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Am. S. B. No. 67 As Reported by the House State and Local Government CommitteeAs Reported by the House State and Local Government Committee
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Senators Obhof, Seitz, Hughes, Beagle, Hite, Balderson, Coley, Eklund, Faber, Gardner, Jordan, LaRose, Manning, Oelslager, Patton, Widener
A BILL
To amend sections 111.15, 117.01, 117.10, 117.11,
117.12, 117.16, 117.20, 127.18, 187.01 and 187.04
and to enact sections 117.114 and 117.431 of the
Revised Code to create an agreed-upon procedure
audit for certain eligible political subdivisions,
to eliminate the Auditor of State's exemption from
filing a rule summary and fiscal analysis with
proposed rules, to exclude from public moneys
subject to audit by the Auditor of State any
revenue earned by or from a person's ownership,
operation, or use of a tangible or intangible
asset that was sold, was leased, was licensed, was
the granting of a franchise, or was transferred or
conveyed by a public office to the person pursuant
to an agreement under which the public office
received consideration, to specify which JobsOhio
revenues are not public moneys subject to audit by
the Auditor of State, to clarify by whom JobsOhio
is to be audited and which audit records are
public records, and to provide for annual
compliance and control reviews of JobsOhio.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 111.15, 117.01, 117.10, 117.11,
117.12, 117.16, 117.20, 127.18, 187.01, and 187.04 be amended and
sections 117.114 and 117.431 of the Revised Code be enacted to
read as follows:
Sec. 111.15. (A) As used in this section:
(1) "Rule" includes any rule, regulation, bylaw, or standard
having a general and uniform operation adopted by an agency under
the authority of the laws governing the agency; any appendix to a
rule; and any internal management rule. "Rule" does not include
any guideline adopted pursuant to section 3301.0714 of the Revised
Code, any order respecting the duties of employees, any finding,
any determination of a question of law or fact in a matter
presented to an agency, or any rule promulgated pursuant to
Chapter 119., section 4141.14, division (C)(1) or (2) of section
5117.02, or section 5703.14 of the Revised Code. "Rule" includes
any amendment or rescission of a rule.
(2) "Agency" means any governmental entity of the state and
includes, but is not limited to, any board, department, division,
commission, bureau, society, council, institution, state college
or university, community college district, technical college
district, or state community college. "Agency" does not include
the general assembly, the controlling board, the adjutant
general's department, or any court.
(3) "Internal management rule" means any rule, regulation,
bylaw, or standard governing the day-to-day staff procedures and
operations within an agency.
(4) "Substantive revision" has the same meaning as in
division (J) of section 119.01 of the Revised Code.
(B)(1) Any rule, other than a rule of an emergency nature,
adopted by any agency pursuant to this section shall be effective
on the tenth day after the day on which the rule in final form and
in compliance with division (B)(3) of this section is filed as
follows:
(a) The rule shall be filed in electronic form with both the
secretary of state and the director of the legislative service
commission;
(b) The rule shall be filed in electronic form with the joint
committee on agency rule review. Division (B)(1)(b) of this
section does not apply to any rule to which division (D) of this
section does not apply.
An agency that adopts or amends a rule that is subject to
division (D) of this section shall assign a review date to the
rule that is not later than five years after its effective date.
If no review date is assigned to a rule, or if a review date
assigned to a rule exceeds the five-year maximum, the review date
for the rule is five years after its effective date. A rule with a
review date is subject to review under section 119.032 of the
Revised Code. This paragraph does not apply to a rule of a state
college or university, community college district, technical
college district, or state community college.
If all filings are not completed on the same day, the rule
shall be effective on the tenth day after the day on which the
latest filing is completed. If an agency in adopting a rule
designates an effective date that is later than the effective date
provided for by division (B)(1) of this section, the rule if filed
as required by such division shall become effective on the later
date designated by the agency.
Any rule that is required to be filed under division (B)(1)
of this section is also subject to division (D) of this section if
not exempted by division (D)(1), (2), (3), (4), (5), (6), (7), or
(8) of this section.
If a rule incorporates a text or other material by reference,
the agency shall comply with sections 121.71 to 121.76 of the
Revised Code.
(2) A rule of an emergency nature necessary for the immediate
preservation of the public peace, health, or safety shall state
the reasons for the necessity. The emergency rule, in final form
and in compliance with division (B)(3) of this section, shall be
filed in electronic form with the secretary of state, the director
of the legislative service commission, and the joint committee on
agency rule review. The emergency rule is effective immediately
upon completion of the latest filing, except that if the agency in
adopting the emergency rule designates an effective date, or date
and time of day, that is later than the effective date and time
provided for by division (B)(2) of this section, the emergency
rule if filed as required by such division shall become effective
at the later date, or later date and time of day, designated by
the agency.
An emergency rule becomes invalid at the end of the ninetieth
day it is in effect. Prior to that date, the agency may file the
emergency rule as a nonemergency rule in compliance with division
(B)(1) of this section. The agency may not refile the emergency
rule in compliance with division (B)(2) of this section so that,
upon the emergency rule becoming invalid under such division, the
emergency rule will continue in effect without interruption for
another ninety-day period.
(3) An agency shall file a rule under division (B)(1) or (2)
of this section in compliance with the following standards and
procedures:
(a) The rule shall be numbered in accordance with the
numbering system devised by the director for the Ohio
administrative code.
(b) The rule shall be prepared and submitted in compliance
with the rules of the legislative service commission.
(c) The rule shall clearly state the date on which it is to
be effective and the date on which it will expire, if known.
(d) Each rule that amends or rescinds another rule shall
clearly refer to the rule that is amended or rescinded. Each
amendment shall fully restate the rule as amended.
If the director of the legislative service commission or the
director's designee gives an agency notice pursuant to section
103.05 of the Revised Code that a rule filed by the agency is not
in compliance with the rules of the legislative service
commission, the agency shall within thirty days after receipt of
the notice conform the rule to the rules of the commission as
directed in the notice.
(C) All rules filed pursuant to divisions (B)(1)(a) and (2)
of this section shall be recorded by the secretary of state and
the director under the title of the agency adopting the rule and
shall be numbered according to the numbering system devised by the
director. The secretary of state and the director shall preserve
the rules in an accessible manner. Each such rule shall be a
public record open to public inspection and may be transmitted to
any law publishing company that wishes to reproduce it.
(D) At least sixty-five days before a board, commission,
department, division, or bureau of the government of the state
files a rule under division (B)(1) of this section, it shall file
the full text of the proposed rule in electronic form with the
joint committee on agency rule review, and the proposed rule is
subject to legislative review and invalidation under division (I)
of section 119.03 of the Revised Code. If a state board,
commission, department, division, or bureau makes a substantive
revision in a proposed rule after it is filed with the joint
committee, the state board, commission, department, division, or
bureau shall promptly file the full text of the proposed rule in
its revised form in electronic form with the joint committee. The
latest version of a proposed rule as filed with the joint
committee supersedes each earlier version of the text of the same
proposed rule. Except as provided in division (F) of this section,
a A state board, commission, department, division, or bureau shall
also file the rule summary and fiscal analysis prepared under
section 127.18 of the Revised Code in electronic form along with a
proposed rule, and along with a proposed rule in revised form,
that is filed under this division. If a proposed rule has an
adverse impact on businesses, the state board, commission,
department, division, or bureau also shall file the business
impact analysis, any recommendations received from the common
sense initiative office, and the associated memorandum of
response, if any, in electronic form along with the proposed rule,
or the proposed rule in revised form, that is filed under this
division.
As used in this division, "commission" includes the public
utilities commission when adopting rules under a federal or state
statute.
This division does not apply to any of the following:
(1) A proposed rule of an emergency nature;
(2) A rule proposed under section 1121.05, 1121.06, 1155.18,
1163.22, 1349.33, 1707.201, 1733.412, 4123.29, 4123.34, 4123.341,
4123.342, 4123.40, 4123.411, 4123.44, or 4123.442 of the Revised
Code;
(3) A rule proposed by an agency other than a board,
commission, department, division, or bureau of the government of
the state;
(4) A proposed internal management rule of a board,
commission, department, division, or bureau of the government of
the state;
(5) Any proposed rule that must be adopted verbatim by an
agency pursuant to federal law or rule, to become effective within
sixty days of adoption, in order to continue the operation of a
federally reimbursed program in this state, so long as the
proposed rule contains both of the following:
(a) A statement that it is proposed for the purpose of
complying with a federal law or rule;
(b) A citation to the federal law or rule that requires
verbatim compliance.
(6) An initial rule proposed by the director of health to
impose safety standards and quality-of-care standards with respect
to a health service specified in section 3702.11 of the Revised
Code, or an initial rule proposed by the director to impose
quality standards on a facility listed in division (A)(4) of
section 3702.30 of the Revised Code, if section 3702.12 of the
Revised Code requires that the rule be adopted under this section;
(7) A rule of the state lottery commission pertaining to
instant game rules.
If a rule is exempt from legislative review under division
(D)(5) of this section, and if the federal law or rule pursuant to
which the rule was adopted expires, is repealed or rescinded, or
otherwise terminates, the rule is thereafter subject to
legislative review under division (D) of this section.
(E) Whenever a state board, commission, department, division,
or bureau files a proposed rule or a proposed rule in revised form
under division (D) of this section, it shall also file the full
text of the same proposed rule or proposed rule in revised form in
electronic form with the secretary of state and the director of
the legislative service commission. Except as provided in division
(F) of this section, a A state board, commission, department,
division, or bureau shall file the rule summary and fiscal
analysis prepared under section 127.18 of the Revised Code in
electronic form along with a proposed rule or proposed rule in
revised form that is filed with the secretary of state or the
director of the legislative service commission.
(F) Except as otherwise provided in this division, the
auditor of state or the auditor of state's designee is not
required to file a rule summary and fiscal analysis along with a
proposed rule, or proposed rule in revised form, that the auditor
of state proposes under section 117.12, 117.19, 117.38, or 117.43
of the Revised Code and files under division (D) or (E) of this
section.
Sec. 117.01. As used in this chapter:
(A) "Color of office" means actually, purportedly, or
allegedly done under any law, ordinance, resolution, order, or
other pretension to official right, power, or authority.
(B) "Public accountant" means any person who is authorized by
Chapter 4701. of the Revised Code to use the designation of
certified public accountant or who was registered prior to January
1, 1971, as a public accountant.
(C) "Public money" means any money received, collected by, or
due a public official under color of office, as well as any money
collected by any individual on behalf of a public office or as a
purported representative or agent of the public office.
"Public money" does not include either of the following:
(1) Money or revenue earned by or from a person's ownership,
operation, or use of an asset, whether tangible or intangible,
that either in whole or in part was sold, was leased, was
licensed, was the granting of a franchise, or was otherwise
transferred or conveyed by a public office to the person pursuant
to an agreement, authorized by law, between the person and the
public office in which the public office received consideration
from the person for the asset that was sold, leased, licensed,
franchised, or otherwise transferred or conveyed;
(2) With respect to the transfer described in Chapter 4313.
of the Revised Code and the operation of the enterprise
acquisition project, revenues or receipts of or from the
enterprise acquisition project in the hands of the nonprofit
corporation formed under section 187.01 of the Revised Code or of
a nonprofit entity the sole member of which is that nonprofit
corporation, but does include any taxes collected on the
spirituous liquor sales and then due the department of taxation
and amounts then due to the state general revenue fund pursuant to
section 4301.12 of the Revised Code. As used in this division,
"enterprise acquisition project" has the meaning defined in
section 4313.01 of the Revised Code.
(D) "Public office" means any state agency, public
institution, political subdivision, other organized body, office,
agency, institution, or entity established by the laws of this
state for the exercise of any function of government. "Public
office" does not include the nonprofit corporation formed under
section 187.01 of the Revised Code.
(E) "Public official" means any officer, employee, or duly
authorized representative or agent of a public office.
(F) "State agency" means every organized body, office,
agency, institution, or other entity established by the laws of
the state for the exercise of any function of state government.
(G) "Audit" means any of the following:
(1) Any examination, analysis, or inspection of the state's
or a public office's financial statements or reports;
(2) Any examination, analysis, or inspection of records,
documents, books, or any other evidence relating to either of the
following:
(a) The collection, receipt, accounting, use, or expenditure
of public money by a public office or by a private institution,
association, board, or corporation;
(b) The determination by the auditor of state, as required by
section 117.11 of the Revised Code, of whether a public office has
complied with all the laws, rules, ordinances, or orders
pertaining to the public office.
(3) Any other type of examination, analysis, or inspection of
a public office, or of the specific funds or accounts of a private
institution, association, board, or corporation receiving into
which public money has been placed or deposited, that is conducted
according to generally accepted or governmental auditing standards
established by rule pursuant to section 117.19 of the Revised
Code.
(H) "Person" has the meaning defined in section 1.59 of the
Revised Code.
Sec. 117.10. (A) The auditor of state shall audit all public
offices as provided in this chapter. The auditor of state also may
audit the specific funds or accounts of private institutions,
associations, boards, and corporations
receiving into which has
been placed or deposited public money for their use from a public
office and may require of them annual reports in such form as the
auditor of state prescribes. The auditor of state may audit some
or all of the other funds or accounts of a private institution,
association, board, or corporation that has received public money
from a public office only if one or more of the following applies:
(1) The audit is specifically required or authorized by the
Revised Code;
(2) The private institution, association, board, or
corporation requests that the auditor of state audit some or all
of its other funds or accounts;
(3) All of the revenue of the private institution,
association, board, or corporation is composed of public money;
(4) The private institution, association, board, or
corporation failed to separately and independently account for the
public money in its possession, in violation of section 117.431 of
the Revised Code;
(5) The auditor of state has a reasonable belief that the
private institution, association, board, or corporation illegally
expended, converted, misappropriated, or otherwise cannot account
for the public money it received from a public office and that it
is necessary to audit its other funds or accounts to make that
determination.
(B) If the auditor of state performs or contracts for the
performance of an audit, including a special audit, of the public
employees retirement system, school employees retirement system,
state teachers retirement system, state highway patrol retirement
system, or Ohio police and fire pension fund, the auditor of state
shall make a timely report of the results of the audit to the Ohio
retirement study council.
(C) The auditor of state may audit the accounts of any
provider as defined in section 5111.06 of the Revised Code.
(D) If a public office has been audited by an agency of the
United States government, the auditor of state may, if satisfied
that the federal audit has been conducted according to principles
and procedures not contrary to those of the auditor of state, use
and adopt the federal audit and report in lieu of an audit by the
auditor of state's own office.
(E) Within thirty days after the creation or dissolution or
the winding up of the affairs of any public office, that public
office shall notify the auditor of state in writing that this
action has occurred.
(F) Nothing in this section precludes the auditor of state
from issuing to a private institution, association, board, or
corporation a subpoena and compulsory process for the attendance
of witnesses or the production of records under section 117.18 of
the Revised Code if the subpoena and compulsory process is in
furtherance of an audit the auditor of state is authorized by law
to perform.
Sec. 117.11. (A) Except as otherwise provided in this
division and in sections 117.112 and, 117.113, and 117.114 of the
Revised Code, the auditor of state shall audit each public office
at least once every two fiscal years. The auditor of state shall
audit a public office each fiscal year if that public office is
required to be audited on an annual basis pursuant to "The Single
Audit Act of 1984," 98 Stat. 2327, 31 U.S.C.A. 7501 et seq., as
amended. In the annual or biennial audit, inquiry shall be made
into the methods, accuracy, and legality of the accounts,
financial reports, records, files, and reports of the office,
whether the laws, rules, ordinances, and orders pertaining to the
office have been observed, and whether the requirements and rules
of the auditor of state have been complied with. Except as
otherwise provided in this division or where auditing standards or
procedures dictate otherwise, each audit shall cover at least one
fiscal year. If a public office is audited only once every two
fiscal years, the audit shall cover both fiscal years.
(B) In addition to the annual or biennial audit provided for
in division (A) of this section or in section 117.114 of the
Revised Code, the auditor of state may conduct an audit of a
public office at any time when so requested by the public office
or upon the auditor of state's own initiative if the auditor of
state has reasonable cause to believe that an additional audit is
in the public interest.
(C)(1) The auditor of state shall identify any public office
in which the auditor of state will be unable to conduct an audit
at least once every two fiscal years as required by division (A)
of this section and shall provide immediate written notice to the
clerk of the legislative authority or governing board of the
public office so identified. Within six months of the receipt of
such notice, the legislative authority or governing board may
engage an independent certified public accountant to conduct an
audit pursuant to section 117.12 of the Revised Code.
(2) When the chief fiscal officer of a public office notifies
the auditor of state that an audit is required at a time prior to
the next regularly scheduled audit by the auditor of state, the
auditor of state shall either cause an earlier audit to be made by
the auditor of state or authorize the legislative authority or
governing board of the public office to engage an independent
certified public accountant to conduct the required audit. The
scope of the audit shall be as authorized by the auditor of state.
(3) The auditor of state shall approve the scope of an audit
under division (C)(1) or (2) of this section as set forth in the
contract for the proposed audit before the contract is executed on
behalf of the public office that is to be audited. The independent
accountant conducting an audit under division (C)(1) or (2) of
this section shall be paid by the public office.
(4) The contract for attest services with an independent
accountant employed pursuant to this section or section 115.56 of
the Revised Code may include binding arbitration provisions,
provisions of Chapter 2711. of the Revised Code, or any other
alternative dispute resolution procedures to be followed in the
event a dispute remains between the state or public office and the
independent accountant concerning the terms of or services under
the contract, or a breach of the contract, after the
administrative provisions of the contract have been exhausted.
(D) If a uniform accounting network is established under
section 117.101 of the Revised Code, the auditor of state or a
certified public accountant employed pursuant to this section or
section 115.56 or 117.112 of the Revised Code shall, to the extent
practicable, utilize services offered by the network in order to
conduct efficient and economical audits of public offices.
(E) The auditor of state shall, in accordance with division
(A)(3) of section 9.65 of the Revised Code and this section, may
audit an annuity program for volunteer fire fighters established
by a political subdivision under section 9.65 of the Revised Code.
As used in this section, "volunteer fire fighters" and "political
subdivision" have the same meanings as in division (C) of section
9.65 of the Revised Code.
Sec. 117.114. (A) As used in this section:
(1) "Qualifying subdivision" means an agricultural society,
county board of health, cemetery, conservancy district, family and
children first council, fire district, ambulance district, fire
and ambulance district, library, park or recreation district,
regional planning commission, solid waste district, township,
village, water district, sewer district, or water and sewer
district, or a political subdivision determined by the auditor of
state on a case-by-case basis to be a qualifying subdivision.
(2) "Eligible subdivision" means a qualifying subdivision
that meets the criteria specified in this section and the criteria
established by rule of the auditor of state.
(B) The auditor of state shall establish by rule an
agreed-upon procedure by which eligible subdivisions may be
audited. The rules shall set forth the standards, procedures,
guidelines, and reporting requirements for an agreed-upon
procedure audit. At a minimum, the rules shall require that, to be
eligible for an agreed-upon procedure audit, a political
subdivision must be a qualifying subdivision that meets all of the
following criteria:
(1) The qualifying subdivision's annual budgeted expenditures
do not exceed five million dollars for any fiscal year for which
the agreed-upon procedure audit will be performed;
(2) The qualifying subdivision follows the auditor of state's
regulatory, cash, or modified cash accounting basis;
(3) The fiscal officer or bookkeeper of the qualifying
subdivision did not leave office at any time during the audit
period in question;
(4) The qualifying subdivision had an audit performed under
division (A) of section 117.11 or division (A) of section 117.12
of the Revised Code within the prior two audit periods;
(5) In its most recent audit report, the qualifying
subdivision did not experience any of the following:
(a) A qualified, adverse, or disclaimer opinion;
(b) A declaration under section 117.41 of the Revised Code
that the qualifying subdivision was unauditable;
(c) A finding for recovery that indicated fraud or theft in
office; or
(d) A finding related to material control weaknesses.
(6) The qualifying subdivision is not:
(a) Under investigation by the auditor of state's special
investigations unit or is not otherwise at high risk of fraud as
determined by the auditor of state;
(b) In a fiscal emergency; or
(c) Required to be audited on an annual basis under "The
Single Audit Act of 1984," 98 Stat. 2327, 31 U.S.C. 7501 et seq.,
as amended, or under other laws, grants, bylaws, or debt
covenants.
(7) The qualifying subdivision does not have outstanding
audit fees in arrears; and
(8) Any other criteria the auditor of state determines the
qualifying subdivision must meet to be eligible for an agreed-upon
procedure audit.
(C) An eligible subdivision may, but is not required to,
engage in an agreed-upon procedure audit. If the eligible
subdivision does not engage in an agreed-upon procedure audit
under this section and the rules adopted thereunder, the eligible
subdivision instead shall undergo an audit under division (A) of
section 117.11 or division (A) of section 117.12 of the Revised
Code.
(D) An agreed-upon procedure audit shall be performed by the
auditor of state or by an independent certified public accountant
under the attestation standards established by the American
institute of certified public accountants. Eligible subdivisions
may have an agreed-upon procedure audit in two consecutive audit
periods followed by one audit performed under division (A) of
section 117.11 or division (A) of section 117.12 of the Revised
Code.
(E) The auditor of state, on a case-by-case basis, may
determine that a qualifying subdivision that fails to meet any one
of the criteria established by rule under division (B) of this
section is otherwise eligible for an agreed-upon procedure audit
and may, in writing, grant a waiver of a particular criterion.
(F) An eligible subdivision that engages in an agreed-upon
procedure audit shall continue to file an annual financial report
as required under section 117.38 of the Revised Code.
Sec. 117.12. (A) Any certified public accountant engaged to
perform an audit pursuant to division (C) of section 117.11 of the
Revised Code shall conduct the audit pursuant to the standards,
procedures, and guidelines of the auditor of state for such
audits. The auditor of state shall establish these standards,
procedures, and guidelines by rule. The audit shall cover the
period beginning with the termination date of the most recent
audit conducted under this section or under section 117.11 or
117.114 of the Revised Code, and ending on the date specified by
the auditor of state. The accountant shall inquire into the
methods, accuracy, and legality of the accounts, records, files,
and reports of the public office and shall note whether, in the
accountant's opinion, the laws, rules, ordinances, and orders
pertaining to the public office have been complied with. The
(B) Any certified public accountant engaged to perform an
agreed-upon procedure audit pursuant to section 117.114 of the
Revised Code shall conduct the audit pursuant to the standards,
procedures, guidelines, and reporting requirements adopted by rule
of the auditor of state pursuant to that section.
(C) The certified public accountant shall have no authority
to make formal findings of illegality, malfeasance, or gross
neglect under this division section or section 117.23 of the
Revised Code.
Sec. 117.16. (A) The auditor of state shall do all of the
following:
(1) Develop a force account project assessment form that each
public office that undertakes force account projects shall use to
estimate or report the cost of a force account project. The form
shall include costs for employee salaries and benefits, any other
labor costs, materials, freight, fuel, hauling, overhead expense,
workers' compensation premiums, and all other items of cost and
expense, including a reasonable allowance for the use of all tools
and equipment used on or in connection with such work and for the
depreciation on the tools and equipment.
(2) Make the form available to public offices by any
cost-effective, convenient method accessible to the auditor of
state and the public offices;
(3) When conducting an audit under this chapter of a public
office that undertakes force account projects, examine the forms
and records of a sampling of the force account projects the public
office completed since an audit was last conducted, to determine
compliance with its force account limits.
(B) If the auditor of state receives a complaint from any
person that a public office has violated the force account limits
established for that office, the auditor of state may conduct an
audit in addition to the audit provided in section 117.11 or
117.114 of the Revised Code if the auditor of state has reasonable
cause to believe that an additional audit is in the public
interest.
(C)(1) If the auditor of state finds that a county, township,
or municipal corporation violated the force account limits
established for that political subdivision, the auditor of state,
in addition to any other action authorized by this chapter, shall
notify the political subdivision that, for a period of one year
from the date of the notification, the force account limits for
the subdivision are reduced as follows:
(a) For a county, the limits shall be ten thousand dollars
per mile for construction or reconstruction of a road and forty
thousand dollars for construction, reconstruction, maintenance, or
repair of a bridge or culvert;
(b) For a township, the limit shall be fifteen thousand
dollars for maintenance and repair of a road or five thousand per
mile for construction or reconstruction of a township road;
(c) For a municipal corporation, the limit shall be ten
thousand dollars for the construction, reconstruction, widening,
resurfacing, or repair of a street or other public way.
(2) If the auditor of state finds that a county, township, or
municipal corporation violated the force account limits
established for that political subdivision a second or subsequent
time, the auditor of state, in addition to any other action
authorized by this chapter, shall notify the political subdivision
that, for a period of two years from the date of the notification,
the force account limits for the subdivision are reduced in
accordance with division (C)(1)(a), (b), or (c) of this section.
(3) If the auditor of state finds that a county, township, or
municipal corporation violated the force account limits
established for that political subdivision a third or subsequent
time, the auditor of state shall certify to the tax commissioner
an amount the auditor of state determines to be twenty per cent of
the total cost of the force account project that is the basis of
the violation. Upon receipt of this certification, the tax
commissioner shall withhold the certified amount from any funds
under the tax commissioner's control that are due or payable to
that political subdivision. The tax commissioner shall promptly
deposit this withheld amount to the credit of the local
transportation improvement program fund created by section 164.14
of the Revised Code.
If the tax commissioner determines that no funds are due and
payable to the violating political subdivision or that
insufficient amounts of such funds are available to cover the
entire certified amount, the tax commissioner shall withhold and
deposit to the credit of the local transportation improvement
program fund any amount available and certify the remaining amount
to be withheld to the county auditor of the county in which the
political subdivision is located. The county auditor shall
withhold from that political subdivision any amount, up to that
certified by the tax commissioner, that is available from any
funds under the county auditor's control, that is due or payable
to that political subdivision, and that can be lawfully withheld.
The county auditor shall promptly pay that withheld amount to the
tax commissioner for deposit into the local transportation
improvement program fund.
The payments required under division (C)(3) of this section
are in addition to the force account limit reductions described in
division (C)(2) of this section and also are in addition to any
other action authorized by this chapter.
(D) If the auditor of state finds that a county, township, or
municipal corporation violated its force account limits when
participating in a joint force account project, the auditor of
state shall impose the reduction in force account limits under
division (C) of this section on all entities participating in the
joint project.
(E) As used in this section, "force account limits" means any
of the following, as applicable:
(1) For a county, the amounts established in section 5543.19
of the Revised Code;
(2) For a township, the amounts established in section
5575.01 of the Revised Code;
(3) For a municipal corporation, the amount established in
section 723.52 of the Revised Code;
(4) For the department of transportation, the amount
established in section 5517.02 of the Revised Code.
Sec. 117.20. (A) In adopting rules pursuant to Chapter 117.
of the Revised Code, the auditor of state or the auditor of
state's designee shall do both of the following:
(1) Before adopting any such rule, except a rule of an
emergency nature, do each of the following:
(a) At least thirty-five days before any public hearing on
the proposed rule-making action, mail or send by electronic mail
notice of the hearing to each public office and to each statewide
organization that the auditor of state or designee determines will
be affected or
that represents persons who will be affected by
the proposed rule-making action;
(b) Mail or send by electronic mail a copy of the proposed
rule to any person or organization that requests a copy within
five days after receipt of the request;
(c) Consult with appropriate state and local government
agencies, or with persons representative of their interests,
including statewide organizations of local government officials,
and consult with accounting professionals and other interested
persons;
(d) Conduct, on the date and at the time and place designated
in the notice, a public hearing at which any person affected by
the proposed rule, including statewide organizations of local
government officials, may appear and be heard in person, by
attorney, or both, and may present the person's or organization's
position or contentions orally or in writing.
(2) Except as otherwise provided in division (A)(2) of this
section, comply Comply with divisions (B) to (E) of section 111.15
of the Revised Code. The auditor of state is not required to file
a rule summary and fiscal analysis along with any copy of a
proposed rule, or proposed rule in revised form, that is filed
with the joint committee on agency rule review, the secretary of
state, or the director of the legislative service commission under
division (D) or (E) of section 111.15 of the Revised Code.
(B) The auditor of state shall diligently discharge the
duties imposed by divisions (A)(1)(a), (b), and (c) of this
section, but failure to mail or send by electronic mail any notice
or copy of a proposed rule, or to consult with any person or
organization, shall not invalidate any rule.
(C) Notwithstanding any contrary provision of the Revised
Code, the auditor of state may prepare and disseminate, to public
offices and other interested persons and organizations, advisory
bulletins, directives, and instructions relating to accounting and
financial reporting systems, budgeting procedures, fiscal
controls, and the constructions by the auditor of state of
constitutional and statutory provisions, court decisions, and
opinions of the attorney general. The bulletins, directives, and
instructions shall be of an advisory nature only.
(D) As used in this section, "rule" includes the adoption,
amendment, or rescission of a rule.
Sec. 117.431. Public money in the possession of any private
institution, association, board, or corporation shall be accounted
for separately and independently from its other funds and
accounts. The auditor of state may adopt rules establishing the
manner in which the public money shall be separately and
independently accounted for.
Sec. 127.18. (A) As used in this section:
(1) "Rule-making agency" has the same meaning as in division
(I) of section 119.01 of the Revised Code.
(2) "Rule" includes the adoption, amendment, or rescission of
a rule.
(3) "Proposed rule" means the original version of a proposed
rule, and each revised version of the same proposed rule, that is
filed with the joint committee on agency rule review under
division (D) of section 111.15 or division (H) of section 119.03
of the Revised Code.
(B) A rule-making agency shall prepare, in the form
prescribed by the joint committee on agency rule review under
division (E) of this section, a complete and accurate rule summary
and fiscal analysis of each proposed rule that it files under
division (D) of section 111.15 or division (H) of section 119.03
of the Revised Code. The rule summary and fiscal analysis shall
include all of the following information:
(1) The name, address, and telephone number of the
rule-making agency, and the name and telephone number of an
individual or office within the agency designated by that agency
to be responsible for coordinating and making available
information in the possession of the agency regarding the proposed
rule;
(2) The Ohio Administrative Code rule number of the proposed
rule;
(3) A brief summary of, and the legal basis for, the proposed
rule, including citations identifying the statute that prescribes
the procedure in accordance with which the rule-making agency is
required to adopt the proposed rule, the statute that authorizes
the agency to adopt the proposed rule, and the statute that the
agency intends to amplify or implement by adopting the proposed
rule;
(4) An estimate, in dollars, of the amount by which the
proposed rule would increase or decrease revenues or expenditures
during the current biennium;
(5) A citation identifying the appropriation that authorizes
each expenditure that would be necessitated by the proposed rule;
(6) A summary of the estimated cost of compliance with the
rule to all directly affected persons;
(7) The reasons why the rule is being proposed;
(8) If the rule has a fiscal effect on school districts,
counties, townships, or municipal corporations, an estimate in
dollars of the cost of compliance with the rule, or, if dollar
amounts cannot be determined, a written explanation of why it was
not possible to ascertain dollar amounts;
(9) If the rule has a fiscal effect on school districts,
counties, townships, or municipal corporations and is the result
of a federal requirement, a clear explanation that the proposed
state rule does not exceed the scope and intent of the
requirement, or, if the state rule does exceed the minimum
necessary federal requirement, a justification of the excess cost,
and an estimate of the costs, including those costs for local
governments, exceeding the federal requirement;
(10) If the rule has a fiscal effect on school districts,
counties, townships, or municipal corporations, a comprehensive
cost estimate that includes the procedure and method of
calculating the costs of compliance and identifies major cost
categories including personnel costs, new equipment or other
capital costs, operating costs, and indirect central service costs
related to the rule. The fiscal analysis shall also include a
written explanation of the agency's and the affected local
government's ability to pay for the new requirements and a
statement of any impact the rule will have on economic
development.
(11) If the rule incorporates a text or other material by
reference, and the agency claims the incorporation by reference is
exempt from compliance with sections 121.71 to 121.74 of the
Revised Code because the text or other material is generally
available to persons who reasonably can be expected to be affected
by the rule, an explanation of how the text or other material is
generally available to those persons;
(12) If the rule incorporates a text or other material by
reference, and it was infeasible for the agency to file the text
or other material electronically, an explanation of why filing the
text or other material electronically was infeasible;
(13) If the rule is being rescinded and incorporates a text
or other material by reference, and it was infeasible for the
agency to file the text or other material, an explanation of why
filing the text or other material was infeasible;
(14) Any other information the joint committee on agency rule
review considers necessary to make the proposed rule or the fiscal
effect of the proposed rule fully understandable.
(C) The rule-making agency shall file the rule summary and
fiscal analysis in electronic form along with the proposed rule
that it files under divisions (D) and (E) of section 111.15 or
divisions (B) and (H) of section 119.03 of the Revised Code. The
joint committee on agency rule review shall not accept any
proposed rule for filing unless a copy of the rule summary and
fiscal analysis of the proposed rule, completely and accurately
prepared, is filed along with the proposed rule.
(D) The joint committee on agency rule review shall review
the fiscal effect of each proposed rule that is filed under
division (D) of section 111.15 or division (H) of section 119.03
of the Revised Code.
(E) The joint committee on agency rule review shall prescribe
the form in which each rule-making agency shall prepare its rule
summary and fiscal analysis of a proposed rule.
(F) This section does not require the auditor of state or the
auditor of state's designee to prepare or attach a rule summary
and fiscal analysis to any copy of a rule proposed under section
117.12, 117.19, 117.38, or 117.43 of the Revised Code.
Sec. 187.01. As used in this chapter, "JobsOhio" means the
nonprofit corporation formed under this section, and includes any
subsidiary of that corporation. In any section of law that refers
to the nonprofit corporation formed under this section, reference
to the corporation includes reference to any such subsidiary
unless otherwise specified or clearly appearing from the context.
The governor is hereby authorized to form a nonprofit
corporation, to be named "JobsOhio," with the purposes of
promoting economic development, job creation, job retention, job
training, and the recruitment of business to this state. Except as
otherwise provided in this chapter, the corporation shall be
organized and operated in accordance with Chapter 1702. of the
Revised Code. The governor shall sign and file articles of
incorporation for the corporation with the secretary of state. The
legal existence of the corporation shall begin upon the filing of
the articles.
In addition to meeting the requirements for articles of
incorporation in Chapter 1702. of the Revised Code, the articles
of incorporation for the nonprofit corporation shall set forth the
following:
(A) The designation of the name of the corporation as
JobsOhio;
(B) The creation of a board of directors consisting of nine
directors, to be appointed by the governor, who satisfy the
qualifications prescribed by section 187.02 of the Revised Code;
(C) A requirement that the governor make initial appointments
to the board within sixty days after the filing of the articles of
incorporation. Of the initial appointments made to the board, two
shall be for a term ending one year after the date the articles
were filed, two shall be for a term ending two years after the
date the articles were filed, and five shall be for a term ending
four years after the date the articles were filed. The articles
shall state that, following the initial appointments, the governor
shall appoint directors to terms of office of four years, with
each term of office ending on the same day of the same month as
did the term that it succeeds. If any director dies, resigns, or
the director's status changes such that any of the requirements of
division (C) of section 187.02 of the Revised Code are no longer
met, that director's seat on the board shall become immediately
vacant. The governor shall forthwith fill the vacancy by
appointment for the remainder of the term of office of the vacated
seat.
(D) A requirement that the governor appoint one director to
be chairperson of the board and procedures for electing directors
to serve as officers of the corporation and members of an
executive committee;
(E) A provision for the appointment of a chief investment
officer of the corporation by the recommendation of the board and
approval of the governor. The chief investment officer shall serve
at the pleasure of the board and shall have the power to execute
contracts, spend corporation funds, and hire employees on behalf
of the corporation. If the position of chief investment officer
becomes vacant for any reason, the vacancy shall be filled in the
same manner as provided in this division.
(F) Provisions requiring the board to do all of the
following:
(1) Adopt one or more resolutions providing for compensation
of the chief investment officer;
(2) Approve an employee compensation plan recommended by the
chief investment officer;
(3) Approve a contract with the director of development
services for the corporation to assist the director and the
development services agency with providing services or otherwise
carrying out the functions or duties of the agency, including the
operation and management of programs, offices, divisions, or
boards, as may be determined by the director of development
services in consultation with the governor;
(4) Approve all major contracts for services recommended by
the chief investment officer;
(5) Establish an annual strategic plan and standards of
measure to be used in evaluating the corporation's success in
executing the plan;
(6) Establish a conflicts of interest policy that, at a
minimum, complies with section 187.06 of the Revised Code;
(7) Hold a minimum of four board of directors meetings per
year at which a quorum of the board is physically present, and
such other meetings, at which directors' physical presence is not
required, as may be necessary. Meetings at which a quorum of the
board is required to be physically present are subject to
divisions (C), (D), and (E) of section 187.03 of the Revised Code.
(8) Establish a records retention policy and present the
policy, and any subsequent changes to the policy, at a meeting of
the board of directors at which a quorum of the board is required
to be physically present pursuant to division (F)(7) of this
section;
(9) Adopt standards of conduct for the directors.
(G) A statement that directors shall not receive any
compensation from the corporation, except that directors may be
reimbursed for actual and necessary expenses incurred in
connection with services performed for the corporation;
(H) A provision authorizing the board to amend provisions of
the corporation's articles of incorporation or regulations, except
provisions required by this chapter;
(I) Procedures by which the corporation would be dissolved
and by which all corporation rights and assets would be
distributed to the state or to another corporation organized under
this chapter. These procedures shall incorporate any separate
procedures subsequently set forth in this chapter for the
dissolution of the corporation. The articles shall state that no
dissolution shall take effect until the corporation has made
adequate provision for the payment of any outstanding bonds,
notes, or other obligations.
(J) A provision establishing an audit committee to be
comprised of directors. The articles shall require that the audit
committee hire an a firm of independent certified public
accountant accountants, selected in consultation with the auditor
of state, to perform, once each year, a financial audit of the
corporation at least once every year and of any nonprofit entity
the sole member of which is JobsOhio.
The articles also shall
require all of the following:
(1) Commencing with JobsOhio's fiscal year beginning July 1,
2012, the financial statements to be audited are to be prepared in
accordance with accounting principles and standards set forth in
all applicable pronouncements of the governmental accounting
standards board;
(2) The firm of independent certified public accountants
hired is to conduct a supplemental compliance and control review
pursuant to a written agreement by and among the firm, the auditor
of state, JobsOhio, and any nonprofit entity the sole member of
which is JobsOhio; and
(3) A copy of each financial audit report and each report of
the results of the compliance and control review are to be
provided to the governor, the auditor of state, the speaker of the
house of representatives, and the president of the senate.
(K) A provision authorizing a majority of the disinterested
directors to remove a director for misconduct, as that term may be
defined in the articles or regulations of the corporation. The
removal of a director under this division creates a vacancy on the
board that the governor shall fill by appointment for the
remainder of the term of office of the vacated seat.
Sec. 187.04. (A) The director of development services, as
soon as practical after February 18, 2011, shall execute a
contract with JobsOhio for the corporation to assist the director
and the development services agency with providing services or
otherwise carrying out the functions or duties of the agency,
including the operation and management of programs, offices,
divisions, or boards, as may be determined by the director in
consultation with the governor. The approval or disapproval of
awards involving public money shall remain functions of the
agency. All contracts for grants, loans, and tax incentives
involving public money shall be between the agency and the
recipient and shall be enforced by the agency. JobsOhio may not
execute contracts obligating the agency for loans, grants, tax
credits, or incentive awards recommended by JobsOhio to the
agency. Prior to execution, all contracts between the director and
JobsOhio entered into under this section that obligate the agency
to pay JobsOhio for services rendered are subject to controlling
board approval.
The term of an initial contract entered into under this
section shall not extend beyond June 30, 2013. Thereafter, the
director and JobsOhio may renew the contract for subsequent fiscal
biennia, but at no time shall a particular contract be effective
for longer than a fiscal biennium of the general assembly.
JobsOhio's provision of services to the agency as described
in this section shall be pursuant to a contract entered into under
this section. If at any time the director determines that the
contract with JobsOhio may not be renewed for the subsequent
fiscal biennium, the director shall notify JobsOhio of the
director's decision not later than one hundred twenty days prior
to the end of the current fiscal biennium. If the director does
not provide such written notice to JobsOhio prior to one hundred
days before the end of the current fiscal biennium, the contract
shall be renewed upon such terms as the parties may agree, subject
to the requirements of this section.
(B) A contract entered into under this section shall include
all of the following:
(1) Terms assigning to the corporation the duties of advising
and assisting the director in the director's evaluation of the
agency and the formulation of recommendations under section 187.05
of the Revised Code;
(2) Terms designating records created or received by JobsOhio
that shall be made available to the public under the same
conditions as are public records under section 149.43 of the
Revised Code. Documents designated to be made available to the
public pursuant to the contract shall be kept on file with the
agency.
Among records to be designated under this division shall be
the following:
(a) The corporation's federal income tax returns;
(b) The report of expenditures described in division (B)(3)
of section 187.03 of the Revised Code. The records shall be filed
with the agency at such times and frequency as agreed to by the
corporation and the agency, which shall not be less frequently
than quarterly.
(c) The annual total compensation paid to each officer and
employee of the corporation;
(d) A copy of the audit report for each financial audit of
the corporation and of each supplemental compliance and control
review of the corporation performed by an a firm of independent
certified public
accountant accountants pursuant to division (J)
of section 187.01 of the Revised Code.
(e) Records of any fully executed incentive proposals, to be
filed annually;
(f) Records pertaining to the monitoring of commitments made
by incentive recipients, to be filed annually;
(g) A copy of the minutes of all public meetings described in
division (C) of section 187.03 of the Revised Code not otherwise
closed to the public.
(3) The following statement acknowledging that JobsOhio is
not acting as an agent of the state:
"JobsOhio shall have no power or authority to bind the state
or to assume or create an obligation or responsibility, expressed
or implied, on behalf of the state or in its name, nor shall
JobsOhio represent to any person that it has any such power or
authority, except as expressly provided in this contract."
(C)(1) Records created by JobsOhio are not public records for
the purposes of Chapter 149. of the Revised Code, regardless of
who may have custody of the records, unless the record is
designated to be available to the public by the contract under
division (B)(2) of this section.
(2) Records received by JobsOhio from any person or entity
that is not subject to section 149.43 of the Revised Code are not
public records for purposes of Chapter 149. of the Revised Code,
regardless of who may have custody of the records, unless the
record is designated to be available to the public by the contract
under division (B)(2) of this section.
(3) Records received by JobsOhio from a public office as
defined in section 149.011 of the Revised Code that are not public
records under section 149.43 of the Revised Code when in the
custody of the public office are not public records for the
purposes of section 149.43 of the Revised Code regardless of who
has custody of the records.
(4) Division (B) of section 4701.19 of the Revised Code
applies to any work papers of the firm of independent certified
public accountants engaged to perform the annual financial audit
and the supplemental compliance and control review described in
division (J) of section 187.01 of the Revised Code, and to the
financial audit report and any report of the supplemental
compliance and control review, unless the record is designated to
be available to the public by the contract under division (B)(2)
of this section.
(D) Any contract executed under authority of this section
shall not negate, impair, or otherwise adversely affect the
obligation of this state to pay debt charges on securities
executed by the director or issued by the treasurer of state, Ohio
public facilities commission, or any other issuing authority under
Chapter 122., 151., 165., or 166. of the Revised Code to fund
economic development programs of the state, or to abide by any
pledge or covenant relating to the payment of those debt charges
made in any related proceedings. As used in this division, "debt
charges," "proceedings," and "securities" have the same meanings
as in section 133.01 of the Revised Code.
(E) Nothing in this section, other than the requirement of
controlling board approval, shall prohibit the agency from
contracting with JobsOhio to perform any of the following
functions:
(1) Promoting and advocating for the state;
(2) Making recommendations to the agency;
(3) Performing research for the agency;
(4) Establishing and managing programs or offices on behalf
of the agency, by contract;
(5) Negotiating on behalf of the state.
(F) Nothing in this section, other than the requirement of
controlling board approval, shall prohibit the agency from
compensating JobsOhio from funds currently appropriated to the
agency to perform the functions described in division (E) of this
section.
Section 2. That existing sections 111.15, 117.01, 117.10,
117.11, 117.12, 117.16, 117.20, 127.18, 187.01, and 187.04 of the
Revised Code are hereby repealed.
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