Bill Text: AZ HB2396 | 2013 | Fifty-first Legislature 1st Regular | Chaptered
Bill Title: Attorney general; compromises; settlements; deposit
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2013-04-29 - Governor Signed [HB2396 Detail]
Download: Arizona-2013-HB2396-Chaptered.html
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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fifty-first Legislature First Regular Session 2013
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CHAPTER 143
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HOUSE BILL 2396 |
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AN ACT
amending sections 35-142, 37-109, 41-192, 44-1522, 44-1528 and 44-1531.01, Arizona Revised Statutes; amending title 44, chapter 10, article 7, Arizona Revised Statutes, by adding section 44-1531.02; relating to the attorney general.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 35-142, Arizona Revised Statutes, is amended to read:
35-142. Monies kept in funds separate from state general fund; receipt and withdrawal
A. All monies received for and belonging to the state shall be deposited in the state treasury and credited to the state general fund except the following, which shall be placed and retained in separate funds:
1. The unexpendable principal of monies received from federal land grants shall be placed in separate funds and the account of each such separate fund shall bear a title indicating the source and the institution or purpose to which such fund belongs.
2. The interest, rentals and other expendable money received as income from federal land grants shall be placed in separate accounts, each account bearing a title indicating the source and the institution or purpose to which the fund belongs. Such expendable monies shall be expended only as authorized, regulated and controlled by the general appropriation act or other act of the legislature.
3. All private or quasi‑private monies authorized by law to be paid to or held by the state treasurer shall be placed in separate accounts, each account bearing a title indicating the source and purpose of such fund.
4. All monies legally pledged to retirement of building indebtedness or bonds issued by those institutions authorized to incur such indebtedness or to issue such bonds shall be placed in separate accounts.
5. Monies of a multi‑county water conservation district authorized by law to be paid to or held by the state treasurer shall be placed in separate accounts, each account bearing a title indicating the source and purpose of such fund.
6. All monies collected by the Arizona game and fish department shall be deposited in a special fund known as the state game and fish protection fund for the use of the Arizona game and fish commission in carrying out the provisions of title 17.
7. All federal monies that are received by the department of economic security for family assistance benefits and medical eligibility as a result of efficiencies developed by the department of economic security and that would otherwise revert to the state general fund pursuant to section 35‑190 shall be retained for use by the department of economic security in accordance with the terms and conditions imposed by the federal funding source in an account or accounts established or authorized by the state treasurer.
8. Monies designated by law as special state funds shall not be considered a part of the general fund. Unless otherwise prescribed by law, the state treasurer shall be the custodian of all such funds.
9. All monies received and any accounts established and maintained by the director of the Arizona state retirement system or the administrator of the public safety personnel retirement system, the corrections officer retirement plan and the elected officials' retirement plan.
10. Monies received by a state agency or institution as a gift, devise or donation shall not be considered a part of the state general fund or transferred to the state general fund unless the gift, devise or donation specifically authorizes a general state use for the monies. A state agency or institution that receives a monetary gift, devise or donation shall account for those monies separately.
B. No money shall be received or held by the state treasurer except as authorized by law, and in every instance the treasurer shall issue a receipt for money received and shall record the transaction in the statewide accounting system. No money shall be withdrawn from the treasury except on the warrant or electronic funds transfer voucher of the department of administration.
C. Monies received for and belonging to the state and resulting from compromises or settlements by or against this state, excluding restitution and reimbursement to state agencies for costs or attorney fees, shall be credited to the state general fund unless specifically credited to another fund by law. A fund consisting of monies other than monies received for restitution, costs or attorney fees shall not be established on the basis of a court order without prior legislative authorization. For the purposes of this subsection, "restitution" means monies intended to compensate a specific, identifiable person, including this state, for economic loss.
C. D. All federal monies granted and paid to the state by the federal government shall be accounted for in the accounts or funds of the state in the necessary detail to meet federal and state accounting, budgetary and auditing requirements, and all appropriations for matching such federal monies shall be transferred from the general fund to such separate funds as needed, except as otherwise required by the federal government.
D. E. Nothing in this section requires the establishment of separate accounts or funds for such federal monies unless otherwise required by federal or state law. The department of administration has the authority to use the most efficient system of accounts and records, consistent with legal requirements and standard and necessary fiscal safeguards.
E. F. Nothing in this section precludes the creation by the department of administration of a clearing account or other acceptable accounting method to effect prompt payment of claims from an approved budget or appropriation. The department of administration shall report each account or fund established or cancelled to the directors of the joint legislative budget committee and the governor's office of strategic planning and budgeting.
F. G. Nothing in this section or any other section precludes the use of monies kept in funds separate from the general fund, the interest from which accrues to the general fund, for payment of claims against the general fund, provided sufficient monies remain available for payment of claims against such funds.
G. H. The department of administration may issue warrants for qualified expenditures of federal program monies before they are deposited in the state treasury. The receipt of federal monies shall be timed to coincide, as closely as administratively feasible, with the redemption of warrants by the state treasurer. The department of administration shall limit expenditures to the amount that has been made available for the use under the grant award by the federal government. The state agency initiating the expenditures is responsible for ensuring that expenditures qualify for coverage under the guidelines of the federal grant award.
H. I. The department of administration shall establish the policies and procedures for all state agencies for drawing federal monies. When the established method results in federal monies being held by this state, the department of administration may use the interest earned on the monies to pay the federal government for any related interest liability. If an interest liability is incurred due to a state agency varying from the established policies and procedures, the department of administration shall charge the appropriate agency account or fund. Any federal interest liability owed to this state as a result of the delayed federal disbursements shall be used to offset this state's interest liability to the federal government. Any remaining interest earnings shall be deposited in the state general fund.
I. J. Any state agency or authorized agent of a state agency may accept credit cards pursuant to an agreement entered into by the state treasurer pursuant to section 35‑315 for the payment of any amount due to that agency or agent or this state.
J. K. Except for the department of revenue for tax payments, agencies or authorized agents on behalf of state agencies that accept credit cards shall deduct any applicable discount fee and processing fee associated with the transaction amount before depositing the net amount in the appropriate state fund. No other reduction is permitted against the transaction amount. The net amount deposited in the appropriate state fund shall be considered as the full deposit required by law of monies received by the agency or the authorized agent. Payment of any applicable discount fee and processing fee shall be accounted for in the annual report submitted to the governor's office of strategic planning and budgeting in accordance with section 41‑1273. The transaction amount of any credit card transaction shall not be reduced by any discount fee or processing fee in an amount in excess of the merchant card settlement fees reflected in the state banking contract with the state treasurer's office.
K. L. Any state agency that contracts with an authorized agent for the electronic processing of transactions pursuant to title 41, chapter 23 may include a provision in the contract to allow the authorized agent to impose a convenience fee. If allowed, the convenience fee shall be charged to the cardholder in addition to the transaction amount, except for the following:
1. Except as provided in subsection R S of this section, any permits, licenses or other authorizations needed to pursue a trade or occupation in this state.
2. Except as provided in subsection R S of this section, any permits, licenses or other authorizations needed to establish, expand or operate a business in this state.
3. Except as provided in subsection R S of this section, any permits, licenses or other authorizations needed to register a vehicle or license a driver in this state.
L. M. Each state agency or its authorized agent shall:
1. Deduct the amount of the convenience fee before depositing the transaction amount or the transaction amount reduced by the discount fee or the processing fee, or both, into the appropriate state fund.
2. Not deduct any part of the convenience fee from the transaction amount before depositing the net amount into the appropriate state fund.
3. Deduct the amount of the discount fee or the processing fee, or both, from the transaction amount before depositing the net amount into the appropriate state fund.
M. N. The net amount deposited in the appropriate state fund pursuant to subsection K or L or M of this section shall be considered as the full deposit of monies that is required by law and that is received by the agency.
N. O. Notwithstanding section 35‑142.01, convenience fees received by a state agency or its authorized agent are limited to, and may be used to offset, the costs imposed by the authorized agent in processing the transactions.
O. P. When the percentage of electronic transactions first exceeds at least thirty per cent of a state agency's total transactions, the state agency shall perform a cost benefit report, including costs of convenience fees, the amount of revenue generated and any realized cost savings.
P. Q. State agencies shall report the number of transactions, the number of electronic transactions, the total dollar amount of transactions processed, the total dollar amount of any discount fee, the total dollar amount of any processing fee and the total dollar amount of any convenience fee charged, deducted or paid pursuant to subsections J and K and L of this section annually by October 1 to the governor, the department of administration and the joint legislative budget committee.
Q. R. Nothing in this section or any other provision of law authorizes any state agency, authorized agent of any state agency or budget unit to establish a bank account for any government monies. All monies received by or on behalf of this state shall be deposited with and in the custody of the state treasurer or in an account that is authorized by the state treasurer pursuant to this section. This subsection does not apply to monies received and any accounts established and maintained by the director of the Arizona state retirement system or the administrator of the public safety personnel retirement system, the corrections officer retirement plan and the elected officials' retirement plan.
R. S. If a state agency provides an alternative method of payment, the convenience fee may be charged to the cardholder in addition to the transaction amount.
Sec. 2. Section 37-109, Arizona Revised Statutes, is amended to read:
37-109. Alternative payment methods
At the commissioner's sole discretion, the commissioner may accept fees imposed pursuant to section 37‑107 by alternative payment methods, including credit and charge cards, pursuant to section 35‑142, subsection I J, debit cards and electronic funds transfers or other alternative payment methods, pursuant to section 35‑315, but the department is not obligated to accept any payment using an alternative payment method.
Sec. 3. Section 41-192, Arizona Revised Statutes, is amended to read:
41-192. Powers and duties of attorney general; restrictions on state agencies as to legal counsel; exceptions; compromise and settlement monies
A. The attorney general shall have charge of and direct the department of law and shall serve as chief legal officer of the state. The attorney general shall:
1. Be the legal advisor of the departments of this state and render such legal services as the departments require.
2. Establish administrative and operational policies and procedures within his department.
3. Approve long‑range plans for developing departmental programs therein, and coordinate the legal services required by other departments of this state or other state agencies.
4. Represent school districts and governing boards of school districts in any lawsuit involving a conflict of interest with other county offices.
5. Represent political subdivisions, school districts and municipalities in suits to enforce state or federal statutes pertaining to antitrust, restraint of trade or price‑fixing activities or conspiracies, if the attorney general notifies in writing the political subdivisions, school districts and municipalities of the attorney general's intention to bring any such action on its behalf. At any time within thirty days after the notification, the political subdivisions, school districts and municipalities, by formal resolution of its governing body, may withdraw the authority of the attorney general to bring the intended action on its behalf.
6. In any action brought by the attorney general pursuant to state or federal statutes pertaining to antitrust, restraint of trade, or price‑fixing activities or conspiracies for the recovery of damages by this state or any of its political subdivisions, school districts or municipalities, in addition to the attorney general's other powers and authority, the attorney general on behalf of this state may enter into contracts relating to the investigation and prosecution of such action with any other party plaintiff who has brought a similar action for the recovery of damages and with whom the attorney general finds it advantageous to act jointly or to share common expenses or to cooperate in any manner relative to such action. In any such action, notwithstanding any other laws to the contrary, the attorney general may undertake, among other things, to render legal services as special counsel or to obtain the legal services of special counsel from any department or agency of the United States, of this state or any other state or any department or agency thereof or any county, city, public corporation or public district in this state or in any other state that has brought or intends to bring a similar action for the recovery of damages or their duly authorized legal representatives in such action.
7. Organize the civil rights division within the department of law and administer such division pursuant to the powers and duties provided in chapter 9 of this title.
8. Compile, publish and distribute to all state agencies, departments, boards, commissions and councils, and to other persons and government entities on request, at least every ten years, the Arizona agency handbook that sets forth and explains the major state laws that govern state agencies, including information on the laws relating to bribery, conflicts of interest, contracting with the government, disclosure of public information, discrimination, nepotism, financial disclosure, gifts and extra compensation, incompatible employment, political activity by employees, public access and misuse of public resources for personal gain. A supplement to the handbook reflecting revisions to the information contained in the handbook shall be compiled and distributed by the attorney general as deemed necessary.
B. Except as otherwise provided by law, the attorney general may:
1. Organize the department into such bureaus, subdivisions or units as he deems most efficient and economical, and consolidate or abolish them.
2. Adopt rules for the orderly conduct of the business of the department.
3. Subject to chapter 4, article 4 of this title, employ and assign assistant attorneys general and other employees necessary to perform the functions of the department.
4. Compromise or settle any action or claim by or against this state or any department, board or agency of this state. If the compromise or settlement involves a particular department, board or agency of this state, the compromise or settlement shall be first approved by the department, board or agency. If no department or agency is named or otherwise materially involved, the approval of the governor shall be first obtained.
5. Charge reasonable fees for distributing official publications, including attorney general legal opinions and the Arizona agency handbook. The fees received shall be transmitted to the state treasurer for deposit in the state general fund.
C. The powers and duties of a bureau, subdivision or unit shall be limited to those assigned by law to the department.
D. Notwithstanding any law to the contrary, except as provided in subsections E and F of this section, no state agency other than the attorney general shall employ legal counsel or make an expenditure or incur an indebtedness for legal services, but the following are exempt from this section:
1. The director of water resources.
2. The residential utility consumer office.
3. The industrial commission.
4. The Arizona board of regents.
5. The auditor general.
6. The corporation commissioners and the corporation commission other than the securities division.
7. The office of the governor.
8. The constitutional defense council.
9. The office of the state treasurer.
10. The Arizona commerce authority.
E. If the attorney general determines that he is disqualified from providing judicial or quasi‑judicial legal representation or legal services on behalf of any state agency in relation to any matter, the attorney general shall give written notification to the state agency affected. If the agency has received written notification from the attorney general that the attorney general is disqualified from providing judicial or quasi‑judicial legal representation or legal services in relation to any particular matter, the state agency is authorized to make expenditures and incur indebtedness to employ attorneys to provide the representation or services.
F. If the attorney general and the director of the department of agriculture cannot agree on the final disposition of a pesticide complaint under section 3‑368, if the attorney general and the director determine that a conflict of interest exists as to any matter or if the attorney general and the director determine that the attorney general does not have the expertise or attorneys available to handle a matter, the director is authorized to make expenditures and incur indebtedness to employ attorneys to provide representation or services to the department with regard to that matter.
G. Any department or agency of this state authorized by law to maintain a legal division or incur expenses for legal services from funds derived from sources other than the general revenue of the state, or from any special or trust fund, shall pay from such source of revenue or special or trust fund into the general fund of the state, to the extent such funds are available and upon a reimbursable basis for warrants drawn, the amount actually expended by the department of law within legislative appropriations for such legal division or legal services.
H. Appropriations made pursuant to subsection G of this section shall not be subject to lapsing provisions otherwise provided by law. Services for departments or agencies to which this subsection and subsection F of this section are applicable shall be performed by special or regular assistants to the attorney general.
I. Notwithstanding section 35‑148, monies received by the attorney general from charges to state agencies and political subdivisions for legal services relating to interagency service agreements shall be deposited, pursuant to sections 35‑146 and 35‑147, in an attorney general agency services fund. Monies in the fund are subject to legislative appropriation and are exempt from the provisions of section 35‑190 relating to lapsing of appropriations.
J. Unless otherwise provided by law, monies received for and belonging to the state and resulting from compromises and settlements entered into pursuant to subsection B of this section, excluding restitution and reimbursement to state agencies for costs or attorney fees, shall be deposited into the state treasury and credited to the state general fund pursuant to section 35-142. Monies received for and belonging to the state and resulting from a compromise or settlement are not considered custodial, private or quasi-private monies unless specifically provided by law. On or before January 15, April 15, July 15 and October 15, the attorney general shall file with the governor, with copies to the director of the department of administration, the president of the senate, the speaker of the house of representatives, the secretary of state and the staff director of the joint legislative budget committee, a full and complete account of the deposits into the state treasury made pursuant to this subsection in the previous calendar quarter. For the purposes of this subsection, "restitution" means monies intended to compensate a specific, identifiable person, including this state, for economic loss.
Sec. 4. Section 44-1522, Arizona Revised Statutes, is amended to read:
44-1522. Unlawful practices; intended interpretation of provisions
A. The act, use or employment by any person of any deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon on such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
B. The violation of chapter 9, article 16 or chapter 19, article 1 of this title is declared to be an unlawful practice and subject to enforcement under this article.
C. It is the intent of the legislature, in construing subsection A, that the courts may use as a guide interpretations given by the federal trade commission and the federal courts to 15 United States Code sections 45, 52 and 55(a)(1).
Sec. 5. Section 44-1528, Arizona Revised Statutes, is amended to read:
44-1528. Remedies; injunction; other reliefs; receiver
A. Following an investigation made pursuant to section 44-1524 and when it appears to the attorney general that a person has engaged in or is engaging in any practice declared to be unlawful by this article, he the attorney general may seek and obtain in an action in the superior court a court of competent jurisdiction an injunction prohibiting such the person from continuing such the practices or engaging in the practice or doing any acts in furtherance of the practice after notice as is required by the rules of civil procedure. The court may make such orders or judgments as may be necessary to:
1. Prevent the use or employment by a person of any unlawful practices.
2. Restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice in this article declared to be unlawful, including the appointment of a receiver.
3. Require that any profits, gain, gross receipts or other benefit obtained by means of any practice in this article declared to be unlawful be disgorged and paid to the state for deposit in the consumer remediation subaccount of the consumer restitution and remediation revolving fund established by section 44-1531.02.
3. 4. Prohibit a person found to have violated this article from engaging in a specified trade or occupation.
B. Following an investigation made pursuant to section 44‑1524 and when it appears to the attorney general that a person has engaged in or is engaging in a practice declared to be unlawful by this article and that such the person is about to conceal his the person's assets or his person the person's identity or whereabouts or leave the state, the attorney general may apply to the superior court a court of competent jurisdiction, ex parte, for an order appointing a receiver of the assets of such the person. Upon On a showing made by affidavit or other evidence that such the person has engaged in or is engaging in a practice declared to be unlawful by this article and that such the person is about to conceal his the person's assets or his person the person's identity or whereabouts or leave the state, the court may order the appointment of a receiver to receive the assets of such the person.
Sec. 6. Section 44-1531.01, Arizona Revised Statutes, is amended to read:
44-1531.01. Consumer protection-consumer fraud revolving fund; use of fund
A. The consumer protection-consumer fraud revolving fund is established to be administered by the attorney general under the conditions and for the purposes provided by this section. Monies in the fund are subject to legislative appropriation. Monies in the fund are exempt from the lapsing provisions of section 35‑190, relating to lapsing of appropriations.
B. Any investigative or court costs, attorney fees or civil penalties recovered for the state by the attorney general as a result of enforcement of either state or federal statutes pertaining to consumer protection or consumer fraud, whether by final judgment, settlement or otherwise, shall be deposited in the fund established by this section, except that such the costs, penalties or fees recovered by a county attorney shall be retained in such the county and utilized for investigative operations for consumer protection in such the county.
C. The monies in the fund shall be used by the attorney general for operating expenses, including any cost or expense associated with the tobacco master settlement agreement arbitration, consumer fraud education and investigative and enforcement operations of the consumer protection division.
D. On or before January 15, April 15, July 15 and October 15, the attorney general shall cause to be filed file with the governor, with copies to the director of the department of administration, the president of the senate and, the speaker of the house of representatives, the secretary of state and the staff director of the joint legislative budget committee, a full and complete account of the receipts and disbursements from the fund in the previous calendar quarter.
E. On or before January 15, April 15, July 15 and October 15, each county attorney who retains monies pursuant to subsection B of this section shall provide the county board of supervisors with a full and complete account of the receipts and disbursements of such the monies in the previous calendar quarter. END_STATUTE
Sec. 7. Title 44, chapter 10, article 7, Arizona Revised Statutes, is amended by adding section 44-1531.02, to read:
44-1531.02. Consumer restitution and remediation revolving fund; subaccounts
A. The consumer restitution and remediation revolving fund is established to be administered by the attorney general under the conditions and for the purposes provided by this section. On notice from the attorney general, the state treasurer shall invest and divest monies in the fund as provided by section 35-313, and monies earned from investment shall be credited to the appropriate subaccount of the fund.
B. The consumer restitution subaccount of the consumer restitution and remediation revolving fund is established consisting of monies collected or received by the attorney general as the result of an order of a court of competent jurisdiction, or as the result of a settlement or compromise, for the purpose of compensating specific, identifiable persons, including this state, for economic loss resulting from violations or alleged violations of consumer protection laws. The attorney general shall administer the subaccount. Monies in the subaccount are continuously appropriated. Monies in the subaccount are exempt from the provisions of section 35‑190, relating to lapsing of appropriations. The attorney general shall distribute monies in the subaccount to specific, identifiable persons as directed by a court order. The attorney general may distribute any unexpended funds in the consumer restitution subaccount to the consumer protection–consumer fraud revolving fund established by section 44‑1531.01.
C. The consumer remediation subaccount of the consumer restitution and remediation revolving fund is established consisting of monies collected or received by the attorney general from a party as the result of an order of a court of competent jurisdiction, or as the result of a settlement or compromise, to rectify violations or alleged violations of consumer protection laws, other than monies collected for the benefit of specific, identifiable persons and monies for investigative or court costs, attorney fees, civil penalties or other monies recovered as a result of the enforcement of consumer protection laws deposited in the consumer protection‑consumer fraud revolving fund pursuant to section 44-1531.01. The attorney general shall administer the subaccount. Monies in the subaccount up to the amount of three million five hundred thousand dollars annually are continuously appropriated. Any amounts in excess of three million five hundred thousand dollars are subject to legislative appropriation. Monies in the subaccount are exempt from the provisions of section 35‑190, relating to lapsing of appropriations. The attorney general may expend monies in the subaccount for programs, including consumer fraud education programs, that are intended to rectify violations or alleged violations of consumer protection laws. The attorney general may expend monies in the consumer remediation subaccount for operating expenses incurred by the department of law in administering or implementing programs intended to rectify violations or alleged violations of consumer protection laws. The attorney general shall submit an expenditure plan to the joint legislative budget committee for review before expending any monies in the subaccount.
D. On or before January 15, April 15, July 15 and October 15, the attorney general shall file with the governor, with copies to the director of the department of administration, the president of the senate, the speaker of the house of representatives, the secretary of state and the staff director of the joint legislative budget committee, a full and complete account of the receipts and disbursements from the fund by subaccount in the previous calendar quarter.
APPROVED BY THE GOVERNOR APRIL 29, 2013.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 30, 2013.
