Tracked House Bills – February 2018

Chris Schmenk
Bricker & Eckler LLP

Federal Infrastructure Plan:

President Trump released his long-awaited infrastructure plan on February 12.  The proposal apparently would leverage $200 billion in federal dollars, matched by cuts elsewhere in the overall federal budget, to achieve $1.3 trillion in state, local, and private spending.  Reports indicate that the $200 billion would be broken down as follows:

• $100 billion for on a competitive grant program for state and local governments, favoring revenue-generating projects
• $50 billion for rural infrastructure
• $20 billion for “transformative” projects, defined as “ambitious, exploratory, and ground-breaking project ideas”
• $20 billion to expand low-cost federal loans aimed at waterways, railroads, and private activity bonds
• $10 billion to improve federally owned infrastructure

In addition, the plan would seek to speed up federal permitting processes.  More information is available at: https://www.whitehouse.gov/briefings-statements/building-stronger-america-president-donald-j-trumps-american-infrastructure-initiative/

State Legal and Legislative Activity:

On February 21, Franklin County Common Pleas Court Judge David Cain ruled that language in the state budget bill (HB 49 ) allowing for the centralized collection of municipal net profits taxes meets constitutional muster.  The ruling came in a lawsuit that included as plaintiffs more than 160 cities and villages across the state.  Plaintiffs had asked the court to issue an injunction to prevent the law from going into effect. However, Judge Cain rejected the arguments made by the municipalities that the language violates both home rule and the single subject rule of lawmaking.  “Everything comes down to whether the General Assembly has the power or it doesn’t,” he wrote in the nine-page decision. “In this case, the General Assembly has the power.”

Judge Cain found that the Ohio Constitution makes it clear that all taxes must be levied pursuant to the law. He went on to say that using common sense, the court could only find that the collections deal with the levying of taxes, and that the General Assembly has the authority to enact the collection provisions.

The judge also rejected the municipalities’ contention that the state must demonstrate they have abused their power of taxation to overcome a home rule challenge. In addressing the single-subject challenge, he wrote the contested provisions “have a logical and natural connection to the subject matter of HB49, i.e. appropriations.”

Tax Commissioner Joe Testa said that businesses that want to take advantage of the state’s new streamlined system for 2018 taxes have a deadline of March 1 to register through the Ohio Business Gateway.  The budget provision in question, which was adjusted during deliberations on the measure, allows businesses to opt-in to the centralized collection process through the Ohio Business Gateway. A 0.5% administrative fee will be charged to municipalities by the Department of Taxation.

Ohio Municipal League Executive Director Kent Scarrett said the ruling is likely to be appealed.

Bills Being Tracked: Changes from last month are noted below in bold

House Bills

HB 10 CROWDFUNDING  (Arndt, S.)  This bill was introduced in the House February 1 and would permit intrastate equity crowdfunding under certain circumstances.  The bill would provide an exemption from registration under the Ohio Securities Law for certain crowdfunding initiatives.  The bill passed in the House on June 21 and was referred in the Senate to the Transportation, Commerce & Workforce Committee.  The Committee held its fourth hearing on the bill February 7, 2018.

HB 53 UNION DUES/RIGHT TO WORK (Becker, J.) This bill was introduced in mid-February by Representative Pete Becker from Clermont County.  Co-sponsors include Representatives Hood, Brinkman, Dean, Thompson, Vitale, Goodman, Riedel, Roegner, Merrin, Antani, Zeltwanger and Keller.  It would remove any requirement under the Public Employees Collective Bargaining Law that public employees join or pay dues to any employee organization, prohibit public employers from requiring public employees to join or pay dues to any employee organization and prohibit an employee organization from being required to represent public employees who are not members of the employee organization.  The bill was referred Feb. 14 to the House Finance Committee.  No hearings have yet occurred.

HB 69 TIF DISTRICTS (Cupp, R.)    This bill, originally focused on Ohio’s TIF program was heavily loaded with amendments and signed into law by Governor Kasich on December 22, 2017.  It will be effective in 90 days.  Major amendments added to HB 69 included the following:

• Funding for counties and local transit authorities of up to $80 million to make up for some of the funding lost due to the elimination of the Medicaid managed care organization (MCO) sales tax. Funding of $50 million will be disbursed in FY18, and up to $30 million in FY19;
• A change that clarifies biennial budget language on local sales tax levies by allowing for increments of 0.1 mills as well as 0.25 mills;
• A provision adding townships to the list of approved entities (counties and municipalities) which can enter into enterprise zone agreements with retail enterprises if a waiver from the applicable local school board is obtained, and
• The removal of a requirement that local governments seeking additional property tax revenue certify a resolution pertaining to the levy to their County Auditor. Certification will only be needed to the County Board of Elections.

The core provisions of the new law modifying TIFs will require reimbursement of certain township fire and emergency medical service levy revenue forgone because of the creation of a municipal incentive district tax increment financing district.  The board of township trustees may, by resolution, waive the application of the reimbursement or negotiate with the municipal corporation that created the district for a lesser amount of payments in lieu of taxes.   The reimbursement requirement only applies if:

1. An incentive district TIF is being created;
2. The affected township provides fire and emergency medical services to the territory of the TIF;
3. The TIF is being created by a municipality by legislation adopted after the effective date of H.B. 69, and
4. The levy in question was approved by voters on or after January 1, 2006.

Under the bill, the board of township trustees may, by resolution, waive the reimbursement or negotiate with the municipality that created the district for a lesser amount of payments in lieu of taxes.

A “TIF” refers to Tax Increment Financing, a mechanism that exempts some portion of increases in property value from property taxation. Instead, property owners make service payments in place of taxation that are directed to pay public infrastructure costs.

Incentive district TIFs (the kind affected by this bill) are generally used for projects that involve single-family residential development, including condos.   Commercial TIFs, on the other hand, are usually formed as what is known as a Parcel TIF, in which the territory includes specified, defined parcels.   Most future commercial TIFs are therefore unlikely to be affected by HB 69.

HB 102  SCHOOL FUNDING  (Brenner, A.)  This bill, introduced March 1 and referred to the House Finance Committee, would replace locally levied school district property taxes with a statewide property tax and require recipients of certain tax exemptions to reimburse the state for such levy revenue lost due to those exemptions.  It would also increase the state sales and use tax rates and allocate additional revenue to state education purposes; to repeal school district income taxes; require the Treasurer of State to issue general obligation bonds to refund certain school district debt obligations; create a new system of funding schools where the state pays a specified amount per student that each student may use to attend the public or chartered nonpublic school of the student’s choice, without the requirement of a local contribution; eliminate the School Facilities Commission; eliminate the Educational Choice Scholarship Pilot Program, Pilot Project Scholarship Program, Autism Scholarship Program, and Jon Peterson Special Needs Scholarship Program; eliminate interdistrict open enrollment; require educational service centers to transport students on a countywide basis, and permit school districts to enter into a memoranda of understanding for one district to manage another.  It was referred to the House Finance Committee, and a June 20 hearing was continued.  A second hearing occurred December 12.

HB 114 RENEWABLE ENERGY (Blessing, L.)    This bill, introduced March 8, is very similar to last year’s HB 554 except it would: convert the renewable energy standards to goals indefinitely, rather than for a two year period; permit residential customers of a distribution utility or electric services company to opt out of any rider, charge or other recovery mechanism designed to recoup the cost of renewable energy; clarify that renewables are bypassable charges, rather than nonbypassable charges, and specify that the 12.5% renewable energy goal to be attained by 2027 will end at that time and not continue indefinitely. The bill passed in the House March 30 and moved to the Senate, where it was referred to the Energy and Natural Resources Committee.  After stalling last fall, activity resumed on the bill January 10 with a fourth hearing featuring both proponent and opponent testimony.

HB 122 ECONOMIC DEVELOPMENT (Hambley, S., Rogers, J.)  Introduced March 9, this bill would establish a Regional Economic Development Alliance Study Committee to study the benefits and challenges involved in creating regional economic development alliances. Senate Bill 97 is a companion to this bill and is the more likely bill to be approved by both chambers of the legislature.  The bill is relatively simple in that it creates a study committee to look at the pros and cons to establishing regional economic development alliances.  The committee is made up of 3 members of the House; 3 members of the Senate; the Governor, or his designee; 2 persons from academia engaged in a relevant field of study (appointed by the co-chairs of the committee); 2 economic development professionals (appointed by co-chairs of the committee); and the chair of the Regional Prosperity Initiative (or their designee) as a nonvoting member.  Specifically the committee is charged with studying enhancing collaboration for successful regional economic development; shared services; and also the mobilization of resources among alliance members. The committee is directed to consult with county commissioners, township trustees, city councils and mayors, members of statewide and regional organizations that represent political subdivision, and members of chambers of commerce.  The bill was reported out of House Committee May 10 and passed in the House September 13.  It was referred to the Senate Government Oversight & Reform Committee, where a second hearing occurred January 10.

HB 155 COMMERCIAL VEHICLE TRAINING (Sprague, R., Howse, S.)  This bill was introduced March 23 and would authorize a nonrefundable tax credit to be taken against either personal income tax or commercial activity tax liability for expenses incurred by an employer to train a commercial vehicle operator.  Under the proposed program, employers would submit to the Director of the Development Services Agency, by December 1, eligible training expenses expected to be incurred during the next calendar year. The ODSA Director would then certify up to $50,000 per employer of such expenses as being eligible for tax credits.  After incurring eligible training expenses, employers could then apply to ODSA for tax credits in amounts equal to one-half of the incurred eligible expenses.  On May 1, it was referred to the House Ways & Means Committee, where a hearing with sponsor’s testimony occurred May 16.

HB 166 WORKFORCE DEVELOPMENT  (Reineke, B., Cupp, R.)  This bill would revise the laws governing the state’s workforce development system, programs that may be offered by primary and secondary schools, certificates of qualification for employment, and the Opportunities for Ohioans with Disabilities Agency, and to designate the first week of May as In-Demand Jobs Week.  The next hearing, still to be scheduled, may be the 6th Hearing-All testimony- with a possible vote.

HB 173 TAX CREDITS (LaTourette, S., Patton, T.)  This bill was introduced April 5 and would provide that compensation paid to certain home-based employees may be counted for purposes of an employer qualifying for and complying with the terms of a Job Creation Tax Credit.   It was referred on May 1 to the House Ways & Means Committee, and a first hearing with Sponsor’s testimony occurred May 9.

HB 178 NUCLEAR ENERGY (Devitis, T.)  This is a companion bill to SB 128 (see explanation there) and was introduced April 10.  It was referred to the House Public Utilities Committee, where several hearings have occurred. Sponsors in both chambers are continuing conversations with interested parties in order to earn support for these bills.  Representative Robert Cupp recently assumed the role as Chair of the House Public Utilities Committee and confirmed that talks are still ongoing.  Additionally, House Speaker Rosenberg recently appointed members to an ad hoc House task force charged with studying this bill and other energy issues in the coming months (Speaker’s Task Force on Energy Policy).

HB 203 SUMMER JOBS (Barnes, J.) This bill was introduced May 9 and would require the Director of Development Services to establish a youth summer jobs pledging initiative to increase access to summer employment opportunities for high school and college youth.  It was referred to the Higher Education and Workforce Development Committee, where the second hearing with proponents’ testimony occurred September 20.

HB 281 BROADBAND EXPANSION (Carfagna, R.) This bill, introduced June 20, would establish the residential broadband expansion program within the Development Services Agency to award matching grants for last mile broadband expansion in municipal corporations and townships and to make an appropriation. It was referred to the House Finance Committee, which adopted a comprehensive substitute bill December 12 that would offer more ways to fund the projects and remove funding ratio requirements. It also would reduce the speed of internet that must be available for an area to be considered “underserved” from 25 MBbs upload speed to 10 MBbs. A fourth hearing occurred January 9 with five amendments accepted that would: clarify that satellite broadcasting and wireless internet service providers are included in the bill; ensure that areas receiving Connect America funds aren’t eligible for the program; enable providers to use letters of credit to demonstrate financial assurance; specify that broadband facilities must be operated for an unlimited period of time; and adjust language regarding the ability of a provider to provide broadband services as described in the proposal.  The Bill passed in the House January 31 and was assigned to the Senate Finance Committee.

HB 292 OHIO RESIDENCY (Scherer, G.) Introduced June 27, this bill would modify the test for determining an individual’s state of residence for income tax purposes.  The bill would add to the requirements to prove out-of-state residency by requiring a showing that the applicant did not: 1) claim a federal depreciation deduction (which is available only for property used in business or held for the production of income — e.g., as rental property) for an abode located outside the state, which the person was required to have for the entire taxable year under current law; 2) hold a valid Ohio driver’s license or identification card; 3) receive the benefit of an Ohio homestead exemption or 4. receive a tuition discount based on residency for attending an Ohio institution of higher education.  The bill passed in the House November 1 and the Senate Ways and Means Committee amended the bill at its fourth hearing February 21 with two changes that were accepted without objection. The first, which was described as “largely technical,” changes the filing deadline for the homestead exemption from September of the impacted tax year to December of the year before. The second was described as a “belt-and-suspenders” amendment to clarify that the aggregation of common law domicile criteria only applies to that section of state law.

HB 371  PROPERTY TAX (Merrin, D.) This bill, introduced October 4 would exempt from property taxation the increased value of land subdivided for residential development until construction commences or the land is sold.  The bill would benchmark an “ascribed taxable value” of the newly subdivided parcel, and any increase in taxable value would be exempt from taxation until either (1) Construction of a residential building on that property commences, or (2) Title to the property is transferred for consideration by a qualifying owner to another person.  The construction of streets, sidewalks, curbs, or driveways or the installation of water, sewer, or other utility lines on a subdivided parcel would not cause construction of a residential building to commence for purposes of the bill.  A sixth hearing in the Ways and Means Committee occurred January 9, with continuing opposition expressed by numerous local government representatives, and a seventh hearing occurred January 16.

HB 378 BROADBAND GRANTS (Smith, R., Cera, J.)  This bill, introduced October 10, would create the Ohio Broadband Development Grant Program to provide funds to extend broadband service to unserved areas of the state.  The program would be administered by the Ohio Development Services Agency.  The following entities could apply for a grant: (1) private businesses, (2) political subdivisions, (3) nonprofit entities organized to provide telecommunications services, and (4) co-ops organized to provide phone and Internet services.  Grant amounts cannot exceed the lesser of: (1) 50% of the total project cost, or (2) $5 million. Recipients could use funds to construct broadband infrastructure to serve unserved areas, including installing middle-mile or last-mile infrastructure, grant-project planning, obtaining construction permits, constructing facilities, purchasing equipment, and installing and testing the service.  The bill would appropriate $50 million per year for FYs 2018 and 2019 through the Third Frontier Research and Development Fund, to be used to award grants under the Program.  It would require $1 million of the appropriation in each fiscal year to be used to contract with one or more independent organizations that have experience working with Ohio broadband providers to collect and analyze state broadband data and do other activities regarding broadband service.  Four hearings have occurred in the House Finance Committee.

HB 381 ZERO EMISSIONS (DeVitis, A.).  This is a third bill to propose the creation of a zero-emission nuclear credit program to benefit Ohio’s nuclear plants and is very similar to HB 178.  However, one of the major differences is new language capping a residential customer’s monthly nonbypassable charge at $2.50 and capping a nonresidential customer’s monthly charge to be the lesser of $3,500 or 5% of the total bill. It also downsizes the lifespan of the ZEN program – terminating the credits after 12 years on Dec. 31, 2030, unless extended by the General Assembly. HB178 would terminate the program after 16 years.  Other changes include requiring the Public Utilities Commission to conduct an inquiry in 2029 to determine if continuing the program is in the public interest, and removing language from HB178 requiring a PUCO evaluation during years six and 11 of the program.  It has been referred to the House Public Utilities Committee, where a first hearing occurred December 12.

HB 469 TAX CREDIT (Schuring, K., Patton, T.) This bill, introduced January 17 and referred to the House Government Accountability & Oversight Committee would authorize a nonrefundable insurance company tax credit for contributions of capital to transformational mixed use development projects.  Sponsor Rep. Kirk Schuring (R-Canton) said during the bill’s first hearing February 20 that it would provide a tax credit to help downtowns with economic development.  The historic preservation tax credit has helped drive downtown redevelopment, and the proposal would build on that by offering a tax credit to insurance carriers who help contribute capital for mixed use developments, he said.  The sponsor said he was open to changes to the bill as necessary to ensure the credit drives development.  The projects must exceed $400 million in cost and must be at least 20 stories tall, Rep. Schuring said. The director of the Development Services Agency would have to certify that the plan would generate sufficient tax revenue. “The key is, it has to be transformational,” he said. “It has to be a mega-project.”

HB 500 TOWNSHIP LAWS (Carfagna, R.)  Introduced February 13, this bill would make changes to various township laws.  Of particular interest to economic development professionals is a proposed change to township laws regarding the formation of new community authorities (NCAs) to remove the requirement that NCA areas be at least 1000 acres in size.  HB 500 would also require 100% compensation for any post 2006 Township fire and EMS levy effective rates for any new Township incentive district TIFs (tax increment financing) enacted after the effective date of HB 500, but only if the Trustees choose to require that 100% compensation.

HB 512 EDUCATION DEPARTMENT  (Reineke, B.)  Introduced February 14, this bill would combine the functions of the Departments of Education and Higher Education and the Governor’s Office of Workforce Transformation to create the Ohio Department of Learning and Achievement.  The new agency would be headed by a director appointed by the governor and confirmed by the Senate.  The bill also includes language to limit the State Board of Education’s authority to making quasi-judicial decisions on licensure, disciplinary actions and school charters. Members would also still have the authority to hire a superintendent of public instruction to lead their work.  The bill was referred to the Government Accountability & Oversight Committee where a first hearing occurred February 20.

HB 519 TRANSPORTATION TECHNOLOGY  (West, T., Kick, D.)  This bill, introduced February 21 would create the Ohio Council on Transportation Technology to make recommendations regarding state policies related to autonomous technology.  The Council’s role would be to examine and evaluate methods and changes in state policy that will ensure that the state is the world leader in autonomous, driverless, and connected vehicle technology. They will also be charged with issuing a report with their recommendations no later than 1 year following the effective date of the bill.