Bill Text: NJ A5436 | 2018-2019 | Regular Session | Introduced
Bill Title: Prohibits investment by State of pension and annuity funds in companies doing business with or in Cuba; prohibits award to or renewal of State contracts with persons or entities doing business with or in Cuba.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2019-05-20 - Introduced, Referred to Assembly State and Local Government Committee [A5436 Detail]
Download: New_Jersey-2018-A5436-Introduced.html
Sponsored by:
Assemblyman JOE HOWARTH
District 8 (Atlantic, Burlington and Camden)
SYNOPSIS
Prohibits investment by State of pension and annuity funds in companies doing business with or in Cuba; prohibits award to or renewal of State contracts with persons or entities doing business with or in Cuba.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the State investments and contracts with entities doing business in Cuba and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. The Legislature finds and declares that:
a. The State of New Jersey is deeply concerned about the asylum provided by Cuba to United States criminal fugitives. Despite the United States easing economic restrictions and progressing toward the reestablishment of diplomatic relations with Cuba, the Cuban government continues to refuse to extradite U.S. criminal fugitives who previously fled to Cuba.
b. One such fugitive, Joanne Chesimard, also known as Assata Shakur, was convicted of first degree murder for the 1973 death of New Jersey State Trooper, Werner Foerster, and was sentenced to life in prison for the murder and other felonies related to the murder. Thereafter, while serving her sentence, Chesimard was able to escape prison and flee to Cuba, where she was granted political asylum by the Cuban government. Chesimard remains on the FBI's Most Wanted Terrorist list.
c. Cuba's steadfast refusal to extradite Chesimard and other criminal fugitives demonstrates that any attempt by the United States to establish diplomatic relations is not being reciprocated by Cuba.
d. There are moral and reputational reasons for the State to stop investing in or awarding contracts to companies that have business activities benefiting foreign states, such as Cuba, that support acts of terrorism and commit violations of human rights.
e. The concerns of the Legislature regarding Cuba are strictly the result of the actions of the government of Cuba and should not be construed as enmity toward the Cuban people.
f. It is in the best interest of this State that a statutory prohibition be enacted to prohibit the investment of public employee retirement funds in companies conducting business in or with Cuba, and to prohibit awards or renewals of State contracts to companies conducting business in or with Cuba, including to financial institutions to manage public funds or public indebtedness, until Joanne Chesimard is returned to the United States or no longer can be returned.
2. a. Notwithstanding any provision of law to the contrary, no assets of any pension or annuity fund under the jurisdiction of the Division of Investment in the Department of the Treasury, or its successor, shall be invested in any company that has an equity tie to the government of Cuba, or any of its instrumentalities, or is engaged in business in or with that government and its instrumentalities until Joanne Chesimard is returned to the United States or no longer can be returned. This prohibition shall not apply to the activities of any company providing humanitarian aid to the Cuban people through either a governmental or non-governmental organization. The provisions of this section shall be construed to apply to the assets of the Police and Firemen's Retirement System of New Jersey.
b. The State Investment Council and the Director of the Division of Investment shall take appropriate action to sell, redeem, divest or withdraw any investment held in violation of subsection a. of this section. This section shall not be construed to require the premature or otherwise imprudent sale, redemption, divestment or withdrawal of an investment, but such sale, redemption, divestment or withdrawal shall be completed not later than three years following the effective date of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Within 60 days after the effective date of this act, the Director of the Division of Investment shall file with the Legislature, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), a report of all investments held as of the effective date that are in violation of subsection a. of this section. Every year thereafter, the director shall report on all investments sold, redeemed, divested, or withdrawn in compliance with subsection b. of this section.
Each report after the initial report shall provide a description of the progress that the division has made since the previous report and since the enactment of this act in implementing subsection b. of this section.
d. The members of the State Investment Council, jointly and individually, and State officers and employees involved therewith, shall be indemnified and held harmless by the State of New Jersey from all claims, demands, suits, actions, damages, judgments, costs, charges, and expenses, including court costs and attorney's fees, and against all liability, losses, and damages that these council members, and State officers and employees, may sustain by reason of any decision to restrict, reduce, or eliminate investments pursuant to this act.
e. As used in this section, "equity tie" means manufacturing or mining plants, employees or advisors, facilities, or an investment, fiduciary, monetary, or physical presence of any kind; and "humanitarian aid" means the provision of goods and services intended to relieve human suffering or to promote general welfare and health.
3. a. A person or entity that, at the time of bid or proposal for a new contract or renewal of an existing contract, is identified on a list created pursuant to subsection b. of this section as a person or entity engaging in investment, business, contract, or other financial activities in or with Cuba, shall be ineligible to, and shall not, bid on, submit a proposal for, or enter into or renew, a contract with a State agency for goods or services. As used in sections 3 through 5 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), a person or entity means a natural person, corporation, company, limited partnership, limited liability partnership, limited liability company, business association, sole proprietorship, joint venture, partnership, trust, financial institution managing public funds or public indebtedness, or any other nongovernmental entity, organization or group; any governmental entity or instrumentality of a governmental entity, including a multilateral development institution; and any parent, successor, subunit, direct or indirect subsidiary, or any other entity under common ownership or control with, any entity described herein.
b. Within 90 days of the effective date of this act, the Department of the Treasury shall, using credible information available to the public, develop a list of persons or entities it determines engage in investment, business, contract, or other financial activities in or with Cuba. The department shall update the list every 180 days. As used in sections 3 through 5 of this act, "engaging in investment, business, contract, or other financial activities in or with Cuba" means any "equity tie" as defined in section 2 of this act.
c. Before finalizing an initial list or an updated list pursuant to subsection b. of this section, the department shall do the following before a person or entity is included on the list:
(1) provide 90 days' written notice of its intent to include the person or entity on the list. The notice shall inform the person or entity that inclusion on the list would make the person or entity ineligible to bid on, submit a proposal for, or enter into or renew, a contract for goods or services with a State agency; and
(2) provide a person or entity with an opportunity to comment in writing that it is not engaged in investment, business, contract or other financial activities in or with Cuba. If the person or entity demonstrates to the department that the person or entity is not engaged investment, business, contract or other financial activities in or with Cuba, the person or entity shall not be included on the list.
If a person or entity is otherwise ineligible to bid on a contract as described in paragraph (3) of subsection a. of section 5 of this act, the business or entity shall be added to the list.
d. During the term of any contract, a person or entity shall not engage in investment, business, contract, or other financial activities in or with Cuba.
4. a. A State agency shall require a person or entity that submits a bid or proposal or otherwise proposes to enter into or renew a contract to certify, at the time the bid or proposal is submitted or the contract is renewed, that the person or entity is not identified on a list created pursuant to subsection b. of section 3 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), as a person or entity engaging in investment, business, contract or other financial activities in or with Cuba, and the person or entity is not engaging in investment, business, contract or other financial activities in or with Cuba.
b. The certification required shall be executed on behalf of the applicable person or entity by an authorized officer or representative of the person or entity.
c. In the event that a person or entity is unable to make the certification required because it or one of its parents, subsidiaries or affiliates has engaged in investment, business, contract or other financial activities in or with Cuba, the person or entity shall provide to the State agency concerned, prior to the deadline for delivery of such certification, a detailed and precise description of such activities, and the description shall be provided under penalty of perjury.
d. The certifications provided under subsection a. of this section and disclosures provided under subsection c. of this section shall be disclosed to the public.
5. a. If the department determines, using credible information available to the public and after providing 90 days' written notice and an opportunity to comment in writing for the person or entity to demonstrate that it is not engaged in investment, business, contract or other financial activities in or with Cuba, that the person or entity has submitted a false certification pursuant to section 4 of this act, P.L. c, (C. ) (pending before the Legislature as this bill), and the person or entity fails to demonstrate to the department that the person or entity has ceased its engagement in the investment, business, contract or other financial activities in or with Cuba within 90 days after the determination of a false certification, or that the person or entity was in violation of subsection d. of section 4 of this act, the following shall apply:
(1) pursuant to an action under subsection b. of this section, a civil penalty shall be imposed in an amount that is equal to the greater of $1,000,000 or twice the amount of the contract for which the false certification was made;
(2) an existing contract with the State agency shall be terminated as deemed appropriate by the State agency; and
(3) the person or entity shall be ineligible for a contract for a period of three years from the date of the determination that the person or entity submitted false certification.
b. The department shall report to the Attorney General the name of the person or entity that the department determines has submitted a false certification under section 4 of this act, together with its information as to the false certification, or that the person or entity has engaged in investment, business, contract or other financial activities in or with Cuba during the term of the contract. The Attorney General shall determine whether to bring a civil action in court against the person or entity to collect the penalty described in paragraph (1) of subsection a. of this section.
Only one civil action against the person or entity to collect the penalty described paragraph (1) of subsection a. of this section may be brought for a false certification or violation on a contract. A civil action to collect such penalty shall be commenced within three years from the date the certification is made, and shall be payable to the State Treasurer and may be recovered in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).
6. This act shall take effect on the first day of the sixth month next following enactment, except that the Department of the Treasury may take any anticipatory administrative action in advance as shall be necessary for the implementation of this act, and shall apply to contracts awarded or renewed after the effective date.
STATEMENT
This bill prohibits the investment of New Jersey public employee retirement funds in any company that has an equity tie to the government of Cuba, or any of its instrumentalities, or is engaged in business in or with that government until the Cuban government returns Joanne Chesimard, also known as Assata Shakur, to the United States or until such time as Joanne Chesimard can no longer be returned to the United States.
The bill does not apply to the activities of any company providing humanitarian aid to the Cuban people through either a governmental or non-governmental organization.
The bill requires the State Investment Council and the Director of the Division of Investment to take appropriate action to divest any investment held in violation of the prohibition. Periodic progress reports by the division regarding these divestments are required by this bill.
This bill also prohibits any person or entity from contracting with New Jersey if the business or entity is engaged in investment, business, contract or other financial activities in or with Cuba. The Department of the Treasury is required to develop a list of persons or entities it determines engage in investment, business, contract or other financial activities in or with Cuba, and would therefore be ineligible for an award or renewal of a contract with the State. The bill requires the department to update the list every 180 days.
Under this bill, a person or entity that submits a bid or proposal or otherwise proposes to enter into or renew a contract is required to certify, at the time the bid or proposal is submitted or the contract is renewed, that the person or entity is not engaging in investment, business, contract or other financial activities in or with Cuba. False certifications would be subject to civil penalties, termination of any contract with the State, and a bar from contracting with the State for three years. This bill requires false certifications to be reported to the Attorney General, who shall determine whether to bring a civil action in court against the person or entity.
Current State law provides that the State is prohibited from investing pension and annuity funds companies with financial ties to Iran or Sudan, and entities that boycott Israel. State law also disqualifies any person engaging in investment activities with Iran from bidding on public contracts.
