Issue 223








EMINENT DOMAIN - CONNECTICUT

Commissioner of Transportation v. Lagosz

Appellate Court of Connecticut - May 14, 2019 - A.3d - 189 Conn.App. 828 - 2019 WL 2082763

Property owner appealed from Commissioner of Transportation’s assessment of damages in connection with condemnation of real property for purpose of improving rail corridor.

Following mediation and hearing to determine whether enforceable settlement agreement had been reached, the Superior Court entered judgment enforcing oral settlement agreement for reassessment of $600,000 as just compensation for taking of defendant’s property. Property owner appealed.

The Appellate Court held that:

Issue of expenses incurred by property owner’s husband in relocating his business was outside scope of eminent domain proceeding, and thus oral settlement agreement between property owner and Commissioner of Transportation was not unenforceable for failing to address such issue, in property owner’s appeal from Commissioner’s assessment of damages in connection with taking; only essential term of settlement agreement was amount of compensation to be paid to property owner for taking of her real property.

Trial court did not clearly err in finding that legally enforceable settlement agreement existed, under which Commissioner of Transportation was to pay property owner $600,000 in damages in connection with taking of her home and real property, in property owner’s appeal from Commissioner’s initial assessment of damages, where property owner’s former attorneys, Commissioner’s representatives, and property owner’s husband, all testified that parties had agreed to sum of $600,000 in mediation proceedings.




IMMUNITY - KENTUCKY

Energy and Environment Cabinet, Department for Natural Resources v. Harmon

Court of Appeals of Kentucky - May 10, 2019 - S.W.3d - 2019 WL 2063702

Residents of community who suffered property damage from torrential rainfall and flooding filed action for review of decision by Kentucky Board of Claims, dismissing residents’ negligence claims against Energy and Environment Cabinet, Department of Natural Resources, which claims were based on Cabinet’s alleged failed to enforce mining laws at nearby surface mine.

The Circuit Court reversed and remanded. Cabinet appealed.

The Court of Appeals held that:

One-year period for residents to assert negligence claims against Energy and Environment Cabinet, Department of Natural Resources, accrued on date residents suffered property damage from torrential rainfall and flooding, which was nearly two years before residents asserted claims, and thus claims were barred by governmental immunity, in residents’ action seeking review of decision by Kentucky Board of Claims, dismissing their negligence claims against Cabinet.

The savings statute, which allows the commencement of a new action in the proper court within 90 days of a judgment that the court in which the action was filed did not have jurisdiction, does not constitute an implied waiver of sovereign immunity.




ZONING & PLANNING - NEBRASKA

Bruning v. City of Omaha Zoning Board of Appeals

Supreme Court of Nebraska - May 17, 2019 - N.W.2d - 303 Neb. 146 - 2019 WL 2150381

Landowners sought review of city zoning board of appeals’ denial of variance for their agricultural-zoned land that they had been leasing for use as automobile storage and landscaping and boiler repair businesses.

The District Court affirmed. Landowners appealed.

The Supreme Court held that:

Substantial evidence supported city zoning board of appeals’ denial of a variance, on the basis of unnecessary hardship, from requirements regarding maximum building coverage, maximum impervious surface coverage, landscaping, and the required number of parking stalls, for agricultural-zoned land that landowners had been leasing for use as automobile storage and landscaping and boiler repair businesses, even if landowners had made investments and some neighbors supported landowners; record included recommendations from city, numerous exhibits, input from stakeholders, and testimony offered at four hearings, and evidence showed that landowners unilaterally altered the permissible use of property by leasing portions of buildings to several commercial entities and others.

City zoning board of appeals’ denial of variance to landowners who had been leasing buildings in their agricultural-zoned property for use as automobile storage and landscaping and boiler repair businesses did not deprive landowners of all beneficial or reasonable use of their property such as would constitute a legally cognizable hardship, where the agricultural district allowed uses of horticulture, single family residential, park and recreation services, kennels, and stables, and also allowed, subject to approval of a conditional or special use permit, campgrounds, religious assembly, agricultural sales and service, sports and recreation, and veterinary services.




LIENS - PENNSYLVANIA

Estate of Guyaux v. Township of North Fayette

Commonwealth Court of Pennsylvania - May 6, 2019 - A.3d - 2019 WL 1983164

Township filed complaint in equity against estate and heir of estate, alleging violations of township’s property maintenance code in connection with condemned house inherited by heir.

The Common Pleas Court entered order granting township authority to assert lien against heir for costs associated with removal of firearm collection from house, and ordering sale of firearms to satisfy such costs. Heir appealed.

The Commonwealth Court held that:

Order stating that township could lien for costs if, after six months, it had to clear condemned property inherited by heirs, was binding upon heir, in action by township against estate and heir, alleging violations of township’s property maintenance code, where heir consented to order in writing.

Trial court had legal and equitable authority to grant township authority to assert lien against heir for costs associated with clearing inherited property of firearms, to determine who would remove firearms, and to order sale of firearms to satisfy such costs, in action by township against estate and heir of estate, alleging violations of township’s property maintenance code; trial court had broad authority to address public nuisance of dilapidated house, in which total of 586 weapons were stored, which required special handlers to remove, and firearms were inextricably connected to such public nuisance.




BANKRUPTCY - PUERTO RICO

In re Financial Oversight and Management Board for Puerto Rico

United States District Court, D. Puerto Rico - May 10, 2019 - B.R. - 2019 WL 2070891

In the jointly administered restructuring cases of the Commonwealth of Puerto Rico and various governmental entities pursuant to Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the Financial Oversight and Management Board for Puerto Rico and the Official Committee of Unsecured Creditors brought adversary proceeding against the Puerto Rico Public Buildings Authority (PBA) in connection with purported PBA lease agreements, and subsequently filed omnibus objection to claims filed or asserted by holders of certain Commonwealth general obligation bonds, seeking to invalidate all such claims.

Ad hoc group of general obligation bondholders then filed conditional objection to claims filed or asserted by PBA bondholders, as well as motion for entry of order establishing conditional omnibus claims-objection procedures. Several parties in interest objected to motion.

The District Court held that the requested motion and related conditional claim objection impermissibly presented a hypothetical request for relief instead of an actual case or controversy.

In adversary proceeding against Puerto Rico Public Buildings Authority (PBA), brought in jointly administered restructuring cases of Commonwealth of Puerto Rico and various governmental entities under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), the district court lacked jurisdiction to implement conditional omnibus claims-objection procedures requested by ad hoc group of general obligation bondholders in conjunction with its conditional objection to claims filed by PBA bondholders; by means of its objection, group sought to present legal disputes for adjudication that were expressly conditioned on future events that may or may not occur, such that motion and related objection presented hypothetical request for relief instead of actual case or controversy, and sought impermissible advisory opinion.




TAX - TENNESSEE

Coffee County Board of Education v. City of Tullahoma

Supreme Court of Tennessee, at Nashville - May 8, 2019 - S.W.3d - 2019 WL 2022363

County brought action against city, claiming that city was statutorily required to distribute liquor-by-the-drink tax proceeds pro rata among all schools in the county based on average daily attendance.

The Chancery Court granted summary judgment in favor of city. County appealed. The Court of Appeals reversed. City was granted permission to appeal, and the case was consolidated with four similar cases for oral argument only.

The Supreme Court held that city was not required to share its liquor-by-the-drink tax proceeds with county.

City, which had approved liquor-by-the-drink sales, was not required to share its liquor-by-the-drink tax proceeds with county, which had not approved such sales, despite contention that statute required city to distribute tax proceeds pro rata among all schools in county based on average daily attendance; statute required distribution of proceeds in “same manner as the county property tax for schools is expended and distributed,” and city had its own school system separate from county school system.




EMINENT DOMAIN - TEXAS

KMS Retail Rowlett, LP v. City of Rowlett

Supreme Court of Texas - May 17, 2019 - S.W.3d - 2019 WL 2147205

City filed petition to condemn property owner’s private road easement to convert it to public road connecting several commercial retail and restaurant sites, awarding owner damages of $31,662, and owner objected, claiming that the taking was illegal.

The County Court at Law granted summary judgment to city. Owner appealed. The Dallas Court of Appeals affirmed. Owner filed petition for review.

The Supreme Court held that:

Transportation Code section authorizing creation of regional mobility authorities for purpose of constructing, maintaining, and operating transportation projects did not concern similar subject matter and possess same general purpose, as would warrant using Transportation Code’s definition of “transportation project” in interpreting Government Code’s limitation on taking of private property through use of eminent domain for transportation projects, where Transportation Code defined “transportation project” for limited purpose of delineating types of projects it authorized regional mobility authorities to undertake, while Government Code addressed “transportation projects” only to define exception to statute’s applicability.

City’s condemnation of property owner’s private road easement to convert it to public road connecting several commercial retail and restaurant sites was statutorily exempt from prohibitions on takings, even if public road to be constructed would not comply with standards imposed by city’s master thoroughfare plan, where statutory exemption’s definition of “public road” did not vary according to standards set by local government entities.

City’s condemnation of property owner’s private road easement to convert it to public road connecting several commercial retail and restaurant sites was necessary for a constitutional public use, even if it was motivated by request of private property owner to attain private benefit, where, regardless of any ulterior motive, taking was necessary for traffic circulation and cross-access between retail areas.

City’s taking of property owner’s private road easement for public use was not fraudulent, even if it also conferred private benefit upon owner of neighboring tract of land, where, even if city was motivated to confer private benefit, taking easement to convert it to public road connecting several commercial retail and restaurant sites plainly benefited public at large.




IMMUNITY - TEXAS

Dallas/Fort Worth International Airport Board v. Vizant Technologies, LLC

Supreme Court of Texas - May 17, 2019 - S.W.3d - 2019 WL 2147262

Consultant for analyzing airport board’s credit-card processing costs filed suit against board for breach of contract, fraudulent inducement, fraud in the performance, promissory estoppel, and attorney fees after board denied request to seek authorization for higher fee.

The District Court denied board’s plea to the jurisdiction. Board filed interlocutory appeal. The Dallas Court of Appeals affirmed in part and reversed and rendered in part. Board’s petition for review was granted.

The Supreme Court held that:

Airport board was acting in governmental, rather than proprietary, capacity when it entered into contract with consultant to analyze and reduce airport expenses for payment processing, and, thus, governmental immunity applied to consultant’s claim for breach of contract by failing to seek authorization to increase payment to consultant; contract was for analyzing and reducing airport’s expenses.

Airport board consultant’s failure to file cross-petition seeking Supreme Court review did not result in waiver of challenge to Court of Appeals’ holding on immunity that board was acting in governmental, rather than proprietary, capacity in connection with contract, where consultant did not challenge Court of Appeals’ decision to reverse trial court judgment for consultant on fraud and estoppel claims, Court of Appeals affirmed trial court’s refusal to dismiss contract claim, and consultant did not seek to alter affirmance, but raised proprietary-function argument as alternative basis to support judgment.

Consultant’s contract requiring airport board to make good faith effort to authorize higher payment than $50,000 did not state essential terms of a legally enforceable agreement, and, thus, the agreement was not subject to subchapter on waiver of sovereign immunity for breach of contract claims.

Any amounts that consultant could recover from airport board for breach of agreement to make good faith effort to authorize higher payment above $50,000 were “consequential damages” other than delay damages, and, thus, board’s sovereign immunity was not waived on consultant’s claim for breach of contract by failing to make good faith effort to authorize higher payment under contract with formula tied to board’s savings in payment processing expenses; board could have refused to approve failure to pay any or all of amount based on formula for any number of reasons, and its failure to pay higher amount was not a necessary or usual result of its alleged failure to make good faith effort.




TAX - TENNESSEE

Washington County School System v. City of Johnson City

Supreme Court of Tennessee, at Knoxville - May 8, 2019 - S.W.3d - 2019 WL 2022368

County school district brought action against city alleging that county did not receive its allocated share of the tax revenue designated for education that was generated by liquor-by-the-drink (LBD) sales in the city. County intervened.

The Chancery Court granted summary judgment in favor of plaintiffs. City filed interlocutory appeal. The Court of Appeals reversed and granted summary judgment in favor of city. Plaintiffs appealed.

The Supreme Court held that local education provision of LBD sales tax distribution statute did not require city to share half of its LBD tax proceeds with the county pro rata.

Local education provision of liquor-by-the-drink (LBD) sales tax distribution statute, requiring municipalities to expend and distribute one-half of their LBD tax proceeds in the same manner as the county property tax for schools was expended and distributed by the county, did not require city to share half of its LBD tax proceeds with the county and other school systems in the county pro rata; rather, the provision directed city to expend and distribute the education portion of its LBD tax proceeds in support of its own municipal school system.




MSRB Seeks Comment on Rule G-23 on Activities of Financial Advisors.

Washington, DC – In connection with its ongoing retrospective review of its rules and guidance, the Municipal Securities Rulemaking Board (MSRB) is seeking comment on MSRB Rule G-23 and related MSRB interpretive guidance. MSRB Notice 2019-13 solicits input on whether Rule G-23’s requirements for brokers, dealer and municipal securities dealers (collectively, “dealers”) acting in a financial advisor capacity remain appropriate in light of the regulatory framework implemented for municipal advisors and other changes in the municipal securities market since Rule G-23 was last amended in 2011.

Rule G-23 establishes ethical standards and disclosure requirements for dealers who act as financial advisors to issuers with respect to the issuance of municipal securities, and importantly, prohibits such a dealer from underwriting the same issuance. The rule predates the implementation of rules for municipal advisors established by the MSRB and the U.S. Securities and Exchange Commission (SEC).

“As part of our retrospective rule review this year, we are evaluating Rule G-23 to determine whether changes may be necessary in light of the new regulatory framework for municipal advisors,” said MSRB President and Chief Executive Officer Lynnette Kelly. “Because Rule G-23’s obligations for dealer-financial advisors predates obligations for municipal advisors that include a fiduciary duty to issuers, we are seeking broad public comment on new considerations and market practices that will inform any possible changes to the rule.”

Since the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the MSRB adopted rules for municipal advisors, including MSRB Rule G-42, which establishes conduct standards and other requirements for municipal advisors. The MSRB also adopted an interpretive notice under Rule G-17, on fair dealing, which provides requirements for dealers serving as underwriters of municipal securities. Because of the interrelationship between these requirements and Rule G-23, the MSRB seeks input on whether these requirements are appropriately aligned and to ensure that there are no inconsistencies or unwarranted burdens associated with them.

The MSRB began a formal retrospective rule review in 2012 to help ensure MSRB rules and interpretive guidance are effective in their principal goal of protecting investors, issuers and the public interest. The retrospective review also seeks to ensure that MSRB rules are not overly burdensome, are clear and harmonized with the rules of other regulators, as appropriate, and are reflective of current market practices. In October 2018, the Board identified the continuation of its ongoing retrospective rule review as a strategic priority for its current fiscal year and subsequently developed criteria to help identify priority rules or rule areas for review.

Date: May 20, 2019

Contact: Jennifer A. Galloway, Chief Communications Officer
202-838-1500
jgalloway@msrb.org




Where’s the Greenium?

This study investigates whether investors are willing to trade-off wealth for societal benefits. We take advantage of unique institutional features of the municipal securities market to provide insight into this question. Since 2013, over $23 billion Green Bonds have been issued to fund eco-friendly projects. Comparing Green securities to nearly identical securities issued for non-Green purposes by the same issuers on the same day, we observe economically identical pricing for Green and non-Green issues. In contrast to a number of recent theoretical and experimental studies, we find that in real market settings investors appear entirely unwilling to forgo wealth to invest in environmentally sustainable projects. When risk and payoffs are held constant, municipal investors view Green and non-Green securities by the same issuer as almost exact substitutes. Thus, the “greenium” is essentially zero.

Download the Study.

Stanford Graduate School of Business

By David F. Larcker, Edward M. Watts

February 22,2019

Working Paper No. 3766




GASB Proposes Guidance on Cloud Computing and Similar Subscription-Based IT Arrangements.

Norwalk, CT, May 21, 2019 — The Governmental Accounting Standards Board (GASB) has proposed new guidance on the accounting and financial reporting for subscription-based information technology arrangements (SBITAs), which have become increasingly prevalent among state and local governments over the past several years.

The Exposure Draft, Subscription-Based Information Technology Arrangements, effectively would apply many of the provisions of Statement No. 87, Leases, to subscription-based transactions. The Exposure Draft proposes:

Although existing GASB literature addresses on-premise computer software—either internally developed or acquired through perpetual licensing agreements—stakeholders have raised questions regarding the proper accounting for and reporting of cloud computing and other remote-access forms of software applications and data storage, which are subscription based. The lack of guidance caused inconsistency in accounting and financial reporting for SBITAs.

The proposed Statement would be effective for fiscal years beginning after June 15, 2021, and all reporting periods thereafter. Early application would be encouraged.

The Exposure Draft is available on the GASB website, www.gasb.org. The GASB invites stakeholders to review the proposal and provide comments by August 23, 2019.




Cyberattack Hobbles Baltimore for Two Weeks and Counting.

City faces second ransomware attack in 15 months; water bills, home sales face delays

BALTIMORE—About 10,000 city government computers here remain frozen two weeks after a disruptive cyberattack that has delayed home sales and halted water bills.

Baltimore was hit May 7 by hackers demanding an undisclosed sum to unlock computers. The city hasn’t paid, and the Federal Bureau of Investigation is probing the incident. Mayor Bernard C. “Jack” Young has warned it could take months to recover some systems.

“It’s extremely alarming,” said City Council President Brandon Scott.

This is Baltimore’s second cyberattack in 15 months. In March 2018, a short-lived ransomware attack on the city’s 911 system forced dispatchers to temporarily relay addresses and other information to first-responders by phone rather than electronically.

City officials emphasized that key services such as 911 emergency dispatch haven’t been affected by the current cyberattack.

Ransomware attacks are common in both the public and private sectors, and attackers are generally looking to exploit any vulnerability they can turn into extortion for money. After accessing systems through methods like malicious emails, hackers can encrypt files and then demand payment in bitcoin to unlock them.

Local governments are often more vulnerable than private companies, said Bill Siegel, chief executive at Coveware, a Connecticut-based firm that helps entities victimized by cyberattacks. “I think broadly they are not prepared for these sorts of things, they do not have the budget,” he said.

For Baltimore, “I think it’s pretty obvious that they have not been able to stay ahead of it,” said Mr. Siegel, who hasn’t worked with the city on this problem.

Frank Johnson, Baltimore’s chief information officer, didn’t respond to a request to comment Tuesday.

Mr. Scott said he will form a special committee to investigate the episode and city officials’ handling of it, “but most importantly, how they’re going to work to have this not happen in the future.”

While the city and outside contractors continued working Monday to restore the municipal computer system, officials began implementing a workaround to allow home sales to proceed.

Between 200 and 300 closings have been hung up because the city couldn’t tell title insurers whether the seller had any unpaid liens, said Alan Ingraham, chief executive of the Greater Baltimore Board of Realtors.

Starting Monday, sellers were able to sign an affidavit promising to pay any liens, such as unpaid water bills, that are discovered once the computers come back online. Mr. Young’s office said the city processed 42 applications for property deeds on the first day of the workaround.

Mark Glazer, executive director of the Maryland Land Title Association, a trade group for title insurers and agents, said this helps but he hopes the city resumes full operations quickly. May and June are busy months for deal closings, he said.

Meanwhile, the problems continue for some city agencies. Epidemiologists in Baltimore’s health department can’t access the state network that helps them warn the public when bad batches of street drugs trigger overdoses. And the city’s public-works department can’t generate new water bills for customers, which could mean residents will get unusually high bills once the problem is fixed.

“We can’t see the consumption data that our meters are collecting and sending to us,” said Jeff Raymond, a spokesman for the public-works department.

Greenville, N.C., was attacked last month by the same type of ransomware afflicting Baltimore, dubbed Robbinhood. The attackers demanded 13 bitcoins—worth roughly $69,000 at that point—to unlock the city’s files. The city didn’t pay, spokesman Brock Letchworth said in an email.

“While not 100% restored, all of our major technology needs are now being met,” he said.

Atlanta last year endured one of the highest-profile ransomware attacks on a major city. The city also refused to pay the ransom demand—$51,000 in that case—and has faced millions of dollars in costs to rebuild and bolster defenses.

In Baltimore, Mr. Scott said he pushed city officials to strengthen cyber defenses after last year’s 911 hack but that they “decided not to invest in this area.”

A spokesman for Mr. Young, who became mayor May 2 upon the resignation of Catherine Pugh, said Mr. Young has directed officials to obtain cybersecurity insurance, which would help offset the cost of any future hacks.

The Wall Street Journal

By Scott Calvert and Jon Kamp

Updated May 21, 2019 4:48 p.m. ET




Legislation to Restore Tax-Exempt Advance Refundings Introduced.

The House Municipal Finance Caucus Co-Chairs Rep. Steve Stivers (R-OH) and Rep. Dutch Ruppersberger (D-MD) have introduced legislation with 10 co-sponsors, that would fully reinstate tax-exempt advance refundings. Since their elimination in the 2017 Tax Cuts and Jobs Act, reinstatement of tax-exempt advance refundings has been a top priority of the BDA. Working with our partners on Capitol Hill and within the issuer community, the BDA has been raising awareness and interest in the legislation, including assisting in the drafting of similar legislation in 2018. The BDA is currently working with the House Municipal Finance Caucus to identify Senate offices to draft a companion bill, while also identifying House Members for co-sponsorship. Building off the recent success of the “Dear Colleague,” the group hopes to dramatically increase the number of co-sponsors from the previous high of 20.

Upcoming Events

Bond Dealers of America

May 20, 2019




Fitch Rtgs: April Revenue Positive for US States; Sustainability Unclear

Fitch Ratings-New York-23 May 2019: US states’ revenue data through the key tax collection month of April indicate generally positive results for widely varying reasons, but continued revenue volatility brings into question the sustainability of the positive trend, says Fitch Ratings. The December 2017 federal Tax Cuts and Jobs Act (TCJA) contributed to observed volatility, but other federal actions, namely the US Supreme Court’s Wayfair decision, likely played a role as well. Revenue volatility will not generally affect ratings in the short term but it does make revenue forecasting more complex and challenges states’ ability to manage their budgets.

April 15 is the tax filing deadline for nearly all states. Of the 32 states reporting monthly revenues through April and reviewed by Fitch, 31 indicate yoy growth. The median growth rate is 6.3%, consistent with last year’s trend. Personal income tax (PIT) results remain a key driver. State PIT collections rebounded in April from January’s weakness. The median change in PIT revenue accelerated from a 1% yoy decline through January, with 34 states reporting, to 5.7% growth through April, with 28 states reporting.

While very few states reported details, Fitch believes non-withholding PIT collections are a key driver in the stronger April performance. Connecticut, Massachusetts, Montana and Virginia reported withholding versus non-withholding results and, in all four, trends in withholding collections were relatively consistent between January and April but the pace for non-withholding collections improved sharply in April.

Continue reading.

23 MAY 2019 02:04 PM ET




Fitch Webinar: U.S. State & Local Pension Investments - Concerns Grow with Riskier Allocations, Lower Returns

Now Available On-Demand

Fitch’s webinar discusses our recent report on U.S. state and local pension investment portfolios. We discuss the trend of public pension plans increasing their investment allocations in riskier asset classes over the past two economic cycles, raising their potential volatility and exposing participating governments to higher funding risks, including potentially higher contributions.

Register for the Webinar.




Why Patient Consumerism Will Further Define U.S. Not-For-Profit Healthcare.

The metamorphosis of U.S. not-for-profit healthcare into a more consumer-driven and population-health focused model will continue. No one knows for sure what change or challenges lie ahead, but as Heraclitus said around 500 BC, ‘Change is the Only Constant’.

Non-Traditional Entrants

Non-traditional competitive entrants aiming to design healthcare around the consumer began in earnest two decades with the arrival of WebMD, though it has reached a crescendo of late with Amazon, Apple and Haven now leaving their mark. “Consumerism” is no longer a new buzzword for not-for-profit healthcare but rather a concept that will radically overhaul healthcare delivery over the longer term.

The inexorable rise of consumerism will result in a more competitive operating environment across the acuity spectrum, particularly on the front-end where non-traditional competitors will get between more traditional providers and their patient at the earliest possible stage. A successful response to this will either require significant rethinking of the entire patient experience and care re-design around the consumer versus “the system”, or at the very least, some level of partnership that might reduce capital and technological spending, but which has the impact of resulting in a “half a loaf is better than none” strategy.

Legislative Changes

The legislative environment has also changed immeasurably for not-for-profit healthcare. The political debate that led to the passage of the Affordable Care Act (ACA) a few years ago has come full circle, with many prominent Democratic presidential hopefuls now espousing a “Medicare-for-All” approach. While “Medicare-for-All” has a very low likelihood of happening, it would be a significant net negative for rated not-for-profit hospitals. Realistically, ‘a “repair and replace” of the ACA is more likely with public option really dictating how it is ultimately designed.

If constructed as an independent quasi-governmental authority where hospitals could negotiate rates and terms, this could expand coverage considerably to many patients who would then have insurance that pays at something close to commercial rates. Conversely, if public option prefers an add-on to Medicare, this could have the possibility of being a “back door” to Medicare-for-all.

Conclusion

Change and challenge lie ahead for not-for-profit hospitals and health systems. Despite recent heavy headwinds, the non-profit healthcare sector has historically been successful over an extended period of time — through ups, downs, and through constant change. Here’s to the next twenty years!

whyforum.com

by Kevin Holloran

May 21, 2019




Fitch Ratings: Strong Economy Continues to Propel California's Budget

Fitch Ratings-New York-20 May 2019: The updated budget proposal for fiscal 2020, released by Governor Newsom in his “May Revise,” continues to build budgetary resilience, while also increasing spending on education and social welfare programs, says Fitch Ratings. The budget revision takes advantage of strong revenue collections in the current fiscal 2019 and a $1.7 billion increase in the forecast for fiscal 2020, as compared to the January budget proposal, propelled by continued strength in the California economy that is driving higher personal and corporate income tax collections. The budget focuses on sustainability of program expansions through use of one-time spending, continues to pay down long-term liabilities, and funds the rainy day fund. The approach taken in the revised budget appears prudent, in Fitch’s view, and an enacted budget with similar priorities would bode well for continued fiscal stability in light of the state’s volatile tax structure and the inevitability of a future economic downturn.

Fitch’s assessment of the state’s credit quality assumes a continuation of the strong budget management the state has demonstrated through this extended period of economic recovery and expansion; the governor’s proposed budget is consistent with this assumption. California’s ‘AA-‘ Issuer Default Rating also recognizes its large and diverse economy, solid ability to manage expenses through the economic cycle and moderate level of liabilities; although California’s flexibility is somewhat more restricted than most states due to its constitutional requirement for funding education and voter initiatives that limit policymakers’ discretion.

Reasonable Assumptions for Revenue Growth

The governor’s budget proposal is based on a revenue forecast of modest growth that reflects the continued expansion of the California economy tempered by the risk that the current economic expansion has passed its peak. It also accommodates the expectation of slower out-year revenue growth by allowing certain program expansions to sunset; this should help to maintain structural budgetary balance.

The proposed general fund budget assumes 3.4% growth in revenues over the current fiscal year to $147.8 billion and estimates that current year revenues will exceed the forecast upon which the fiscal 2019 budget was enacted by $34.6 billion (3.3%) and total $142.9 billion, driven by strong capital gains and corporate income tax collections. The 3.4% growth rate for fiscal 2020 is below the average growth rate experienced by the state since emerging from the recession, taking into account various changes in tax law related to personal income and sales taxes. Much of the increase in revenue will be automatically allocated to K-14 education under Proposition 98, but will also support increased spending for Medi-Cal (California’s Medicaid program), higher education, programs that counteract poverty and homelessness, climate change, infrastructure, and paying down liabilities.

Building Budget Resiliency

The governor’s revised budget proposal allocates $15 billion to building budgetary resiliency by adding to reserves and paying down unfunded pension liabilities, debt, and deferrals, an increase of $1.4 billion over the January proposal. The governor is proposing to set aside $2.2 billion from fiscal 2020 revenues in the state’s rainy day fund (the Budget Stabilization Account), $1.2 billion more than initially proposed in January. This would bring the balance to $16.5 billion, reaching 100% of the target of 10% of tax revenues as originally detailed in Proposition 2, which established the fund. The governor has offered a new interpretation of Proposition 2 that does not count previous supplemental contributions toward the required funding level, potentially raising the deposits to the rainy day fund. A fully funded rainy day fund supports the state’s very strong gap-closing capacity and would help it to weather a downturn in the economy, while maintaining financial flexibility, in contrast to prior economic downturns.

In addition to the rainy day fund, the governor continues to propose adding $700 million to the Safety Net Reserve that was initially funded at $200 million in the fiscal 2019 budget, but lowering the balance in the Special Fund for Economic Uncertainties to $1.645 billion from just under $2 billion, for a net increase of $537 million in discretionary reserves. The revised budget proposal makes the first ever deposit ($389 million) into the Public School System Stabilization Account, as required by Proposition 2. This reserve is intended to offset volatility in school funding in the event of a downturn.

Governor Newsom’s application of excess revenues to one-time supplemental spending in fiscal 2019 to pay down long-term liabilities and eliminate remaining budgetary deferrals bodes well for a continued balanced approach to budgeting under the new administration. This practice also provides flexibility to maintain balanced operations if revenue growth expectations are not realized. At its peak, the state’s budgetary borrowing totalled approximately $35 billion, including outstanding debt in the form of the Economic Recovery Bonds, payment deferrals to schools and local governments, payroll shifts between fiscal years and interfund borrowing. The governor’s budget proposal for fiscal 2020 eliminates the final pieces of budgetary borrowing, allowing the state to direct revenues generated from Proposition 2 to other long-term liabilities, including for pensions and other post-employment benefits.

Longer term budget sustainability also is provided by the application of surplus revenues to one-time spending, including supplemental contributions to the retirement funds: $3 billion for CalPERS and $2.3 billion to CalSTRS as supplemental appropriations in the current year plus $1.1 billion for CalSTRS proposed for fiscal 2020. These are intended both to reduce employer contribution rates and to provide savings over time. Other one-time spending focuses primarily on education and housing, with facilities for all-day kindergarten, expanded childcare facilities, and a variety of grants and incentives designed to address housing production and homelessness.

The revised budget would increase ongoing spending by $3.4 billion, approximately $500 million more than proposed in January and higher than in recent budgets. However, as the out-year revenue forecast is slightly more pessimistic than was the case in January, the governor is proposing sunsets to several categories of program expenditures in order to avoid emergence of a structural deficit.

Adjustments to Spending Proposals

The governor is not making major changes to the spending proposed in the January budget, although there are several adjustments. Of note is an increase in state support for programs to address homelessness, with the governor proposing $1 billion in spending, including $650 million allocated to local governments for emergency aid. The revision also increases the health and human services budget request by $1.1 billion over the January proposal. Other more modest changes include, slowing the creation of additional pre-school slots, a priority highlighted in the budget, recognizing both longer implementation time and the possibility of slower revenue growth.

Contact:

Karen Krop
Senior Director
+1-212-908-0661
Fitch Ratings, Inc.
33 Whitehall Street
New York, NY 10004

Karen Ribble
Senior Director
+1-415-732-5611

Media Relations: Sandro Scenga, New York, Tel: +1 212 908 0278, Email: sandro.scenga@thefitchgroup.com

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Muni-Junk Titan Nuveen Starts Fund to Take Advantage of Defaults.

Nuveen, a perennial bull on risky municipal debt, is planning a new fund to invest in state and local government bonds in distress, default or in bankruptcy, according to a securities filing.

Nuveen’s Municipal High Yield & Special Situations Fund, a closed-end fund, will also invest in securities with complex structures that would render them unsuitable for certain investors, according to a preliminary prospectus filed Thursday with the U.S. Securities and Exchange Commission.

“Special situations municipal securities, in particular, offer complexity risk premiums (stemming from the work-out expertise required to negotiate security improvements, including rate covenants, reserve funds and other security structure enhancements), which in turn may create significant investment opportunity for the Fund,” Nuveen said in the filing.

Nuveen’s move comes as investors including Goldman Sachs Group Inc. and Knighthead Capital Management are wagering there’s a coming wave of defaults in the municipal-bond market as the economic cycle turns and distressed cities and speculative projects have trouble paying back loans.

Nuveen has led a charge of investors into riskier municipal bonds to finance shopping malls, refineries, charter schools, assisted living centers and waste-to-energy facilities. Nuveen, which runs a $19.5 billion high-yield municipal bond fund, is the largest investor in Virgin Trains USA — a new privately-operated railroad that runs from Miami to West Palm Beach and is expanding to Orlando. It also owns debt sold for the American Dream shopping mall and indoor amusement park in New Jersey’s Meadowlands.

Demand for high-yield muni debt, coupled with a lack of new supply, has driven the sector to a 5.5% return this year, according to the Bloomberg Barclays index.

Nuveen spokeswoman Kristyna Munoz declined to comment, citing a quiet period between the filing of the registration and the initial public offering of the shares.

The fund will invest 65% of assets in unrated bonds or those with grades of BBB or lower and will use borrowed money to buy bonds. The fund will be operated as an “interval fund,” a type of investment company that periodically offers to repurchase its shares from shareholders rather than trading in the secondary market.

Still, it may be hard for the fund to put money to work as default rates are much lower than the corporate or sovereign bond markets. From 2007 through 2016, a key default rate on municipal bonds graded by Moody’s Investors Service was 0.15%, compared with 6.92% for corporate debt.

Bloomberg

By Martin Z Braun

May 24, 2019, 9:53 AM PDT

— With assistance by Amanda Albright




High-Yield Munis Outperform Fixed Income in 2019.

John Carney, head of municipal strategy at BlackRock, discusses the factors behind the strength of the high-yield municipal bond market. He speaks with Bloomberg’s Taylor Riggs in this week’s “Muni Moment” on “Bloomberg Markets.”

Watch video.

Bloomberg Markets – Muni MomentTV Shows

May 22nd, 2019, 9:43 AM PDT




Wall Street Bankers, Muni Buyers Welcome Airport Building Boom.

Flyers aren’t the only ones benefiting from efforts at U.S. airports to make themselves bigger and better. The $3.8 trillion municipal-bond market, desperate for new bond deals, is reaping gains from the billion-dollar revamps.

The Dallas Fort Worth International Airport, the nation’s fourth busiest, is the latest to announce an expansion, saying it intends to spend as much as $3.5 billion for a new terminal and other projects. Kansas City International and Chicago O’Hare International Airports have also kicked off big construction plans to keep up with the growing volume of passengers.

Continue reading.

Bloomberg Markets

By Amanda Albright

May 21, 2019, 10:37 AM PDT




Health-Care Munis Gobbled Up in Yield-Starved ‘Feeding Frenzy’

Tom Casey, senior portfolio manager at Mellon Investments Corp., likes health-care bonds. The problem is that everyone else in the $3.8 trillion municipal-bond market does too.

That’s because the hospital and health-care sector often features mid- to lower-rated deals that can offer investors some additional yield — something that is in high demand amid an era of low interest rates. The billions of dollars that have flooded the state and local debt market in 2019 have only heightened that craving.

“The inability to access deals which are, in theory, attractive is extraordinarily difficult,” said Casey, who helps manage $25 billion in municipals at Mellon. “That’s a trend that has been frustrating as an investor.”

While the dynamic may irk buyers, health-care and hospital borrowers have scored lower costs thanks to the strong demand for their debt. Atrius Health, a nonprofit medical group in Massachusetts, borrowed $137 million in tax-exempt municipal bonds for the first time this month and didn’t have to make any concessions on the deal, said Brian Wynne, head of public finance at Morgan Stanley, the underwriter on the deal.

Wynne said bankers met with more than 40 investors to discuss the offering. It ended up “significantly” oversubscribed, helping to lower yields by about 25 basis points by the time it priced, he said.

The securities also gained in the secondary market, a signal of strong demand. Debt maturing in 2049 traded at 104 cents on the dollar on May 16, higher than its initial price of 101.2 cents on the dollar.

Also adding to the “food fight” for health-care bonds is the changing capital needs of the industry, said Karleen Strayer, head of municipal research at Wilmington Trust. Health-care companies have become more focused on providing outpatient care and are reluctant to sell debt to build inpatient facilities. That’s made new securities even more scarce, she said.

Hospital revenue bond issuance of about $7 billion this year is on pace to fall short of last year’s $20.7 billion of total sales, according to data compiled by Bloomberg.

“Because the supply is so tight, every time a health-care deal comes to market, there seems to be a whole lot of interest in it,” Strayer said.

The “feeding frenzy” for health-care debt isn’t likely to ease anytime soon, given the amount of cash pouring into municipal-bond mutual funds, especially those focused on high-yield debt, Casey said. Such funds notched their 19th straight week of inflows last week, according to Refinitiv’s Lipper US Fund Flows data.

“It doesn’t appear, based on what we’ve seen, that those flows will abate anytime in the near future,” he said.

Bloomberg Markets

By Amanda Albright

May 20, 2019, 10:30 AM PDT

— With assistance by Sowjana Sivaloganathan




Biggest Muni Junk-Bond Fund Plows In as Puerto Rico Debt Rallies.

The biggest buyer of muni junk bonds is big on Puerto Rico.

Nuveen’s $19.5 billion High Yield Municipal Bond Fund, the largest focused on riskier state and local government securities, boosted its stake in debt sold by the bankrupt U.S. territory to $824 million as of April 30, up from $456 million at the end of March and zero in July, according to data compiled by Bloomberg. The company’s Short Duration High Yield Municipal Bond Fund also increased its holdings.

Continue reading.

Bloomberg Markets

By Michelle Kaske

May 22, 2019, 6:41 AM PDT




Rockefeller Foundation Aims to Make Trump Tax Perk Work for Poor.

Wall Street’s obsession with a new tax break that rewards investment in low-income areas has raised doubts that the poor will benefit. Can a modest philanthropic effort change that?

The Rockefeller Foundation is set to announce Tuesday that it will hand out $5.5 million to help six U.S. cities promote “responsible” investment in areas designated as opportunity zones.

Prudential Financial Inc. is contributing to the first award, which will provide $920,000 to Newark, New Jersey. The money will allow a local nonprofit, the Newark Alliance, to hire a chief opportunity zone officer who will be embedded with the city, and two “community engagement specialists.” The grant also comes with two years of technical assistance to help structure deals.

Opportunity zones have set off a fierce debate since they were tucked into President Donald Trump’s 2017 federal tax overhaul. Backers say they’ll draw investment to struggling communities. Critics argue the incentives may end up a handout to the wealthy or mainly benefit areas already on the upswing, potentially making it even costlier for poor people to live there. The law doesn’t require investors to promote social good with their dollars.

“We should have more public and philanthropic guardrails” to ensure the law helps low-income families and workers, said Rajiv J. Shah, president of the Rockefeller Foundation. “We know making grants in six cities is not going to change the trajectory of the law right away,” he said, but ultimately it’s possible to “avoid some of the concerns that have been raised.”

Read a QuickTake on the opportunity zone debate

Rockefeller’s grants are part of a broader effort by philanthropies, public officials and others to make sure the tax break has positive outcomes. The Kresge Foundation pledged $22 million this year to support fund managers who agree to report on their investments in opportunity zones. Jim Sorenson, a prominent impact investor, said this week he’s seeding a $150 million fund that will use a framework designed by U.S. Impact Investing Alliance and the Beeck Center at Georgetown University to measure the good it does in distressed areas.

Still, such endeavors may end up being the exception. Large asset managers like CIM Group and Starwood Capital Group have set out to raise hundreds of millions of dollars to deploy in the zones. Few have formally committed to measuring their impact. In fact, there’s no requirement for investors to publicly divulge whether they’re using the break.

“It’s difficult for municipalities to identify readily the kinds of funds that are coming in,” Newark Mayor Ras Baraka said in an interview. “We really need to figure out how to do that and direct the money in a very deliberate way so it’s not arbitrarily spread in places we don’t want it.”

Bloomberg Markets

By Noah Buhayar

May 21, 2019, 5:30 AM PDT




Blue States Warned of a SALT Apocalypse. It Hasn't Happened.

To listen to New York Governor Andrew Cuomo, the 2017 Republican tax overhaul that limited state and local deductions to $10,000 was a devastating blow. The rich would flee, the middle class would suffer and blue state budgets would bleed.

Perhaps this will come to pass over time, but so far, there are almost no signs of it.

New York, in fact, saw revenue rise $3.7 billion in April from a year earlier, thanks to a shift in timing of taxpayer payments, a stock market that rallied through much of 2018 and a decade-long economic expansion that’s pushed national unemployment to a 50-year low. Similar windfalls arrived in New Jersey, California and Illinois — states that, like New York, had warned of dire consequences from the law.

And it turns out that tax refunds across the U.S. in 2019 — those once-a-year checks from Uncle Sam that people use to pay credit card debt from Christmas or buy a washing machine — were roughly the same size as a year earlier. In all, about 64% of American households paid less in individual income tax for 2018 than they would have had the Tax Cut and Jobs Act not become law, according to the Urban-Brookings Tax Policy Center.

“Any comment that says this is an economic civil war that would gut the middle class is overblown,” said Kim Rueben, the director of the State and Local Finance Initiative at the Tax Policy Center. “If there’s going to be any effect of the SALT limit on the ability of some states to have progressive taxes it’s too early to know that yet.”

Read more: SALT Cap Will Leave About 10.9 Million People Feeling Tax Pain

Taxable Income

In some ways, the $10,000 limit on state and local tax deductions — SALT — is saving states money by lowering their borrowing costs. That’s because investors seeking to reduce their tax bill are plowing a record-setting amount of cash into municipal bonds, driving interest rates lower. The extra yield that investors demand to compensate for the risk of holding Illinois general-obligation bonds, for instance, has fallen to the lowest since May 2015, according to data compiled by Bloomberg.

States are also benefiting from a broader tax base because the law eliminated some exemptions and limited deductions, like mortgage interest. Since states that levy income taxes use federal adjusted gross income or taxable income as the base, they have more income to tax.

Still, the nerves of Democratic governors and their budget officers frayed in December when income tax collections plunged by more than 30 percent from the prior December. Cuomo was quick to call the tax law “politically diabolical” and an act of “economic civil war” against the middle class.

Then April came.

New York collected $3.4 billion more in personal income tax revenue last month than a year earlier, a 57% increase, according to Comptroller Thomas DiNapoli. California took in $19.2 billion in April, exceeding Governor Gavin Newsom’s estimate by $4 billion.

New Jersey had a record April with tax collections up 57%, allowing it to boost forecasts for the year by $377 million and triggering a political battle over how to spend the windfall. Illinois individual and corporate tax revenue was $1.5 billion more than projected, allowing Governor J.B. Pritzker to scrap a plan to put off pension payments.

Timing Change

April personal income tax collections in 28 states and Washington increased by $16.3 billion, or 36.2% year-over-year to $61.4 billion, Bank of America Corp. said.

“SALT caps do not appear to be a broad system risk to state credit quality at this point,” S&P Global Ratings said recently.

A big reason for the sharp bounce-back after December’s deep revenue declines in New York and other high-tax states: The SALT limits caused some people to change when they paid their taxes. Wealthy taxpayers in December 2017 accelerated big tax payments to take advantage of the unlimited state and local tax deduction before it expired. Then, with the SALT deduction capped, that incentive evaporated and taxpayers waited until this April to pay their 2018 taxes.

Also, some individuals failed to adjust their W-4s after the passage of the tax law. So people who underwithheld received more in their paychecks since then but had to pay more tax in April or received lower refunds.

Trending Inline

Still, there are some indications that residents in high-tax states are fretting about the law. Thirteen percent of house-hunters in both New York and California said they have started looking for homes in states with lower taxes, according to a recent survey by brokerage Redfin Corp.

In Westchester County, where a typical property tax bill for a single family home is more than $17,000, the average sales price declined 7.6% between the first quarter of 2018 and the same quarter this year. Sales prices for luxury homes (average price $2 million) plummeted 22% during the same period, according to appraiser Miller Samuel Inc. and brokerage Douglas Elliman Real Estate.

Almost half of income taxes paid to California, New York and New Jersey are from the wealthiest 1% of earners. If they were to move in large enough numbers, those states could be in trouble. New York, New Jersey, Connecticut and Maryland sued the Trump administration last year to invalidate the $10,000 cap, saying that it unfairly targets them. States have sought to pass loopholes around the limit and there’s a push in Congress to reverse it.

But migration rates in high tax states most affected by SALT are below pre-recession levels, and generally in-line with U.S trends, Moody’s Investors Service said in April. Jobs, housing and the weather influence migration more than taxes, according to Moody’s analyst Marcia Van Wagner.

“Armageddon hasn’t resulted from the changes to SALT, but it still may be too early to measure its impact,” said Matt Dalton, chief executive officer of Rye Brook, New York-based Belle Haven Investments, which manages $9 billion of municipal bonds. “You see more mansions listed in New York. Manhattan real estate sales just had their worst quarter in a decade.”

Read more: Trump SALT Change Isn’t Causing People to Flee New York: Moody’s

Bloomberg Politics

By Martin Z Braun

May 21, 2019, 3:00 AM PDT

— With assistance by Patrick Clark




The Only 2 States That Can't Afford a Recession.

SPEED READ:

The chronic budget-balancing struggles of Illinois and New Jersey since the Great Recession have earned them a dubious distinction this week: They are the only two states not prepared to weather the next recession.

That was the assessment from Moody’s Investors Service, which measured how drastically each state’s revenue was likely to drop during a mild recession and whether the state had budget reserves or other funds available to help cover the gap. The analysis also evaluated what would happen to public pension funds if a recession leads to a loss of the investment assets that pay benefits.

When it comes to pension debt, Illinois has more than six times the size of its annual revenue, while New Jersey’s is more than triple, according to Moody’s. Illinois has enough savings to cover a few months of revenue declines, but New Jersey’s would cover even less. (Louisiana, New York and Pennsylvania also have slim-to-no reserves.)

Illinois Gov. J.B. Pritzker is under pressure to close a billion-dollar budget gap and address $133.5 billion in unfunded pension liabilities. While his plan to eliminate the state’s flat income tax in favor of a progressive structure is aimed at addressing these two problems, it would also make the state’s tax revenue more volatile and susceptible to declines during a recession.

New Jersey Gov. Phil Murphy is advocating a so-called millionaire’s tax to help his state’s chronic budget woes. But legislative leaders say it won’t pass. State Treasurer Elizabeth Maher Muoio, who has advocated for the millionaire’s tax, issued a statement in response to the Moody’s report and called on the legislature to stop “punting on its responsibilities” to bolster budget reserves.

“While our projected surplus is certainly better than the far-too-risky position New Jersey had become accustomed to in recent years,” she said, “we are still far behind most states when it comes to being adequately positioned to weather a future economic downturn.”

The findings are an update from the first report of this kind that Moody’s conducted three years ago. That report, which did not include pension risk and only studied the 20 most populous states, found that California and Illinois were the least-prepared.

California has since added to its savings and is now rated by Moody’s as moderately prepared, meaning it has enough in reserves and other financial flexibility to weather a recession with mild adjustments, such as spending cuts.

GOVERNING.COM

BY LIZ FARMER | MAY 24, 2019 AT 4:00 AM




Opportunity Zones Skip Over Hard-Hit Rural Places.

Shelterforce is right on the money in their article, “Pushing Opportunity Zones to Fulfill Their Promise.” The piece urges urban leaders across the country to set guiding principles to make sure this new tax incentive, called the “most significant community development program to pass in a generation,” leads to equitable development and not displacement of low-income residents and people of color.

Opportunity Zones were created by the federal tax overhaul in 2017 to entice private investors to underserved areas by eliminating capital gains taxes owed on prior investments if reinvested in Opportunity Zone communities for at least a decade. The new program has already attracted $28 billion in investment capacity.

Continue reading.

Nonprofit Quarterly

by Debby Warren

May 17, 2019




5 Questions Colleges Should Ask Before Engaging in a Public-Private Partnership.

More institutions are looking to these deals for projects central to academics, raising new questions for their oversight and objectives.

Public-private partnerships (P3s), or the practice of sharing responsibility for providing a good or service with a for-profit company, are not new to higher education. Colleges have long outsourced elements such as food and laundry services, bookstores, custodial work and building construction.

In recent years, however, those partnerships have expanded to include academics and other pieces of the student experience that traditionally have been closely held, including online education, recruitment and even immersive learning experiences.

Such partnerships, however, involve more risk and “a level of skill set and competency to be able to both negotiate and to start up and manage that many universities are not set up or haven’t built themselves up to be able to address,” said Michelle Marks, vice president for academic innovation and new ventures at George Mason University, during a conference on the topic hosted there last week. “The reality today is that we can’t do it alone.”

Colleges are looking to P3s to help them quickly and nimbly respond to the range of headwinds reshaping the sector, among them: employers demanding more and different types of skills from graduates, the need to offer a wider range of credentials, and growing financial pressures.

In a survey of 249 college executives by The Chronicle of Higher Education in conjunction with the conference, the majority of respondents (83%) said their institutions are partnering more with private firms. While more than half (53%) are doing so on campus infrastructure projects, others are using them to outsource online programs (42%), student housing (39%) and predictive analytics (31%). Colleges are drawn to these companies primarily for their specialized skills, access to investment capital and the ability to quickly bring a project to market, respondents said.

“We have seen a change in the appetite of the governing boards to go into these public-private partnerships,” said Michael Amiridis, chancellor of the University of Illinois at Chicago (UIC). “That was not necessarily the case 20 years ago.”

But colleges considering a P3 should be mindful that the arrangement is not one size fits all, panelists said during one session. They shared lessons learned from their P3s and advised institutions on what to consider before striking the deal.

Do you need a private partner?

Some P3s are sought after from the start and others are borne from necessity. The latter was the case for Metropolitan State University of Denver, which went over budget on its Aerospace and Engineering Science Building and needed help fitting out one floor. The solution, said Janine Davidson, the university’s president, was to lease the space out to companies in the aerospace and engineering fields, requiring them to offer internships and other hands-on learning for students.

“It’s not just renting out space, like a coffee shop,” she said, adding that the situation must be “a win-win” for the university and the partner.

Additionally, institutions should be able to clearly articulate the P3’s value proposition. “Why are we better off having a partner than doing what we are doing on our own?” Amiridis asked. Beyond financial support, he added, the arrangement must safeguard or enhance a college’s core values, including affordability and access, academic freedom and the integrity and quality of its processes.

It should not, however, be redundant with its core competencies. He noted that The Ohio State University, which has an energy-management P3, has done a “fantastic job” explaining how that service is not a core offering of a university and thus a good candidate for such a deal.

Are core values preserved?

The university must also ensure the P3 enhances the student experience, panelists said. For instance, a P3 allowed Georgia State University to build a student housing project with about 300 more beds than it would have otherwise, and more quickly, said its President Mark Becker. The university, where 59% of undergraduates are Pell Grant-eligible, wanted to ensure the housing remained affordable to students and that they couldn’t tell another entity owned the building.

“We fill these up, we market it, it’s our reputation,” Becker said. “It would be of no use to us to have a 1,100-bed facility that our students couldn’t afford to live in.”

Another of Metropolitan State’s P3s, a commercial hotel connected with its academic hospitality program but run by a third-party company, was designed to direct a portion of its profits to the university’s foundation to fund scholarships and other student support. The program raised $2 million in the first three years, Davidson said, well above the $500,000 initially expected from the first five to 10 years.

“The fact that we had a partner that was interested in doing something philanthropic was a total win,” she said.

Concerns over who has control of what in a P3 are particularly relevant for universities, which historically have had a longer lifespan than the companies with which they partner.

That was true for perhaps the best-known P3 discussed on the panel, Georgia State’s purchase of the 68-acre Turner Field site with Atlanta-based developer Carter to build private student housing, market-rate multifamily units and retail in addition to refitting the stadium.

“We said, ‘Look, in 100 years you’re probably not going to be here,'” whether they go under, get bought out or merge, Becker said. “We’re going to be here in 100 years.”

The same is true for deals with education technology companies given the trend of consolidation among them. “Many of the contracts don’t work for us,” he said, because the university doesn’t want to give up control of its content. Plus, he added, “We don’t know whether (they’re) going to be in business in five years, 10 years or not.”

What is going to change?

Avoiding duplication or redundancy is important, the panelists advised. “What process are you going to change, what are you going to stop doing that you’ve been doing for a long time because it’s no longer necessary on this new platform?” Becker said, in the case of a technology partnership.

Davidson encouraged institutions to use pilots to ease in risk-averse stakeholders. Learning from efforts by peer institutions can also be helpful.

“One of my first questions to everybody is, ‘What’s the norm?'” she said. “Not that I want to jump on the norm, but if I’m going to deviate I’ll do it out of conviction and not out of ignorance.”

Ultimately, permission to think beyond rules, laws and conventions needs to come from the top, Davidson said.

The right legal support can also help. “You want a lawyer who sees her or his job as ‘You tell me what you want to get done and I’ll figure out a way to do it legally,'” Becker said, whether that’s changing the law, obtaining a waiver or enduring a long wait to carry out some or all of the project.

“Once you start having those successes,” he continued, “other people who have historically been risk-averse and lived in their lanes want to be part of the next big thing.”

Who will be the point person?

P3s run the risk of consuming small institutions and slowing down operations at larger ones, Amiridis said. For that reason, placing someone in a role akin to a project manager is important. At UIC, a vice chancellor for innovation manages the P3 relationship and engages the rest of the university, he said.

Georgia State, meanwhile, spreads that responsibility across its vice presidents, Becker said; for instance, a partnership for online program management would fall under the purview of the senior vice president for academic affairs. The university’s chief legal counsel works across the board to engage stakeholders and negotiate contracts.

George Mason created a separate position and office to run point on partnerships. That person became Marks, who shifted from her role as vice provost for academic affairs to lead the Office of Academic Innovation and New Ventures, which sits within the provost’s office.

How will you engage the partner?

The outside partner in a P3 is, understandably, looking to profit from the venture. In that way, Becker said, it helped the Turner Field deal that two members of the foundation’s board were experts in such projects and could “have a conversation of equals in the real estate business” with the partner. “What we got for free would have cost us $3 million to $5 million in consulting fees,” he said.

Evaluating potential partners’ track records and whether they are interested in a long-term relationship is also important, Amiridis said. For him, that means meeting face-to-face with that firm’s leaders to learn more about why they are interested in such an arrangement and to ensure their missions are aligned.

In a P3, he said, “we change our role from being owners and managers of projects to managing relationships and managing contracts,” he said. “It’s two different sets of skills.”

And while the shape and language of a P3 contract is critical to establishing purview and accountability, it can only protect against so much. “The glue in the system is the relationships,” Davidson said. “We have tight relationships with these folks and where we didn’t have a tight relationship, we had to tighten it up.”

Education Dive

by Hallie Busta

May 7, 2019




JMP Launches an Opportunity Zone Platform: Portfolio Products.

Also, RIA in a Box introduces a cybersecurity platform for advisors.

JMP OppZone Services has launched an opportunity zone platform. The administrative platform is designed for investors, project sponsors and entrepreneurs who want to get involved in this new type of tax-advantaged investment.

“Navigating the regulations, creating workable investment structures and dealing with the investment timing requirements [of opportunity zones] can be challenging,” said Samuel Weiser, CEO of JMP OppZone Services, in a statement. “JMP’s primary goal is to create efficiency, transparency and scalability for OZ investors and sponsors looking to capitalize on the new law.”

The platform delivers due diligence, consulting, business support services, administration services and investor compliance for tax regulation.

It allows investors to identify opportunity zone investments and make direct investments across multiple zones, with options to self-direct investment or invest jointly with other families and individuals. Sponsors using the platform will have the ability to pool capital while reducing operational and compliance risk, according to Weiser.

RIA in a Box Launches Cybersecurity Platform

The new platform complements the firm’s MyRIA Compliance solution, empowering RIAs to design, implement and document a cybersecurity program within a single interface.

The platform is designed for firms of all sizes and is focused on the human side of cybersecurity, providing security awareness training, email phishing attack simulation, technology inventory and risk assessment. It also offers firms the ability to build a customized information security policy and includes a vendor due diligence tool announced previously at this year’s T3 conference.

“Helping firms strengthen their cybersecurity policies and awareness of vulnerabilities will not only help advisors sleep better at night but provide their clients added confidence that their personal information is security,” said GJ King, president at RIA in a Box.

The new cybersecurity platform can be purchased as a standalone subscription or bundled as part of a firm’s MyRIA Compliance subscription.

North Capital Introduces Evisor Platform

The Salt Lake City-based RIA, which provides financial planning and portfolio management to individuals, families, businesses and nonprofits has introduced a free financial planning platform for individual investors to access online called evisor.com.

Uses can create a customized financial review that incorporates the firm’s proprietary “Lifetime Financial Analysis” tool, but for a 0.25% annual fee the users can open an investment account for North Capital to manage and monitor. An additional fee is involved to access an investment advisor on planning questions not addressed by the online tool. All assets are custodied at Charles Schwab.

Long/Short ETF Debuts With Focus on Undervalued/Overvalued Stocks

The Acquirers Fund (ZIG) is marketing itself as a “true deep value” fund whose long positions are in stocks that “are much more than ‘cheap’ [but] “also have strong, liquid balance sheets, and a robust business capable of generating free cash flows, and more.”

The ETF will hold long positions in companies it deems deeply, truly undervalued and fundamentally strong targets of buyout firms and activist investors who want to force a major corporate change. It will also hold short positions in companies it deems overvalued and financially weak.

The 130/30 long/short strategy tracks the performance of The Acquirer’s Index, which consists of the 30 most deeply undervalued, fundamentally strong stocks and the 30 most overvalued and fundamentally weak stocks that are included in the rules-based index. The index chooses stocks from the largest 25% of U.S.-listed stocks by market cap. ZIG trades on the NYSE Arca and has an expense ratio of 0.94%.

VanEck Launches Muni ETF

The VanEck Vectors Municipal Bond ETF (MAAX) is the latest addition to the firm’s suite of Guided Allocation Funds.

MAXX is an actively managed ETF that seeks to reduce duration and/or credit risk during appropriate times by adjusting allocations primarily among VanEck Vectors municipal exchange-traded products, including the firm’s high-yield, short high-yield, AMT-free long, AMT-free intermediate and AMT-free short municipal index ETFs. Allocations are adjusted based on interest rate and credit opportunities.

The fund seeks maximum total return and income and has a total expense ratio of 0.36%.

ThinkAdvisor

By Bernice Napach | May 20, 2019 at 10:14 AM




S&P Extra Credit: Quarterly Credit Conditions.

This week on Extra Credit Lisa Schroeer talks to Jane Ridley and Chris Morgan about our anticipated U.S. growth and what regional variations we can expect. Hear from Jane on broader U.S. and regional trends and then deep dive with Chris on what’s behind the faster growing regions.

Listen to Audio

May 20, 2019




S&P Charter School Brief: Michigan

As of May 17, 2019, S&P Global Ratings maintains 28 public ratings on Michigan charter schools. Michigan enacted its charter school law in 1993, with the first schools opening in 1994. Today there are about 300 charter schools in the state serving just under 150,000 students, or approximately 10% of the state’s kindergarten through 12th grade (K-12) population.

Continue Reading

May 17, 2019




S&P ESG Industry Report Card: Health Care

Social factors are prevalent considerations in our analysis of health care companies because they often play a crucial role for the communities they serve and derive a portion of their revenue from the government.

Continue Reading

May 21, 2019




Municipal Bonds That Offer the Ultimate Safe Investment.

Everything is bigger in Texas—including a school endowment.

The Texas Permanent School Fund, a 165-year-old state agency, is one of the jewels of the $3.9 trillion municipal bond market. The fund backs $79.1 billion of debt from more than 800 school districts statewide, making it a sizable presence in the muni market.

With triple-A ratings from Moody’s Investors Service and Standard & Poor’s, the school fund is one the most secure credits in munis—or in any debt market—thanks to a large asset base that totaled $44 billion in August 2018.

While most of its assets now consist of financial investments like stocks, bonds, hedge funds, and private equity, its wealth largely originated from mineral rights, including what turned out to be valuable offshore oil fields in the Gulf of Mexico.

Continue reading.

Barron’s

By Andrew Bary

May 24, 2019 9:06 p.m. ET




Puerto Rico’s Bankruptcy Case Casts a Shadow on Billions in Municipal Bonds.

It might come as a surprise that about 10% of the Chicago Board of Education’s long-term debt is rated investment grade, just two years after a budget shortfall threatened to close schools early.

Yet the school district has three series of bonds that are rated ‘A’ by Fitch—for now, at least. That is 7 notches above its other debt, which is solidly junk-rated at BB-. The investment-grade debt was issued in the form of special-revenue bonds, which are structured to provide bondholders with more security and higher recoveries in case of a bankruptcy.

Now those bonds’ ratings are being reviewed for a potential downgrade, after a recent appellate court decision raised questions about the special status of special-revenue bonds. And at least two credit-ratings firms are considering downgrading billions of dollars in debt because of the court ruling, which is the first time an appellate court has addressed the issue.

Continue reading.

Barron’s

By Alexandra Scaggs

Updated May 23, 2019 9:48 a.m. ET




IRS Notice 2019-39: Perpetuating the Gift of Targeted Bond Programs, but Creating Confusion about the Tax-Exempt Current Refunding of Build America Bonds.

To promote the provision of disaster relief and the development (or redevelopment) of economically distressed areas, Congress will at times enact targeted bond programs that authorize the issuance of specialized tax-exempt bonds. Tax-exempt targeted bond programs frequently contain both a cap on the amount of tax-exempt bonds that can be issued under the program and an expiration date. For example, in response to Hurricane Katrina, Congress permitted the issuance of tax-exempt Gulf Opportunity Zone Bonds, which were subject to an aggregate volume cap of about $14.8 billion and which had to be issued before January 1, 2012.

Where a tax-exempt targeted bond program features volume cap limitations or issuance deadlines (or both) and is silent about whether bonds issued under the program can be currently refunded on a tax-exempt basis, uncertainty might exist as to whether program bonds can be currently refunded by tax-exempt bonds issued after the expiration of the program and, if such refunding bonds can be issued, whether they require additional volume cap. The IRS has previously rendered guidance on specific targeted bond programs to address these questions. To achieve efficiency and uniformity in this guidance for existing and future tax-exempt targeted bond programs that are silent regarding refunding matters, the IRS yesterday released Notice 2019-39. This Notice sets forth helpful guidance on the tax-exempt current refunding of bonds issued under a targeted bond program, but it also creates unwarranted confusion regarding the tax-exempt current refunding of Build America Bonds. For more on both of these aspects of the Notice, read on.

Continue reading.

The Public Finance Tax Blog

By Michael Cullers and Cynthia Mog on May 23, 2019

Squire Patton Boggs




Charts of the Week: Transportation infrastructure

This past week marked yet another “Infrastructure Week,” per the White House, yet a $2 trillion concept between the Trump administration and House Democrats foundered due to contention between the president and Democratic leaders. Meanwhile, Brookings experts continue to research and provide analysis on a variety of issues related to infrastructure, including roads, water, and broadband. Here is a sample of recent material focused on transportation.

US INFRASTRUCTURE SPENDING IS DECLINING

Joseph Kane and Adie Tomer from the Metropolitan Policy Program at Brookings observe that “real infrastructure spending nationally has fallen over the past decade, from $450.4 billion in 2007 to $440.5 billion in 2017,” and represents about 2.5 percent of GDP. Read their piece for more findings on changes in spending on infrastructure in the U.S.

Continue reading.

The Brookings Institute

by Fred Dews

Friday, May 24, 2019




John Lettieri: Opportunity Zones and Economic Dynamism (Podcast Episode #30)

How was the Opportunity Zones initiative created in the first place? And why is this program so radically different from…

Read More »

Opportunity Db

May 22, 2019




Puerto Rico Passes Opportunity Zones Regulatory Bill.

Puerto Rico Governor Ricardo Rosselló signed the Puerto Rico Opportunity Zones Development Act last week. The bill creates the regulatory framework for investing in Opportunity Zones on the island and establishes conformity with the federal tax incentive. Several additional incentives are also created by the new law, including:

  1. 18.5 percent tax on the net income of an exempt business.
  2. Exemption from dividend taxation.
  3. 25 percent exemption on patents and property taxes.
  4. 25 percent exemption on construction taxes.
  5. Maximum investment credit of 25 percent, which is transferable.
  6. A credit priority system for “Priority Projects” located in opportunity zones.
  7. Deferral of capital gains invested in opportunity zones, similar to the federal incentive.
  8. Tax exemption for interest earned on loans to exempt businesses.
  9. An expedited permitting process for exempt businesses.

“I see this as the last piece to complete our economic offerings puzzle,” Maria de los Angeles Rivera, a San Juan-based CPA with Kevane Grant Thornton, said via email.

“It is expected that the combination of this law with the [Community Development Block Grant] funds that are coming to [Puerto Rico] for reconstruction and the current tax incentives program in place for many years now, will take [Puerto Rico] to the next level,” Rivera said.

Puerto Rico was granted a special exemption to the rule that capped each state’s opportunity zone designations at 25 percent of their low-income census tracts. Puerto Rico was able to designate 100 percent of their low-income census tracts as opportunity zones. And as a result, nearly the entire island lies in an opportunity zone. See the map of Puerto Rico’s opportunity zones.

The governor’s office projects that the new law will generate over $600 million in capital investment in Puerto Rico.

“[Puerto Rico] is now the most attractive destination to invest,” Rivera said.

Opportunity Db

By Jimmy Atkinson

May 22, 2019




Law Review Article Critiques Local Government Public Nuisance Suits: Reed Smith

Perhaps you recall how President Trump campaigned on behalf of “Big Luther” Strange in Alabama. Strange had been appointed by Alabama’s Governor to fill the Alabama United States Senate seat vacated by Jeff Sessions when Sessions became U.S Attorney General. Trump supported Strange’s effort to win election to the seat in his own right for the term to commence after the interim appointment expired. Big Luther is, indeed, big. At six feet, nine inches, he is the tallest U.S. Senator ever. But Strange lost the Republican primary to Judge Roy Moore, and then Moore went on to lose to Doug Jones.

Sometimes we forget that state attorneys general also – at least usually – had careers as working attorneys who handled the same sorts of discovery and motion issues that fill up the days of most of us. Strange was a lawyer for an important energy company (full disclosure: we represented that same company many years ago), and was once a partner at one of Alabama’s preeminent law firms.

And it turns out that Strange is also an impressive legal scholar. He is the author of “A Prescription for Disaster: How Local Governments’ Abuse of Public Nuisance Claims Wrongly Elevates Courts and Litigants into a Policy-making Role and Subverts the Equitable Administration of Justice,” 70 South Carolina L. Rev. 517 (Spring 2019). It is a useful and good read, and it is not our aim to steal Strange’s thunder. Consider our little summary an invitation to go to the article, study its citations, and follow its argument.

Strange makes the point that nuisance actions originated in criminal law, with the prosecution of such claims reserved for state or government officials seeking injunctive relief or criminal conviction for harms to the public. Strange then traces the evolution and expansion of the theory, with specific allusion to municipal suits against the gun industry for violent crimes, against the oil industry for climate change, and against banks and lenders for subprime lending practices. The last episode outlined in the historical section of the article is the opioids litigation. Strange distinguishes a state AG’s parens patriae authority from local governments, which have authority to recover only for injuries suffered by the municipality/county/whatever itself. It is the latter species of action that troubles Strange.

Strange’s fundamental criticism of local government actions against alleged public nuisance is that they inject litigants and courts into democratic policy-making decisions. He does not favor regulation by litigation, and warns that it implicates separation of powers concerns. Regulatory lawsuits invade legislative powers, and courts are not particularly good at such regulation. Moreover, the subject of the proposed judicial regulation will often be a nonjusticiable political question, which was committed to a coordinate government branch, eludes judicial standards, reeks of policy determinations, and creates the possibility of multifarious pronouncements by different organs of government. Legislatures and regulators possess technical expertise that courts (and juries) lack, and are also peculiarly capable of balancing cross-cutting policy interests.

There are, of course, legal doctrines that should step in and halt lawsuits that infringe upon regulatory regimes. Any reader of this blog will have bumped into dozens of posts about preemption and primary jurisdiction. Strange takes those doctrines seriously – certainly more seriously than the many rogue courts that seem to view them as inconveniences. Wyeth v. Levine is appropriately cabinned by the article. Primary jurisdiction gets the respect it deserves in this article, as does the dormant commerce clause. Strange also sets out how public nuisance suits allege damages that are not traceable to and proximately caused by the defendants’ conduct – with such conduct usually being lawful under the applicable regulatory regime.

The article also makes the point that local government actions disrupt the ability of state attorneys general to bring and manage litigation arising from the same alleged conduct. The actions might be beyond the scope of local governmental authority. Even if within scope, the local government actions raise the specter of double recovery.

Aside from doctrinal barriers and practical dangers, local government suits adversely affect the administration of justice in other ways. Strange describes how the various layers of redundant suits can multiply discovery requests, enable outlier verdicts to distort the overall litigation process, and penalize defendants for conduct occurring outside the relevant jurisdiction.

Anyone who has played a role in local government nuisance litigation will recognize the force of Strange’s insights. The system is messy and sometimes yields unfair results. As is always the case, there are winners and losers. Predatory plaintiff lawyers and policy-making judges seem to think the system is just fine. But Strange makes a compelling case that judicial administration is a loser, as is the regulatory function that weighs costs and benefits for society as a whole.

by Stephen J. McConnell

May 22 2019

Reed Smith LLP




ARRC Releases Recommended Fallback Language for Floating Rate Notes and Syndicated Loans.

“It’s no longer a question of if—but when—LIBOR will become unusable, yet most contracts referencing it don’t adequately account for this eventuality.”

The above statement by Tom Wipf, chair of the Alternative Reference Rates Committee (the “ARRC”), summarizes the driving force behind the ARRC’s release of its final recommended contractual fallback language for U.S. dollar LIBOR denominated floating rate notes (“FRN”)[1] and syndicated business loans (“syndicated loans”)[2] in anticipation of the phasing-out of LIBOR and the transition to a benchmark rate based on the Secured Overnight Financing Rate (“SOFR”).

In making this recommendation, the ARRC intends to set forth robust fallback provisions that provide clarity and specificity upon a LIBOR cessation while also preserving the flexibility needed for any unforeseen circumstances. As this recommendation follows the publication by the International Swaps and Derivatives Association (“ISDA”) for different types of derivatives contracts, the ARRC noted that it strived to align its fallback provisions with the ISDA approach as much as possible.

The recommended fallback language generally addresses the following key terms:

    1. Benchmark Transition Events: trigger events that represent a significant shift away from LIBOR;
    2. Benchmark Replacement: successor adjusted rate that replaces LIBOR; and
    3. Benchmark Replacement Adjustment: the spread adjustment applied to the successor rate to preserve the economic terms of the relevant contract.

Floating Rate Notes

The ARRC’s recommended FRN fallback language can be used in a variety of floating rate securities issued in the capital markets, such as municipal bonds, convertible debt, and other debt issuances in connection with a cessation of LIBOR. It is meant to provide a more robust waterfall for a conversion to SOFR-based rates than the historic waterfall provisions included in FRN documentation. In general, the recommended FRN fallback language provides specificity on the triggers, successor rates, and spread adjustments in an effort to eliminate ambiguity and limit the exercise of discretion by any party. The ARRC’s language includes the following key terms:

– Step 1: Term SOFR + Adjustment

– Step 2: Compounded SOFR (compounded average for tenor in arrears) + Adjustment

– Alternative Step 2: Simple Average SOFR (uncompounded simpler calculation) + Adjustment

– Step 3: Relevant Governmental Body Selected Rate + Adjustment (if SOFR-based rate is discontinued)

– Step 4: ISDA Fallback Rate (the fallback rate embedded in the ISDA standard definitions) + Adjustment

– Step 5: Issuer or its Designee Selected Rate + Adjustment

“Term SOFR” will be a forward-looking term SOFR rate with various tenors, which currently does not exist.

Step 1: ARRC Selected Adjustment (as selected or recommended by the ARRC or other Relevant Government Body)

Step 2: ISDA Fallback Adjustment (to be used with the ISDA Fallback Rate)

Step 3: Issuer or its Designee Selected Adjustment

Syndicated Business Loans

The ARRC recommended two sets of fallback language for new originations of LIBOR-referenced U.S. dollar-denominated syndicated loans: the “hardwired approach” and the “amendment approach,” further described below. Whereas the hardwired approach provides more clarity and certainty upfront as the specific fallbacks are built into the contract, the amendment approach, by providing a framework for negotiating a replacement rate in the future, maximizes flexibility and does not reference any rates or adjustment methodologies not yet existent. Although market participants initially may favor the amendment approach for its flexibility during the transition phase, they eventually may move to the hardwired approach to overcome operational difficulties in amending contracts in volume and the possibility of being subject to manipulation depending on the economic environment at the time of transition, as also noted by the LSTA.[3]

Benchmark Replacements:

– Step 1a: Term SOFR + Adjustment

– Step 1b: Next Available Term SOFR (SOFR for longest tenor that can be determined that is shorter than the applicable tenor) + Adjustment

– Step 2: Compounded SOFR +Adjustment

– Alternative Step 2: Simple Average SOFR + Adjustment

– Step 3: Borrower and Administrative Agent Selected Rate + Adjustment

Benchmark Replacement Adjustments:

– Step 1: ARRC Selected Adjustment

– Step 2: ISDA Fallback Adjustment

– Step 3: Borrower and Administrative Agent Selected Adjustment

Differences from ISDA Fallback Language

While the two permanent cessation triggers included in the ARRC fallback language align with the fallback triggers included in ISDA’s 2018 consultation,[4] the pre-cessation trigger (which permits market participants to transition to an alternative rate when the quality of the benchmark has deteriorated such that it no longer is representative of the underlying market or economic reality) does not align and could create a potential area where the ARRC’s language and ISDA’s language may diverge. On May 16, 2019, ISDA published a consultation[5] on the pre-cessation issue for LIBOR and certain other IBORs seeking market feedback on this pre-cessation trigger and other related issues, but it remains to be seen whether ISDA ultimately will include a similar pre-cessation trigger with the FRN and syndicated loan fallback.

Another area where the ARRC fallback diverges from the proposed ISDA fallback is the primary fallback rate. Whereas the ARRC recommended fallback language references a forward-looking term SOFR rate (which currently does not exist) as the primary fallback rate, the primary fallback rate proposed by the ISDA 2018 consultation is based on the average of SOFRs for the relevant term and compounded in arrears. Market participants should be on the lookout for ISDA’s final fallback language, and to the extent it diverges from the ARRC’s fallback language, market participants should consider whether to adjust the ARRC’s fallback language to eliminate mismatch with any interest rate derivatives they have entered into in order to offset or hedge the floating rate exposure of the FRN or syndicated loan.

Conclusion and Next Steps

The ARRC recommendations offer a helpful framework for market participants to consider adopting into their agreements with appropriate modifications catered to their specific needs. Regardless of what fallback regime is followed, it is critical that market participants inventory existing agreements that could be affected by the cessation of LIBOR, understand their LIBOR exposure across relevant contracts, and develop a timeframe for amendments. Also, determining a robust fallback regime that will be used going forward will help ensure a smooth transition away from LIBOR.

As the next step, the ARRC will be releasing recommended fallback language for bilateral business loans and securitizations soon. The ARRC also expects to consult with a broad range of stakeholders on proposals for fallback language in consumer products in the future.

*****

Paul Hastings lawyers are actively counseling our clients on the cessation of LIBOR as well as the benefits and consequences of each fallback regime for the various products.

[1] The Alternative Reference Rates Committee, ARRC Recommendations Regarding More Robust Fallback Language for New Issuances of LIBOR Floating Rate Notes (2019), https://www.newyorkfed.org/medialibrary/Microsites/arrc/files/2019/FRN_Fallback_Language.pdf.

[2] The Alternative Reference Rates Committee, ARRC Recommendations Regarding More Robust Fallback Language for New Originations of LIBOR Syndicated Loans (2019), https://www.newyorkfed.org/medialibrary/Microsites/arrc/files/2019/Syndicated_Loan_Fallback_Language.pdf.

[3] The Loan Syndications and Trading Association, LIBOR: Free Fallbacking (2019),
https://www.lsta.org/news-and-resources/news/libor-free-fallbacking.

[4] International Swaps and Derivatives Association, Inc., Interbank Offered Rate (IBOR) Fallbacks for 2006 ISA Definitions – Consultation on Certain Aspects of Fallbacks for Derivatives Referencing GBP LIBOR, CHF LIBOR, JPY LIBOR, TIBOR, Euroyen TIBOR and BBSW (2018), http://assets.isda.org/media/f253b540-193/42c13663-pdf.

[5] International Swaps and Derivatives Association, Inc., Consultation on Pre-Cessation Issues for LIBOR and Certain Other Interbank Offered Rates (IBORs) (2019), https://www.isda.org/a/t6tME/Pre-cessation-issues-Consultation.pdf.

By Joyce Sophia Xu, Diona Park, Michael Baker, Scott Faga, Eugene Ferrer, Michael Spafford, Lawrence Kaplan & Daren Stanaway

May 23, 2019

Paul Hastings LLP




Hawkins Advisory: New Current Refunding Guidelines for Bonds Issued Pursuant to Special Authorizations.

On May 22, 2019, the Internal Revenue Service released long-awaited guidance pursuant to which tax-Exempt bonds issued under authorizations directed to special and/or extraordinary circumstances, for which no authority to issue current refunding bonds existed, may now be currently refunded. Attached, please find a Hawkins Advisory describing this guidance.

Read the Advisory.




Risky Municipal Bonds Are on a Hot Streak.

Funds dealing in high-yield munis have drawn $8 billion as investors search further afield for returns

Investors seeking yield are piling into the riskiest corner of the municipal bond market at a pace not seen in decades.

They have poured $8 billion into funds that deal in high-yield muni bonds—or junk munis—this year, the most through May since at least 1992, according to Refinitiv data. Muni-bond funds overall have attracted $37 billion during that same period, the most in almost three decades.

There is “more demand than at any time in recent memory,” said Jeff Burger, a portfolio manager at Mellon Investments Corp., which oversees $25 billion in municipal investments.

Continue reading.

The Wall Street Journal

By Gunjan Banerji

May 27, 2019




Detroit Schools Borrow More and More to Pay Back Bonds.

Detroit’s public school district is borrowing money to make payments on debt it borrowed years ago to fix up schools.

And earlier this month, for the first time in nine consecutive years of this practice, the district had to borrow more than half of the $182.1 million total payment to bondholders for capital debt.

Detroit Public Schools, the standalone entity left in place in 2016 to pay off legacy costs when a new debt-free school district was formed, borrowed $91.5 million from the state’s School Loan Revolving Fund because a greatly reduced property tax base in Detroit does not produce enough tax dollars for the school district to make good on its debt.

Continue reading.

CRAIN’S DETROIT BUSINESS

by CHAD LIVENGOOD

May 26, 2019 12:05 AM




Moody’s: New Jersey’s Recession Preparedness Reserves are Weak.

Three years after Moody’s Corp. municipal finance analysts last evaluated U.S. states’ recession preparedness, it has published an update that looks at four fiscal and credit variables to determine how well states can weather a moderate recession without significant adverse credit impact.

While Moody’s found that most states will be able to weather a moderate recession – due in part to healthy reserves and inherently strong fiscal flexibility, Moody’s found preparedness is stronger for 22 states and moderate for 26 – New Jersey (rated A3/stable) and Illinois (rated Baa3/stable) showed weaker recession preparedness.

States were rated on the following credit factors: revenue volatility, coverage by reserves, financial flexibility and pension risk.

“While current economic conditions are strong, states are aware that a downturn will come eventually and are building reserves to prepare,” said Emily Raimes, vice president and senior credit officer at Moody’s, in a prepared statement. “While most states have healthy reserves and inherently strong fiscal flexibility, Illinois and New Jersey both have low levels of reserves relative to the potential revenue decline in our recession scenario.

“In addition, they both show weakness in their pension risk scores,” Raimes said.

While New Jersey has recently added to its reserves as the state works to improve its fiscal preparedness, Illinois is developing a strategy to improve its pension funding and structural budget balance.

Moody’s added that while fiscal expansions at the federal level have offset state revenue shortfalls in previous recessions, the economy will enter the next recession with less fiscal space than before the financial crisis.

Wide federal budget deficits, a rising debt burden and a polarized political environment have reduced the fiscal space of the United States compared with its position before the most recent recession. The federal government, therefore, might not be in a position to help states in the next recession as it has in the past.

Moody’s says that one way states can deal with a revenue shortfall when a recession hits is to plug a portion of the budget gap with reserves. When estimates of expected reserve levels were applied, Moody’s saw coverage of a revenue decline equal to the state’s largest one-year revenue decline. In this scenario, 26 states would be able to cover the decline solely with reserves.

By: NJBIZ STAFF

May 20, 2019 3:59 pm




Municipalities Holding Out For Feds On Infrastructure (Radio)

MUNIS IN FOCUS: Amanda Albright, Bloomberg Muni reporter, discusses money flowing into muni bond funds, stretched muni prices, dead infrastructure, and Illinois. Hosted by Lisa Abramowicz and Paul Sweeney.

Running time 05:16

Play Episode

Bloomberg Radio

May 24, 2019 — 8:57 AM PDT




TAX - TENNESSEE

Blount County Board of Education v. City of Maryville

Supreme Court of Tennessee, at Knoxville - May 8, 2019 - S.W.3d - 2019 WL 2022364

County board of education brought action against cities for declaratory judgment and damages with respect to cities’ liquor-by-the-drink (LBD) tax proceeds, which board of education contended cities were required to share pro rata among all schools in county, rather than only among schools in cities’ separate municipal school systems.

The Chancery Court granted summary judgment to cities. Board of education appealed. Case was consolidated with similar ones for oral argument only. The Court of Appeals affirmed. Board of education appealed by permission.

The Supreme Court held that:

Local education provision of distribution statute for liquor-by-the-drink (LBD) tax, which required municipalities with their own school systems to expend and distribute half of their LBD tax proceeds “in the same manner as the county property tax for schools [was] expended and distributed,” did not require Commissioner of Tennessee Department of Revenue to remit LBD tax proceeds from cities with their own school systems directly to county trustee for pro rata distribution among county school system and other school systems in County, rather, provision directed cities to expend and distribute LBD tax proceeds in support of their own municipal school system in same way that county property tax for schools was expended and distributed in municipalities.

County that received liquor-by-the-drink (LBD) tax proceeds from private club LBD sales was required to expend and distribute half of its LBD tax proceeds “in the same manner as the county property tax for schools [was] expended and distributed” by the county, which was pro rata among all of the local school systems in the county, including cities located in the county which had their with their own separate school systems, although such cities were not required to do the same with their own LBD tax proceeds; disparity was understandable, and was within Legislature’s prerogative, because cities’ citizens were necessarily also county’s citizens, but county citizens who lived outside cities were not cities’ citizens.




TAX - TENNESSEE

Sullivan County v. City of Bristol

Supreme Court of Tennessee, at Knoxville - May 8, 2019 - S.W.3d - 2019 WL 2022367

County and county board of education brought separate actions against cities for declaratory judgment and damages with respect to cities’ liquor-by-the-drink (LBD) tax proceeds, which county and board of education contended cities were required to share pro rata among all schools in county, rather than only among schools in cities’ separate municipal school systems.

Actions were consolidated. The Chancery Court granted summary judgment to cities. County and board of education appealed. Case was consolidated with similar ones for oral argument only. The Court of Appeals affirmed. City and board of education appealed by permission.

The Supreme Court held that local education provision of tax distribution statute directed cities to expend and distribute LBD tax proceeds in support of their own municipal school systems.

Local education provision of distribution statute for liquor-by-the-drink (LBD) tax, which required municipalities with their own school systems to expend and distribute half of their LBD tax proceeds “in the same manner as the county property tax for schools [was] expended and distributed,” did not require cities with their own school systems to share half of their LBD tax proceeds with county and other school systems in county pro rata, rather, provision directed cities to expend and distribute LBD tax proceeds in support of their own municipal school system in same way that county property tax for schools was expended and distributed in municipalities.




BDA’s 1st Quarter Advocacy Priorities.

Read the Priorities.

Bond Dealers of America

May 20, 2019




FAF Issues 2018 Annual Report, “Standards That Work: Rising To Meet The Future”

Norwalk, CT—May 23, 2019 — The Financial Accounting Foundation (FAF) today posted its 2018 Annual Report to the FAF website. The report is available in print, PDF, and interactive digital versions.

The annual report theme is “Standards That Work: Rising to Meet the Future.” It provides a glimpse of how the Financial Accounting Standards Board (FASB) and the Governmental Accounting Standards Board (GASB) develop standards that work today and for the future—and how the FAF supports that process. For the FASB and the GASB, it includes robust research, implementation support, and an eye toward technical innovation. For the FAF, it includes appointing the right people to the Boards and implementing the right systems to support successful standard setting.

The 2018 Annual Report includes:

The interactive, mobile-friendly version of the annual report incorporates video and visuals to tell the story. It also includes complete lists of all FASB and GASB advisory group members, including the Emerging Issues Task Force and the Private Company Council.




SIFMA Statement on Infrastructure Financing.

Washington, D.C., May 22, 2019 – SIFMA today issued the following statement from President and CEO Kenneth E. Bentsen, Jr. on infrastructure financing:

“The challenges of our nation’s extraordinary infrastructure deficit are so complex that a single solution is not enough. Among other initiatives, SIFMA strongly believes restoring advance refunding is an essential component of funding infrastructure investment. By allowing state and local governments to reduce their debt service expenses and free up their borrowing capacity for new investments in infrastructure, this financial management tool offers a meaningful way to boost investment in and maintenance of critical public projects. The U.S. is continuing the troubling trend of underinvestment in this area and risks substantially adding to the financial burdens of state and local governments unless bi-partisan solutions are reached. We appreciate the commitment by the Administration and the Congress to infrastructure investment which will help spur job creation and economic growth.”

-30-

SIFMA is the leading trade association for broker-dealers, investment banks and asset managers operating in the U.S. and global capital markets. On behalf of our industry’s nearly 1 million employees, we advocate for legislation, regulation and business policy, affecting retail and institutional investors, equity and fixed income markets and related products and services. We serve as an industry coordinating body to promote fair and orderly markets, informed regulatory compliance, and efficient market operations and resiliency. We also provide a forum for industry policy and professional development. SIFMA, with offices in New York and Washington, D.C., is the U.S. regional member of the Global Financial Markets Association (GFMA). For more information, visit http://www.sifma.org.

DATE:
May 22, 2019

CONTACT:
Katrina Cavalli
212.313.1181
kcavalli@sifma.org






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