Bill Text: NY A09968 | 2017-2018 | General Assembly | Introduced


Bill Title: Requires the reporting of contributions by business entities and individuals; defines terms; provides that no business entity or individual who contracts with the state for a contract of more than fifteen thousand dollars shall make monetary or in-kind contributions or a pledge of contribution in excess of one thousand dollars to an individual who holds the position of an elected state public office, a candidate for such position, including the candidate's election fund, if such contract must be voted on or approved by such individual; or a state, county or municipal political party, in the preceding twelve month period to the contract being awarded; or to any person for any political purpose or use; or to knowingly solicit any such contribution from any such person for any such purpose during any such period; provides exemptions; makes related provisions.

Spectrum: Moderate Partisan Bill (Democrat 22-6)

Status: (Introduced - Dead) 2018-03-02 - referred to election law [A09968 Detail]

Download: New_York-2017-A09968-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          9968
                   IN ASSEMBLY
                                      March 2, 2018
                                       ___________
        Introduced  by  M. of A. GALEF, WOERNER, MOSLEY, BLAKE, SEPULVEDA, JOHNS
          -- Multi-Sponsored by --  M.  of  A.  BUCHWALD,  CROUCH,  ENGLEBRIGHT,
          MAGEE, SKARTADOS, THIELE -- read once and referred to the Committee on
          Election Law
        AN  ACT  to amend the state finance law, in relation to the reporting of
          contributions by business entities and individuals
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  The  state finance law is amended by adding a new section
     2  139-l to read as follows:
     3    § 139-l. Reporting of contributions by business entities and  individ-
     4  uals.  1.  For  the  purposes of this section, the following terms shall
     5  have the following meanings:
     6    a. "Business entity" means:
     7    i. a for-profit entity as follows:
     8    A. in the case of a corporation: the corporation, any officer  of  the
     9  corporation, and any person or business entity that owns or controls ten
    10  percent or more of the stock of the corporation;
    11    B. in the case of a general partnership: the partnership and any part-
    12  ner;
    13    C.  in  the case of a limited partnership: the limited partnership and
    14  any partner;
    15    D. in the case of a professional corporation: the professional  corpo-
    16  ration and any shareholder or officer;
    17    E.  in  the case of a limited liability company: the limited liability
    18  company and any member;
    19    F. in the case of a limited liability partnership: the limited liabil-
    20  ity partnership and any partner;
    21    G. in the case of a sole proprietorship: the proprietor; and
    22    H. in the case of any other form of entity organized under the laws of
    23  this state or any other state or foreign jurisdiction:  the  entity  and
    24  any principal, officer, or partner thereof;
    25    ii.  any  subsidiary directly or indirectly controlled by the business
    26  entity;
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07704-01-7

        A. 9968                             2
     1    iii. any political organization organized under  section  527  of  the
     2  Internal  Revenue  Code that is directly or indirectly controlled by the
     3  business entity, other than a candidate  committee,  election  fund,  or
     4  political  party  committee;  and  with  respect to an individual who is
     5  included  within  the  definition  of business entity, such individual's
     6  spouse or domestic partner, and any child residing with the  individual,
     7  provided,  however, that, this section shall not apply to a contribution
     8  made by such spouse, domestic partner, or child to a candidate for  whom
     9  the  contributor  is  entitled to vote or to a political party committee
    10  within whose jurisdiction the contributor resides unless  such  contrib-
    11  ution is in violation of this section; or
    12    iv.  any  not-for-profit  organization pursuant to section one hundred
    13  seventy-nine-q of this chapter, or organized under the laws of the state
    14  or any other state or foreign jurisdiction.
    15    b. "Contribution" means any monetary  contribution,  in-kind  contrib-
    16  ution or gift.
    17    c. "In-kind contributions" shall include but not be limited to:
    18    i. goods or services offered free of charge;
    19    ii.  goods  and  services  offered  at  less than the usual and normal
    20  charge; and
    21    iii. payments by a third party for goods and services  rendered  to  a
    22  candidate or political committee.
    23    d. "Governmental entity" shall mean:
    24    i.  any department, board, bureau, commission, division, office, coun-
    25  cil, committee or officer of the state, whether permanent or temporary;
    26    ii. each house of the state legislature;
    27    iii. the unified court system;
    28    iv. any public authority, public  benefit  corporation  or  commission
    29  created by or existing pursuant to the public authorities law;
    30    v.  a  public authority or public benefit corporation, at least one of
    31  whose members is appointed by the governor or who serves as a member  by
    32  virtue of holding a civil office of the state;
    33    vi.  municipal  agency,  as  that term is defined in paragraph (ii) of
    34  subdivision (s) of section one-c of the legislative law; or
    35    vii. a subsidiary or affiliate of such a public authority.
    36    e. "Article of procurement" shall mean a commodity, service, technolo-
    37  gy, public work, construction, revenue contract, the purchase,  sale  or
    38  lease  of  real property or an acquisition or granting of other interest
    39  in real property, that is the subject of a governmental procurement.
    40    f. "Governmental procurement" shall mean:
    41    i. the public announcement, public notice, or public communication  to
    42  any  potential  vendor  of  a determination of a need for a procurement,
    43  which shall include, but not be limited to, the public  notification  of
    44  the  specifications, bid documents, request for proposals, or evaluation
    45  criteria for a procurement contract;
    46    ii. solicitation for a procurement contract;
    47    iii. evaluation of a procurement contract;
    48    iv. award, approval, denial or disapproval of a procurement  contract;
    49  or
    50    v.  approval  or denial of an assignment, amendment (other than amend-
    51  ments that are authorized and payable under the terms of the procurement
    52  contract as it was finally awarded or approved by  the  comptroller,  as
    53  applicable),  renewal  or  extension  of  a procurement contract, or any
    54  other material change in the procurement contract resulting in a  finan-
    55  cial benefit to the offerer.

        A. 9968                             3
     1    g.  "Procurement contract" shall mean any contract or other agreement,
     2  including an amendment, extension, renewal or change order to an  exist-
     3  ing  contract  (other  than  amendments, extensions, renewals, or change
     4  orders that are authorized and payable under the terms of  the  contract
     5  as  it  was  finally awarded or approved by the comptroller, as applica-
     6  ble), for an article of procurement involving  an  estimated  annualized
     7  expenditure  in  excess  of  fifteen  thousand  dollars. Grants, article
     8  eleven-B state finance law contracts, program contracts between not-for-
     9  profit organizations, as defined in article eleven-B  of  this  chapter,
    10  and the unified court system, intergovernmental agreements, railroad and
    11  utility force accounts, utility relocation project agreements or orders,
    12  contracts  governing  organ  transplants,  contracts  allowing for state
    13  participation in trade shows, and eminent domain transactions shall  not
    14  be deemed procurement contracts.
    15    h. "Business dealings with the state" shall mean:
    16    i.  Any  procurement  contract  for  articles  of  procurement that is
    17  entered into or in effect with the state, other than a contract procured
    18  through competitive sealed bidding, or sole and  single  source,  or  an
    19  emergency  contract  awarded  for  services  and commodities pursuant to
    20  section one hundred sixty-three of this chapter;
    21    ii. Any acquisition or disposition of real property with the state  or
    22  governmental entity;
    23    iii. One or more concessions (other than concessions awarded through a
    24  competitive  sealed  bid)  or  franchises from the state or governmental
    25  entity;
    26    iv. Any contract for the investment of state pension funds,  including
    27  investments  in  a  private  equity  firm  and contracts with investment
    28  related consultants.
    29    i. The term "statewide elected  official"  shall  mean  the  governor,
    30  lieutenant governor, comptroller or attorney general.
    31    2.  No business entity or individual who engages in any business deal-
    32  ings with the state  or  any  governmental  entity  or  its  independent
    33  authorities  if  the  value  of the transaction exceeds fifteen thousand
    34  dollars, shall make or have made monetary or in-kind contributions or  a
    35  pledge  of contribution in excess of one thousand dollars to an individ-
    36  ual who holds the position of a statewide elected official, a member  of
    37  the  legislature  or a candidate for such position, including the candi-
    38  date's committee or election fund, if such contract must  be  voted  on,
    39  endorsed,  promoted,  or  approved  by such individual or office related
    40  thereto; or a state, county or municipal political party  committee  for
    41  any political purpose or use:
    42    a.  within twelve months immediately preceding the commencement of the
    43  bidding and negotiations to engage in business dealings with  the  state
    44  or the commencement of the governmental procurement process;
    45    b. during the length of the term of the contract or agreement in busi-
    46  ness dealings with the state; or
    47    c.  within the twelve months immediately following the last day of the
    48  term of the contract or agreement.
    49    3. a. The state shall require a business entity or individual,  during
    50  the  governmental  procurement  process and prior to the awarding of any
    51  contract or agreement in business dealings with  the  state,  to  report
    52  through a disclosure statement listing all contributions made during the
    53  preceding twelve months to any statewide elected official, any member of
    54  the  legislature  or a candidate for such position, including the candi-
    55  date's committee or election fund or a state, county or municipal  poli-
    56  tical  party  committee  for any political purpose or use.  The business

        A. 9968                             4
     1  entity or individual shall also provide a written affidavit that it  has
     2  not  made a contribution that would bar the award of a contract pursuant
     3  to this section.
     4    b.  The  governmental  entity  conducting the governmental procurement
     5  shall review such reports prior to  the  awarding  of  any  contract  or
     6  agreement  to  engage  in  business dealings with the state to determine
     7  whether such business entity or individual has  made  any  contributions
     8  exceeding  the  limits set forth in subdivision two of this section. If,
     9  through such a review, it is determined that any such  contribution,  or
    10  any  other  act  that  would constitute a breach of contract pursuant to
    11  subdivision four of this section, or poses a conflict of interest in the
    12  awarding of any contract or agreement, the business entity or individual
    13  shall be disqualified from bidding on or being awarded such contract  or
    14  agreement  to  engage  in business dealings with the state. The business
    15  entity or individual shall have a  continuing  duty  to  report  to  the
    16  governmental  entity  that  oversees  the  governmental  procurement any
    17  contributions that constitute a violation of this section that are  made
    18  during the duration of the term of business dealings with the state.
    19    4. a. A breach of contract includes:
    20    i. making or soliciting a contribution in violation of this section;
    21    ii.  knowingly  concealing  or misrepresenting a contribution given or
    22  received;
    23    iii. making or soliciting contributions through intermediaries for the
    24  purpose of concealing or misrepresenting the source of the contribution;
    25    iv. engaging or employing a lobbyist or a consultant with  the  intent
    26  of understanding that the person would make or solicit any contribution;
    27  and
    28    v.  fund  contributions  made by third parties, including consultants,
    29  attorneys, family members, and employees.
    30    b. The governmental entity conducting the governmental procurement  or
    31  overseeing  the  business  entity or individual's business dealings with
    32  the state shall notify the business entity or individual of such  breach
    33  of  contract.   Such business entity or individual shall have sixty days
    34  to cure the defect by requesting that the excess  contributions  to  the
    35  statewide  elected  official,  member of the legislature or candidate be
    36  returned immediately. Proof of receipt of such return shall be submitted
    37  to the commissioner at least five business days prior to the awarding of
    38  the contract. In the event that proof of return of the  excess  contrib-
    39  ution limits are not submitted by the business entity or individual, the
    40  state agency shall reject the proposal or application.
    41    c.  A  business  entity or individual determined to have willingly and
    42  knowingly made a contribution in direct violation of this section  shall
    43  be  liable  for  a  penalty  of up to the value of its contract with the
    44  governmental entity and may be barred from contracting with any  govern-
    45  mental entity for a period of five years.
    46    d.  A  business entity or individual that files a false sworn contrib-
    47  utions statement shall have its contract with  the  governmental  entity
    48  declared  null and void and shall be disqualified from being awarded any
    49  contract with any governmental entity for a period of  four  years  from
    50  the  date  of  the  filing of such false statement. Such matter shall be
    51  referred to the local district attorney for prosecution.
    52    e. Contributions made by a business entity or individual made prior to
    53  the effective date of this section shall not constitute a violation. The
    54  disclosure requirements shall not apply to contracts related to business
    55  dealings with the state awarded subsequent to the effective date of this

        A. 9968                             5
     1  section if the request for proposal process was initiated prior to  such
     2  effective date.
     3    f.  The  office  of  general  services shall, on a bi-annual basis, in
     4  January and July, compile a  list  of  names,  based  on  such  office's
     5  records,  listing  any business entity or individual engaged in business
     6  dealings with the state, as of those months. Such  list  shall  be  made
     7  available on such office's website.
     8    §  2. If any section of this act or any part thereof shall be adjudged
     9  by any court of competent jurisdiction  to  be  invalid,  such  judgment
    10  shall  not  affect,  impair  or  invalidate  the  remainder or any other
    11  section or part thereof.
    12    § 3. This act shall take effect on the ninetieth day  after  it  shall
    13  have become a law.
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