Bill Text: PA HB1821 | 2009-2010 | Regular Session | Amended

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Bill Title: Providing for divestiture by the State Treasurer, the State Employees' Retirement System and the Public School Employees' Retirement System of investments in companies doing business in Iran and Sudan.

Sponsorship: Slight Partisan Bill (Democrat 57-26)

Status: (Engrossed - Dead) 2009-12-14 - Referred to FINANCE [HB1821 Detail]

Download: Pennsylvania-2009-HB1821-Amended.html

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PRIOR PRINTER'S NOS. 2370, 2447 PRINTER'S NO. 2968
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1821 Session of2009
INTRODUCED BY SHAPIRO, JOSEPHS, BENNINGHOFF, FRANKEL, SANTARSIERO, EACHUS, S. H. SMITH, DeWEESE, D. EVANS, BOYLE, BISHOP, BOYD, BRADFORD, BRIGGS, CALTAGIRONE, CARROLL, CLYMER, COHEN, D. COSTA, CURRY, CUTLER, DeLUCA, DENLINGER, DePASQUALE, DERMODY, DONATUCCI, DRUCKER, FABRIZIO, FLECK, FREEMAN, GALLOWAY, GIBBONS, GOODMAN, HARPER, HENNESSEY, HESS, HORNAMAN, HOUGHTON, KAUFFMAN, KORTZ, KULA, LENTZ, LEVDANSKY, MAHONEY, MANN, MATZIE, McGEEHAN, McILVAINE SMITH, MELIO, METCALFE, METZGAR, MICOZZIE, MUNDY, MURT, MUSTIO, MYERS, M. O'BRIEN, PALLONE, PARKER, PASHINSKI, PAYTON, PERZEL, RAPP, READSHAW, REED, ROHRER, SAYLOR, SCHRODER, SEIP, SIPTROTH, K. SMITH, M. SMITH, STURLA, SWANGER, TALLMAN, R. TAYLOR, THOMAS, TRUE, VEREB, WAGNER, WALKO, WANSACZ AND YOUNGBLOOD, JULY 2, 2009
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, DECEMBER 7, 2009
AN ACT
Providing for divestiture by the State Treasurer, the State
Employees' Retirement System and the Public School Employees'
Retirement System of investments in companies doing business
in Iran and Sudan.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Protecting
Pennsylvania's Investments Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Alternative investments." An investment in a private equity
fund, private debt fund, venture fund, real estate fund, hedge
fund or absolute return fund.
"Board." As defined in section 102 of the act of February 1,
1974 (P.L.34, No.15), known as the Pennsylvania Municipal
Retirement Law; 24 Pa.C.S. § 8102 (relating to definitions); or
71 Pa.C.S. § 5102 (relating to definitions).
"Business activities." Owning or controlling property or
assets located in, having employees or facilities located in,
providing goods or services to, having distribution agreements
with, issuing credit or loans to, purchasing bonds or commercial
paper issued by, investing in or having equity ties to or with
Iran, Sudan or any company domiciled in Iran or Sudan.
"Company." Any sole proprietorship, organization,
association, corporation, partnership, joint venture, limited
partnership, limited liability partnership, limited liability
company or other entity or business association that exists for
the purpose of making a profit.
"Direct holdings." All securities of a company that are held
directly by the public fund.
"Foreign company." Any entity which is not organized under
the laws of the United States.
"Government of Iran." The government of Iran and its
instrumentalities and companies owned or controlled by the
government of Iran.
"Government of Sudan." The government in Khartoum, Sudan,
which is led by the National Congress Party, formerly known as
the National Islamic Front, or any successor government formed
on or after October 13, 2006, including the coalition the
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National Unity Government agreed upon in the Comprehensive Peace
Agreement for Sudan. The term does not include the regional
government of southern Sudan.
"Inactive business activities." The continued holding or
renewal of rights to property previously operated for the
purpose of generating revenues but not presently deployed for
that purpose.
"Indemnitee." Each current or former board member, duly
appointed designee of a board member, officer, employee,
including, without limitation, the attorneys in the Office of
Chief Counsel that serve a public fund, agent, research firm or
investment manager of a public fund who was or is a party to, or
is threatened to be made a party to, or is otherwise involved in
any proceeding by reason of the fact that the person is or was a
board member, designee of a board member, officer, employee,
agent, research firm or investment manager of a public fund.
"Indirect holdings." All securities held in an account or
fund such as a mutual fund managed by one or more persons not
employed by a public fund, in which the public fund owns shares
or interests together with other investors.
"Iran." The Islamic Republic of Iran.
"List of State Sponsors of Terrorism." The list of countries
designated by the United States Secretary of State as having
repeatedly provided support for acts of international terrorism
as reported annually in Country Reports on Terrorism under
section 140 of the Foreign Relations Authorization Act, Fiscal
Years 1988 and 1989 (Public Law 100-24, 26 U.S.C. § 2656(f)).
"Marginalized populations of Sudan." Include, but are not
limited to, the portion of the population in the Darfur region
that has been genocidally victimized; the portion of the
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population of southern Sudan victimized by Sudan's North-South
civil war; the Beja, Rashidiya and other similarly underserved
groups of eastern Sudan; the Nubian and other similarly
underserved groups in Sudan's Abyei, Southern Blue Nile and Nuba
Mountain regions; and the Amri, Hamadab, Manasir and other
similarly underserved groups of northern Sudan.
"Military equipment." Weapons, arms, military supplies and
equipment that may be used readily for military purposes,
including, but not limited to, radar systems or military-grade
transport vehicles. This term shall also include supplies or
services sold or provided directly or indirectly to any force
actively participating in armed conflict in Sudan.
"Mineral extraction activities." Include exploring,
extracting, processing, transporting or wholesale selling or
trading of elemental minerals or associated metal alloys or
oxides (ore), including gold, copper, chromium, chromite,
diamonds, iron, iron ore, silver, tungsten, uranium and zinc, as
well as facilitating such activities, including by providing
supplies or services in support of such activities.
"Oil-related activities." The term includes all of the
following:
(1) Development of petroleum or natural gas resources of
Iran or Sudan. This paragraph does not include the mere sale
of gasoline and related consumer products.
(2) Owning rights to oil or natural gas blocks.
(3) Exporting, extracting, producing, refining,
processing, exploring for, transporting, selling or trading
oil or natural gas.
(4) Constructing, maintaining or operating any pipeline,
refinery, liquefaction facility or other oil or natural gas
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infrastructure.
(5) Facilitating activities referred to in paragraph
(1), (2), (3) or (4), including by supplying services in
support of the activities.
"Power production activities." Business operations <--
activities that involve a project commissioned by the National <--
Electricity Corporation (NEC) of Sudan or other similar
government of Sudan entity whose purpose is to facilitate power
generation and delivery, including, but not limited to,
establishing power-generating plants or hydroelectric dams,
selling or installing components for the project, providing
service contracts related to the installation or maintenance of
the project, as well as facilitating such activities, including
by providing supplies or services in support of such activities.
"Proceeding." Any threatened, pending or completed action,
suit or proceeding, including, without limitation, an action,
suit or proceeding by or in the right of a public fund, relating
to compliance with any investment limitations imposed by
statute, whether civil, criminal, administrative, investigative
or through arbitration.
"Public fund." Any of the following:
(1) The State Employees' Retirement Fund established
pursuant to 71 Pa.C.S. Pt. XXV (relating to retirement for
State employees and officers).
(2) The Public School Employees' Retirement Fund
established pursuant to 24 Pa.C.S. Pt. IV (relating to
retirement for school employees).
(3) The Pennsylvania Municipal Retirement Fund.
(4) Any Commonwealth fund of which the State Treasurer
is the custodian.
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"Scrutinized business activities." Business activities that
have resulted in a company becoming a scrutinized company.
"Scrutinized company." Any of the following:
(1) Any foreign company that has:
(i) invested at least $20,000,000 in oil-related
activities in Iran in any 12-month period since August 5,
1996;
(ii) supplied military equipment to the government
of Iran within the 12-month period prior to the effective
date of this section; or
(iii) knowingly and intentionally violated the
United States export controls with respect to Iran during
the 12-month period prior to the effective date of this
section.
(2) Any foreign company that meets the criteria set
forth either in subparagraph (i) or (ii):
(i) The company has business operations activities <--
that involve contracts with or provision of supplies or
services to the government of Sudan, companies in which
the government of Sudan has any direct equity share,
government of Sudan-commissioned consortiums or projects,
or companies involved in government of Sudan-commissioned
consortiums or projects; and
(A) More than 10% of the company's revenue or
assets linked to Sudan involve oil-related activities
or mineral extraction activities; less than 75% of
the company's revenues or assets linked to Sudan
involve contracts with or provision of oil-related or
mineral extracting products or services to the
regional government of southern Sudan or a project or
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consortium created exclusively by that regional
government; and the company has failed to take
substantial action specific to Sudan; or
(B) More than 10% of the company's revenues or
assets linked to Sudan involve power production
activities; less than 75% of the company's power
production activities include projects whose intent
is to provide power or electricity to the
marginalized populations of Sudan; and the company
has failed to take substantial action specific to
Sudan.
(ii) The company supplies military equipment within
Sudan, unless it clearly shows that the military
equipment cannot be used to facilitate offensive military
actions in Sudan or the company implements rigorous and
verifiable safeguards to prevent use of that equipment by
forces actively participating in armed conflict, for
example, through post-sale tracking of such equipment by
the company, certification from a reputable and objective
third party that such equipment is not being used by a
party participating in armed conflict in Sudan, or sale
of such equipment solely to the regional government of
southern Sudan or any internationally recognized
peacekeeping force or humanitarian organization.
The term does not include a foreign company that is a social
development company.
"Social development company." A company whose primary
purpose in Iran or Sudan is to provide humanitarian goods or
services, including medicine or medical equipment, agricultural
supplies or infrastructure; educational opportunities;
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journalism-related activities; information or information
materials; spiritual-related activities; services of a purely
clerical or reporting nature; food, clothing or general consumer
goods.
"Substantial action specific to Iran." Adopting, publicizing
and implementing a formal plan to cease scrutinized business
activities within one year and to refrain from any such new
business activities in Iran.
"Substantial action specific to Sudan." Adopting,
publicizing and implementing a formal plan to cease scrutinized
business activities within one year and to refrain from any such
new business activities; undertaking significant humanitarian
efforts in conjunction with an international organization, the
government of Sudan, the regional government of southern Sudan
or a nonprofit entity and evaluated and certified by an
independent third party to be substantial in relationship to the
company's Sudan business activities and of benefit to one or
more marginalized populations of Sudan; or through engagement
with the government of Sudan, materially improving conditions
for the genocidally victimized population in Darfur.
"Sudan." The Democratic Republic of Sudan.
Section 3. Identification of companies.
(a) Best effort.--Within 90 days after the effective date of
this section, a public fund shall make its best effort to
identify all scrutinized companies in which the public fund has
direct holdings. A public fund shall review, as appropriate in
the public fund's judgment, publicly available information
regarding foreign companies that have scrutinized business
activities, including information provided by nonprofit
organizations, research firms, international organizations and
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government entities.
(b) Assembly.--By the first meeting of a public fund
following the time period under subsection (a), the public fund
shall assemble all scrutinized companies that fit the criteria
specified in paragraph (1) of the definition of "scrutinized
company" into a Scrutinized Companies with Activities in Iran
List and shall assemble all scrutinized companies that fit
criteria specified in paragraph (2) of the definition of
"scrutinized company" into a Scrutinized Companies with
Activities in Sudan List.
Section 4. Required actions.
(a) Procedure.--A public fund shall adhere to the procedures
under this section for determining companies on its Scrutinized
Companies with Activities in Iran List and Scrutinized Companies
with Activities in Sudan List that qualify for divestment.
(b) Engagement.--
(1) For each company on a public fund's Scrutinized
Companies with Activities in Iran List or Scrutinized
Companies with Activities in Sudan List in which the public
fund has direct holdings, the public fund shall send a
written notice informing the company of its scrutinized
company status and specify the business activities which have
resulted in this determination and that it may become subject
to divestment by the public fund. The notice must inform the
company of the opportunity to clarify its scrutinized
business activities and encourage the company, within 90 days
of the date of receipt of the notice, to cease its
scrutinized business activities in Iran, Sudan or both, or
convert the activities to inactive business activities in
order to avoid qualifying for divestment by the public fund.
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The notice shall be sent no later than 120 days after the
effective date of this section.
(2) If, within 90 days of the date of receipt of a
notice under paragraph (1), a company announces by public
disclosure substantial action specific to Iran or substantial
action specific to Sudan, the public fund may maintain its
holdings, but the company shall remain on the Scrutinized
Companies with Activities in Iran List or Scrutinized
Companies with Activities in Sudan List pending completion of
the companies' cessation of scrutinized business activities.
Following completion of a company's cessation of scrutinized
business activities, the public fund shall remove the company
from its Scrutinized Companies with Activities in Iran List
or Scrutinized Companies with Activities in Sudan List.
(c) Divestment.--
(1) If, after 90 days following the effective date of
receipt of the notice under subsection (b)(1), a company has
not announced by public disclosure substantial action
specific to Iran, substantial action specific to Sudan or
both as specified in the notice, or the public fund
determines or becomes aware that the company continues to
have scrutinized business activities, the public fund, within
15 months after the 90-day period, shall sell, redeem, divest
or withdraw from its direct holdings all securities of the
company.
(2) If a public fund determines or becomes aware that a
company that ceased scrutinized business activities following
engagement under subsection (b) has resumed the activities,
the public fund shall send a written notice to the company
under subsection (b), and the company shall be immediately
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placed onto the public fund's Scrutinized Companies with
Activities in Iran List or Scrutinized Companies with
Activities in Sudan List.
(3) A public fund shall monitor a scrutinized company
that has announced by public disclosure substantial action
specific to Iran, substantial action specific to Sudan or
both. If after one year the public fund determines or becomes
aware that the company has not implemented the plan, within
15 months after the expiration of the one-year period, the
public fund shall sell, redeem, divest or withdraw from its
direct holdings all securities of the company.
(d) Prohibition.--A public fund may not acquire securities
of a company on its Scrutinized Companies with Activities in
Iran List or Scrutinized Companies with Activities in Sudan
List.
(e) Excluded securities.--Nothing in this act shall apply to
the public fund's holdings in alternative investments or
indirect holdings.
Section 5. Reporting.
(a) Report to United States Attorney General.--Within 30
days of the passage of this act, administrators of the public
fund shall file a written report to the United States Attorney
General detailing the requirements contained in this act.
(b) Duty of public fund.--A public fund shall, within one
year of assembly of its Scrutinized Companies with Activities in
Iran List and Scrutinized Companies with Activities in Sudan
List, provide a report to the Governor; the President pro
tempore of the Senate; the Speaker of the House of
Representatives; and each member of the boards of the
Pennsylvania Municipal Retirement System, the State Employees'
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Retirement System and Public School Employees' Retirement
System. The report shall include the items required under
subsection (c). The report shall be made available to the
public.
(c) Contents.--The report under subsection (b) shall include
the most recent Scrutinized Companies with Activities in Iran
List and Scrutinized Companies with Activities in Sudan List and
all of the following:
(1) A summary of correspondence with scrutinized <--
companies engaged by the public fund under section 4.
(2) All investments sold, redeemed, divested or
withdrawn in compliance with section 4(c), the costs and
expenses of such transfers, and a determination of net gain
or loss on account of such transactions incurred in
compliance with the provisions of this act.
(3) All prohibited investments under section 4(d).
(4) A list of all publicly traded securities held by the
public fund.
(d) Update.--A public fund shall do all of the following:
(1) Annually update, based on evolving information under
subsection (c), and make publicly available its Scrutinized
Companies with Activities in Iran List and Scrutinized
Companies with Activities in Sudan List.
(2) Provide a copy of the lists under paragraph (1),
including updates, to all other public funds.
Section 6. Expiration.
(a) Recurrence of investment in Iran.--A public fund shall
have no obligations under this act with respect to a company
engaged in business activities in Iran upon the occurrence of
any of the following:
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(1) Iran does not appear on the List of State Sponsors
of Terrorism.
(2) The President or Congress of the United States,
through legislation or executive order, declares that
mandatory divestment of the type provided for in this act
interferes with the conduct of United States foreign policy.
(b) Recurrence of investment in Sudan.--A public fund shall
have no obligations under this act with respect to a company
engaged in business activities in Sudan upon the occurrence of
any of the following:
(1) The President or Congress of the United States
declares Darfur genocide has been halted for at least 12
months.
(2) Sudan does not appear on the list of State Sponsors
of Terrorism.
(3) The President or Congress of the United States
declares that the government of Sudan has honored its
commitments to cease attacks on civilians, demobilize and
demilitarize the Janjaweed and associated militias, grant
free and unfettered access for deliveries of humanitarian
assistance and allow for the safe and voluntary return of
refugees and internally displaced persons under the Sudan
Accountability and Divestment Act of 2007 (P.L. 110-174, 121
Stat. 2516).
(4) The President or Congress of the United States,
through legislation or executive order, declares that
mandatory divestment of the type provided for in this act
interferes with the conduct of United States foreign policy.
Section 7. Conflict with other laws.
A public fund may perform any action necessary to comply with
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this act, notwithstanding the provisions of any other law,
including, but not limited to, any fiduciary or prudent
investing responsibilities as prescribed in 24 Pa.C.S. § 8521
(relating to management of fund and accounts) and 71 Pa.C.S. §
5931 (relating to management of fund and accounts) and any
obligations of a public fund with respect to choice of asset
managers, investment funds or investments for the public fund's
securities portfolios.
Section 8. Indemnification.
(a) General rule.--Each indemnitee shall be indemnified and
held harmless by the Commonwealth for all good faith actions
taken by the indemnitee and for all good faith failures to take
action, regardless of the date of any such action or failure to
take action, in connection with attempts to comply with any
investment limitations imposed by statute against all expense,
liability and loss, including, without limitation, attorney
fees, judgments, fines, taxes, penalties and amounts paid or to
be paid in settlements reasonably incurred or suffered by the
indemnitee in connection with any proceeding.
(b) Advance payment.--The right to indemnification provided
in this section shall include the right to have the expenses
reasonably incurred by the indemnitee in defending any
proceeding paid by the Commonwealth in advance of the final
disposition of the proceeding upon the receipt by the
Commonwealth of a written undertaking by the indemnitee to
refund the amounts so advanced if it is ultimately determined
that the indemnitee is not entitled to indemnification under
this section.
(c) Persons entitled.--Indemnification pursuant to this
section shall continue as to an indemnitee who has ceased to be
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a board member, designee of a board member, officer or employee
of a public fund and shall inure to the benefit of such person's
legal representatives, heirs, executors and administrators.
(d) Reimbursement to public funds.--To the extent that the
Commonwealth does not make any indemnification payments,
including any advancement of legal fees and expenses, within 30
days of demand therefor, a public fund shall make such payment
and the Commonwealth shall reimburse the public fund.
(e) Construction.--The repeal, expiration or amendment of
any provision of this section shall not limit the rights of any
indemnitee to indemnification, including advancement of
expenses, with respect to any action or failure to act occurring
prior to the effective date of such repeal or amendment.
Section 9. Fund reimbursement.
The Commonwealth shall reimburse each public fund for their
net losses, costs and expenses incurred as a result of
compliance with the provisions of this act. The reimbursements
shall occur in the following manner:
(1) The public fund shall submit to the Secretary of the
Budget an itemization of the amount necessary to be
appropriated by the General Assembly to reimburse the public
fund for their net losses, costs and expenses incurred as a
result of compliance with the provisions of this act in the
previous fiscal year. To the extent the public fund
experiences net gains as a result of compliance with the
provisions of this act in a fiscal year, the net gains shall
be used to offset any reported costs or expenses incurred by
the public fund.
(2) In consultation with each public fund, the Secretary
of the Budget shall annually establish a uniform method for
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the determination of gains and losses. The method shall be
used by each public fund in making a claim for reimbursement
under this section. The budget submission shall be on a form
and in a manner determined by the secretary of the budget,
including net losses, along with an itemized accounting of
all costs and expenses claimed by the public fund. Budget
submission shall occur no later than November 1 following the
fiscal year in which the net losses, costs and expenses were
incurred.
(3) Upon appropriation by the General Assembly to
provide for the obligations of the Commonwealth, the amount
shall be paid by the State Treasurer through the Department
of Revenue into the public fund within 90 days of receipt of
the requisition presented by the public fund.
Section 10. Severability.
If any provision of this act or its application to any person
or circumstances is held invalid, the invalidity shall not
affect other provisions or applications of this act that can be
given effect without the invalid provision or application.
Section 30. Effective date.
This act shall take effect immediately.
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