GHHCC v LDC

GOLDEN HILL...If you choose an LDC...here is what I recommend!

November 28, 2011



Frederick J. Wadnola, Chairman
Paul J. Hansut, Majority Leader
Jeanette M. Provenzano, Minority Leader
Ulster County Legislature
244 Fair Street
Kingston, NY 12402

Dear Legislators:

I write to join you in resolving the financial difficulties we face with regard to our Golden Hill Health Care Center and the 2012 budget.

The fact of the matter is that you are being asked to restructure the ownership of our Health Care Center through a process that has raised substantive concerns by the NYS Comptroller. Further, you have been presented with a Tentative Budget that has been balanced with a non-recurring source of funds (a one-shot) to be raised through bonding. And, you must act quickly.

You hold a position of substantive authority on how to proceed. Since, it appears, the Local Development Corporation (LDC) is the only viable solution that you have before you to address the financial needs of our Health Care Center, I recommend you clearly and decisively take ownership of the process and make this LDC a model.

Proposed Action Plan:

A. Immediately hire Counsel with expertise in finance and LDCs.
B. Establish a vigorous governance structure to assure the integrity and independence of the LDC board of directors. As recommended by the NYS Authorities Budget Office (ABO), LDC board members should be free of direct governmental control and political influence.
C. An LDC must use the acquired property for purposes set forth in its certificate of incorporation. The certificate of incorporation requires a “Purpose” statement. Be certain you are comfortable with the answers to the required questions on the existing certificate of incorporation:
a. Why is the corporation being formed or what does the corporation intend to accomplish?
b. Who will benefit from the corporation’s accomplishments?
c. How will the corporation achieve its purpose?
D. Include in the LDC By-laws:
a. A requirement that the LDC report regularly to the Legislature to ensure the Legislature has a continued voice and role in the process. Expect written reports and attendance by an LDC board member at appropriate committee meetings.
b. The Authorities Budget Office (ABO) shall be notified of the LDC’s incorporation and the LDC’s commitment to comply with ABO reporting and accountability measures.
c. The Ulster County Comptroller shall have direct authority to audit any and all books and records of the LDC and for this purpose have access to all such books, records, and accounts at any time.
i. The LDC shall file with the County Comptroller a professional independent audit of the LDC’s annual financial statements.
ii. The County Comptroller shall audit and certify for payment all lawful claims or charges, whether for payroll or otherwise, or against funds for which the LDC is responsible in whole or in part.
iii. All such audits shall be an expense of the LDC.
d. The requirement to comply with all state, federal and/or local laws and/or regulations relating to:
i. Procurement and specifically to adopt and follow the County’s procurement policies.
ii. Competitive bidding.
iii. Freedom of Information Laws providing access to LDC records.
iv. NYS Public Officers’ Law requiring the meetings and activities of the LDC be open and accessible to the public. The by-laws should specifically state that confidentiality agreements as a pre-condition of any negotiation are not permitted. The ABO does not agree that full disclosure and transparency are incompatible with LDC success.
v. Competitive bidding.
e. The requirement to comply with Ulster County’s Ethics and Disclosure Law.
E. Amend the County Ethics and Disclosure Law to include the LDC.

F. Embrace the NYS Comptroller’s reform proposal to require that any contract between the County and an LDC must be for fair and adequate consideration and may be for a term no longer than five years, subject to periodic renewals for terms of up to five years each upon the consent of both parties.
G. Assure taxpayers they will receive full value for their asset and it will not be sold without an appraisal:
a. Employ a professional to study the value of the property; use your authority to require the production of books, papers, and other evidence deemed necessary and material to such study.
H. Require a detailed implementation plan inclusive of expected dates for each required step in the restructure/sale process (such as dates for when the: LDC board of directors will adopt by-laws; Legislature will transfer fee title to LDC; reserved leasehold agreement will be drafted, approved; etc.) and designate responsibility for each step.
I. Require scenario planning. The Legislature needs to review a series of multi-year financial scenarios depicting the impact of successes and failures, the effect of this one-shot revenue, and a second one-shot if needed in 2013.
J. Require a back-up plan in the event the LDC method of privatizing does not succeed.
K. Know your options now, don’t wait for future surprises.
Please do not hesitate to call on me if I can be of further assistance.