under HB-124 exceed distributions back to cities and towns by at least $20-million since the law was passed in 2001. 2. The bill also simplified state revenue administration and reduced costs. 3. In 2007, when the state was sitting on a $1-billion budget cushion, local governments did not propose adjusting the growth formula to increase allocations. 4. This program is based on an agreement between the state and local governments. It may not be a legal contract but it is an ethical obligation. 5. The formula is based on four years of economic performance, and because good times will be replaced by recession years, the cost of keeping the promise may be less than $6-million over the next two years. 6. Freezing entitlement payments will force cities to cut public safety and other services and could lead to higher mill levies. Be it resolved that the League of Cities and Towns will oppose any measure that will reduce, delay, or otherwise interfere with the allocation of entitlement payments under the formula agreed to by the state and local governments in 2001. 196 Resolution #3 Tax Increment Financing Tax increment financing has been one of the most successful economic and community development programs in Montana for nearly 30 years. A bill to remove the 95-mill state school equalization levy from prospective increment districts is likely to be introduced in the 2011 Legislature. If this bill is passed, it will eliminate tax increment financing as an economic development strategy at a time when the unemployment rate in Montana is nearly 8%. Other changes in the Tax Increment Financing Laws, specifically a revision of the term “blight” in the urban renewal section, are also likely to be considered by the 2011 Legislature. Be it resolved that the League of Cities and Towns will oppose any legislation to exempt state levies or otherwise restrict the financing and operation of tax increment districts. Be it further resolved that the League of Cities and Towns will support legislation to clarify and update Tax Increment Financing statutes to promote public support for understanding of a vital economic development strategy. Resolution #4 Alternative Assessment Methods for Street Maintenance Districts In Montana, local governments are heavily reliant on taxes or special assessments on property owners. Cities do not have authority under state law to shift some of this financial responsibility to tourists and other nonresidents who use municipal facilities, programs and services. Allowing cities to use retail transactions as a method of assessing the costs of street maintenance would reduce the financial pressure on local property owners and assure that visitors pay a portion of the cost of transportation services. Be it resolved that the League of Cities and Towns will support legislation to expand the list of assessment methods for street maintenance districts to include retail transactions. 197 Resolution #5 Public Defender Costs Under the threat of legal action, the 2005 Legislature established a statewide system to provide legal defense for indigents charged with crimes that carried the possibility of a jail sentence. Cities agreed to contribute the equivalent of $1.76 per capita to cover the expected costs of public defender services in city courts. Program costs have routinely exceeded budgets, and the Legislature will be considering ways to cut or reallocate some of the costs of the public defender program. The Legislative fiscal staff has recommended two options that would hit cities: 1. Eliminate the possibility of jail time for ordinance violations. 2. Require cities to pay public defender costs for ordinance violations that carry the possibility of jail time. Cities and towns are paying $861,000 annually for public defender services, and they should not have to pay additional costs to assure effective enforcement of local ordinances. Be it resolved that the League of Cities and Towns will oppose any legislation that will require additional payments for the public defender program or weaken the enforcement of local ordinances. Resolution #6 Property Taxes Every time the Legislature convenes there is a high pile of bills to revise property taxes which are the most important source of revenue for local governments and public education. Numerous reform bills will be introduced in 2011. The list of bill draft requests includes proposals to cut the tax rate on business equipment, exempt other classes of property and abbreviate the current six-year reappraisal cycle. Cities must work to convince legislators that unreimbursed tax reductions and exemptions will increase levies on other classes of property, while a new reappraisal system could lead to a higher level of public suspicion and more protests. Be it resolved that the League of Cities and Towns will monitor bills that will diminish the municipal tax base, complicate the calculation of property values, or erode the principles of equalization. 198 Resolution #7 Police, Fire and Public Employee Retirement Systems State law prohibits part-time employees and many elected officers of cities and towns from receiving state retirement disbursements or benefits from previous public employment without a 30-day break in service. Be it resolved that the League of Cities and Towns will support legislation to allow part-time public employees and elected officers to collect pension disbursements and benefits earned during previous public employment without a break in service. Be it also resolved that the League of Cities and Towns will oppose bills that unreasonably increase employer contributions as the Legislature works to offset the effects of the recession on retirement accounts. Be it further resolved that the League will support legislation to allow cities and towns to exceed the limit on monthly benefits for volunteer firefighters in 19-18-602 (3B) if their pension account is actuarially funded. 199 General Measures Resolution #8 Medical Marijuana In 2004, Montana voters approved an initiative to allow the use of marijuana as a treatment option for chronic medical conditions. The federal government subsequently decided not to enforce laws prohibiting the sale and use of the drug in states with medical marijuana laws. The use of medical marijuana expanded dramatically. Close to 25,000 people have obtained cards allowing them to use marijuana, and cities have been forced to deal with the public health and safety consequences through zoning, business licensing and other municipal powers. The 2011 Legislature will consider numerous measures to regulate medical marijuana. The effect of these bills could range from minor modifications to an outright repeal of the law. Cities and towns recognize the need for stricter control of the production, sale and use of medical marijuana through state and local authority, but also understand the humanitarian intent of the 2004 initiative. Be it resolved that the League of Cities and Towns will support legislation to restrict the use of marijuana for all but legitimate medicinal purposes and protect local government authority to regulate the production, sale and use of the drug through zoning, licensing and other powers. Resolution #9 Mandatory Use of Safety Belts The benefits of safety belts are recognized by experts across the country and confirmed by statistics. They save lives, reduce the severity of injuries and cut insurance costs. In Montana failure to wear a safety belt is a secondary violation, which impedes the enforcement of the law. Be it resolved that the League of Cities and Towns will support Legislation to establish the failure to use safety belts as a primary offense. 200 Land Use and Environmental Regulation Cities and towns have worked many years to protect Montana’s land and water resources through wise community development policies that emphasize centralized water and sewer systems, efficient delivery of services to concentrated populations and compliance with fair and affordable environmental standards. Recent development patterns in Montana threaten our legacy of open space and clean water. Cities are dedicated to working with state and federal agencies to establish growth and land use policies that recognize property rights while preserving the natural assets of Montana. Resolution #10 Septic System Mixing Zones, Wastewater Re-use and Nutrient Standard Affordability Limits The Interim Water Policy Committee and Department of Environmental Quality will recommend a bill to the 2011 Legislature that will restrict mixing zones for septic drain fields to property boundaries. This measure is the first marker on the long road to basin- wide nutrient standards and more effective water quality regulation. The Department will also recommend legislation to allow for the re-use of municipal wastewater, which could be another effective method of improving water quality. The Municipal Water Quality Committee recommends an amendment to 75-5-103 MCA to limit nutrient standard compliance costs to 1% of median family income. Be it resolved that the League of Cities and Towns will support legislation to restrict septic drain fields to property boundaries. Be it also resolved that the League of Cities and Towns will support legislation to allow the Board of Environmental Review to adopt rules to allow for the re-use of municipal wastewater. Be it further resolved that the League of Cities and Towns will support legislation recommended by the Municipal Water Quality Committee to limit the cost of compliance with temporary nutrient criteria to 1% of median household income for the community served by the treatment works. 201 Resolution #11 Clarification of Exemptions in the Subdivision Statute A legal disagreement over the meaning of Section 76-3-204 MCA that exempts certain conveyances of property from subdivision review threatens to unnecessarily increase the workload of municipal planning departments. Be it resolved that the League of Cities and Towns will support legislation recommended by the Montana Association of Planners to exempt the conveyance of certain properties located with municipal boundaries from subdivision review if they meet specific land use requirements. Resolution #12 Municipal Water Rights Municipal systems represent the best use of Montana’s water resources. These systems provide clean water and reliable service in the largest cities and smallest towns, and they are the foundation of the future development of our state. Cities must have clear rights to adequate supplies of water and the authority to expand service to accommodate growth. Be it resolved that the League of Cities and Towns will support legislation to define “place of use” in 85-2-234 MCA as the general area of a city or town including properties that are receiving municipal water service or are likely to be connected in the future. 202 Resolution #13 Support for Programs Vital to Cities and Towns The budget deficit will affect every funding question that comes before the House Appropriations and Senate Finance Committees in the 2011 Legislature. In this situation no program is safe and virtually every expenditure will be challenged. The Main Street Program in the Department of Commerce and the Local Government Center at Montana State University have identified unique development opportunities and provided valuable educational programs for cities and towns. Be it resolved that the League of Cities and Towns will support adequate funding of the Main Street Program to continue the preservation and economic redevelopment of Montana’s downtowns. Be it further resolved that the League will support state appropriations for the Local Government Center at Montana State University to maintain the Mayor’s Academy, Clerk’s Institute and other education programs for municipal officers and employees. Resolution #14 Passenger Rail Service Across Northern Montana, Amtrak has provided affordable and convenient passenger rail service to cities and towns that have few other transportation alternatives. Congress has frequently discussed but never approved proposals to restore Amtrak Service along the “southern route”. Be it resolved that the League of Cities and Towns will support any federal or state efforts to restore Amtrak service along the southern route. 203