Public-Private Education Facilities and Infrastructure Act of 2002 - Overview of Recent Changes

1. www.vita.virginia.gov Public-Private Education Facilities and Infrastructure Act of 2002 - Overview of Recent Changes Tom Falat VITA Legal and Legislative Services Commonwealth IT Solutions Committee July 18, 2007

2. www.vita.virginia.gov Presentation Outline PPEA Recent Changes Public-Private Partnership Advisory Commission Freedom of Information Act (FOIA) Model Procedures Changes

3. www.vita.virginia.gov PPEA Recent Changes Creation of the Public–Private Partnership Advisory Commission (SB756, Stosch 2007) 11-member advisory commission, established in the Legislative Branch Chair of House Appropriations 4 Delegates appointed by the Speaker Chair of Senate Finance 2 Senators appointed by Senate Rules Secretaries of Administration, Finance and Technology (or their designees)

4. www.vita.virginia.gov PPEA Recent Changes Any state agency or institution shall submit copies of Detailed Proposals to the Commission prior to entering into negotiations for an interim or comprehensive agreement. Exceptions: Projects less than $3 million Projects between $3 million and $50 million for which funds already have been specifically appropriated as a public-private partnership in the appropriations act

5. www.vita.virginia.gov PPEA Recent Changes Commission Will decide within 10 days whether to accept or decline for review. If Commission accepts, it shall provide its findings and recommendations to the public entity within 45 days. Matters the Commission are to consider include: Whether the project creates tax-supported debt Financial impact Policy aspects General business terms and conditions

6. www.vita.virginia.gov PPEA Recent Changes Public entity cannot enter into negotiations until it receives the Commission’s recommendations and report. Public entity also must submit a copy of the proposed interim or comprehensive agreement (fully negotiated) 30 days prior to its execution with a report as to how the Commission’s recommendations were addressed.

7. www.vita.virginia.gov PPEA Recent Changes FOIA application to the PPEA (SB1002, Houck 2007) As a result of the ongoing concerns from the press and open access advocates, the FOIA Advisory Council recommended, and the GA approved, a number of changes to the PPEA. Clarifies, and tightens, FOIA exemption allowing public entities to withhold internal memoranda and analysis that, if made public, would adversely affect the financial or bargaining position of the public entity. Allows the public entity to provide exemptions to properly designated trade secrets and financial information of a private entity. Sets the steps required for a private entity to ask for and negotiate the protections, and steps the public entity must take to declare those portions of the records exempt.

8. www.vita.virginia.gov PPEA Recent Changes FOIA also now provides an exemption to the Public-Private Partnership Advisory Commission, both the records submitted to it, as well as its findings and recommendations. Except for properly identified trade secrets and financial statements of private entities, ALL exemptions (for the Commission as well) expire after negotiations are completed.

9. www.vita.virginia.gov Recent Changes – Model Procedures The PPEA requires all public entities, state and local, to post and use “procedures” once it decides to pursue a PPEA. Model Guidelines were drafted in 2002 by the Division of Legislative Services. The Secretary of Administration drafted Commonwealth Procedures later in 2002 that were required to be used by all Executive Branch agencies (with the exception of VDOT, which drafted its own tailored to the PPTA). The Commonwealth of Virginia Procedures were revised and updated on October 1, 2006.

10. www.vita.virginia.gov Recent Changes – Model Procedures SB756 (Stosch, 2007) calls for Senate General Laws and Technology and House General Laws Committees to convene a workgroup to revise the current (legislative) Model Guidelines in accordance with the changes to the Act. The workgroup is to complete its work by September 30, 2007. Both DGS and VITA are participating in that effort.

11. www.vita.virginia.gov Recent Changes – Model Procedures The October 1, 2006, version of the Commonwealth of Virginia Procedures will need to be updated. In the interim, any PPEA that is accepted by an Executive Branch agency would follow the October 1, 2006, Procedures, subject to the 2007 changes to the PPEA, including the involvement of the Advisory Commission.