Bill Text: NY A05748 | 2019-2020 | 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: Slight Partisan Bill (Democrat 18-6)

Status: (Introduced) 2019-02-14 - referred to election law [A05748 Detail]

Download: New_York-2019-A05748-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5748
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2019
                                       ___________
        Introduced  by  M. of A. GALEF, WOERNER, MOSLEY, BLAKE, DICKENS, JAFFEE,
          SIMON, GOTTFRIED, D'URSO, SEAWRIGHT, HYNDMAN, NIOU, ZEBROWSKI, CAHILL,
          JOHNS, RAIA, GIGLIO, MONTESANO --  Multi-Sponsored  by  --  M.  of  A.
          BUCHWALD,  CROUCH,  ENGLEBRIGHT,  EPSTEIN,  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-m to read as follows:
     3    §  139-m. 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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08242-01-9

        A. 5748                             2
     1    H. in the case of any other form of entity organized under the laws of
     2  this  state  or  any other state or foreign jurisdiction: the entity and
     3  any principal, officer, or partner thereof;
     4    ii.  any  subsidiary directly or indirectly controlled by the business
     5  entity;
     6    iii. any political organization organized under  section  527  of  the
     7  Internal  Revenue  Code that is directly or indirectly controlled by the
     8  business entity, other than a candidate  committee,  election  fund,  or
     9  political  party  committee;  and  with  respect to an individual who is
    10  included within the definition of  business  entity,  such  individual's
    11  spouse  or domestic partner, and any child residing with the individual,
    12  provided, however, that, this section shall not apply to a  contribution
    13  made  by such spouse, domestic partner, or child to a candidate for whom
    14  the contributor is entitled to vote or to a  political  party  committee
    15  within  whose  jurisdiction the contributor resides unless such contrib-
    16  ution is in violation of this section; or
    17    iv. any not-for-profit organization pursuant to  section  one  hundred
    18  seventy-nine-q of this chapter, or organized under the laws of the state
    19  or any other state or foreign jurisdiction.
    20    b.  "Contribution"  means  any monetary contribution, in-kind contrib-
    21  ution or gift.
    22    c. "In-kind contributions" shall include but not be limited to:
    23    i. goods or services offered free of charge;
    24    ii. goods and services offered at  less  than  the  usual  and  normal
    25  charge; and
    26    iii.  payments  by  a third party for goods and services rendered to a
    27  candidate or political committee.
    28    d. "Governmental entity" shall mean:
    29    i. any department, board, bureau, commission, division, office,  coun-
    30  cil, committee or officer of the state, whether permanent or temporary;
    31    ii. each house of the state legislature;
    32    iii. the unified court system;
    33    iv.  any  public  authority,  public benefit corporation or commission
    34  created by or existing pursuant to the public authorities law;
    35    v. a public authority or public benefit corporation, at least  one  of
    36  whose  members is appointed by the governor or who serves as a member by
    37  virtue of holding a civil office of the state;
    38    vi. municipal agency, as that term is defined  in  paragraph  (ii)  of
    39  subdivision (s) of section one-c of the legislative law; or
    40    vii. a subsidiary or affiliate of such a public authority.
    41    e. "Article of procurement" shall mean a commodity, service, technolo-
    42  gy,  public  work, construction, revenue contract, the purchase, sale or
    43  lease of real property or an acquisition or granting of  other  interest
    44  in real property, that is the subject of a governmental procurement.
    45    f. "Governmental procurement" shall mean:
    46    i.  the public announcement, public notice, or public communication to
    47  any potential vendor of a determination of a  need  for  a  procurement,
    48  which  shall  include, but not be limited to, the public notification of
    49  the specifications, bid documents, request for proposals, or  evaluation
    50  criteria for a procurement contract;
    51    ii. solicitation for a procurement contract;
    52    iii. evaluation of a procurement contract;
    53    iv.  award, approval, denial or disapproval of a procurement contract;
    54  or
    55    v. approval or denial of an assignment, amendment (other  than  amend-
    56  ments that are authorized and payable under the terms of the procurement

        A. 5748                             3
     1  contract  as  it  was finally awarded or approved by the comptroller, as
     2  applicable), renewal or extension of  a  procurement  contract,  or  any
     3  other  material change in the procurement contract resulting in a finan-
     4  cial benefit to the offerer.
     5    g.  "Procurement contract" shall mean any contract or other agreement,
     6  including an amendment, extension, renewal or change order to an  exist-
     7  ing  contract  (other  than  amendments, extensions, renewals, or change
     8  orders that are authorized and payable under the terms of  the  contract
     9  as  it  was  finally awarded or approved by the comptroller, as applica-
    10  ble), for an article of procurement involving  an  estimated  annualized
    11  expenditure  in  excess  of  fifteen  thousand  dollars. Grants, article
    12  eleven-B state finance law contracts, program contracts between not-for-
    13  profit organizations, as defined in article eleven-B  of  this  chapter,
    14  and the unified court system, intergovernmental agreements, railroad and
    15  utility force accounts, utility relocation project agreements or orders,
    16  contracts  governing  organ  transplants,  contracts  allowing for state
    17  participation in trade shows, and eminent domain transactions shall  not
    18  be deemed procurement contracts.
    19    h. "Business dealings with the state" shall mean:
    20    i.  Any  procurement  contract  for  articles  of  procurement that is
    21  entered into or in effect with the state, other than a contract procured
    22  through competitive sealed bidding, or sole and  single  source,  or  an
    23  emergency  contract  awarded  for  services  and commodities pursuant to
    24  section one hundred sixty-three of this chapter;
    25    ii. Any acquisition or disposition of real property with the state  or
    26  governmental entity;
    27    iii. One or more concessions (other than concessions awarded through a
    28  competitive  sealed  bid)  or  franchises from the state or governmental
    29  entity;
    30    iv. Any contract for the investment of state pension funds,  including
    31  investments  in  a  private  equity  firm  and contracts with investment
    32  related consultants.
    33    i. The term "statewide elected  official"  shall  mean  the  governor,
    34  lieutenant governor, comptroller or attorney general.
    35    2.  No business entity or individual who engages in any business deal-
    36  ings with the state  or  any  governmental  entity  or  its  independent
    37  authorities  if  the  value  of the transaction exceeds fifteen thousand
    38  dollars, shall make or have made monetary or in-kind contributions or  a
    39  pledge  of contribution in excess of one thousand dollars to an individ-
    40  ual who holds the position of a statewide elected official, a member  of
    41  the  legislature  or a candidate for such position, including the candi-
    42  date's committee or election fund, if such contract must  be  voted  on,
    43  endorsed,  promoted,  or  approved  by such individual or office related
    44  thereto; or a state, county or municipal political party  committee  for
    45  any political purpose or use:
    46    a.  within twelve months immediately preceding the commencement of the
    47  bidding and negotiations to engage in business dealings with  the  state
    48  or the commencement of the governmental procurement process;
    49    b. during the length of the term of the contract or agreement in busi-
    50  ness dealings with the state; or
    51    c.  within the twelve months immediately following the last day of the
    52  term of the contract or agreement.
    53    3. a. The state shall require a business entity or individual,  during
    54  the  governmental  procurement  process and prior to the awarding of any
    55  contract or agreement in business dealings with  the  state,  to  report
    56  through a disclosure statement listing all contributions made during the

        A. 5748                             4
     1  preceding twelve months to any statewide elected official, any member of
     2  the  legislature  or a candidate for such position, including the candi-
     3  date's committee or election fund or a state, county or municipal  poli-
     4  tical  party  committee  for any political purpose or use.  The business
     5  entity or individual shall also provide a written affidavit that it  has
     6  not  made a contribution that would bar the award of a contract pursuant
     7  to this section.
     8    b. The governmental entity  conducting  the  governmental  procurement
     9  shall  review  such  reports  prior  to  the awarding of any contract or
    10  agreement to engage in business dealings with  the  state  to  determine
    11  whether  such  business  entity or individual has made any contributions
    12  exceeding the limits set forth in subdivision two of this  section.  If,
    13  through  such  a review, it is determined that any such contribution, or
    14  any other act that would constitute a breach  of  contract  pursuant  to
    15  subdivision four of this section, or poses a conflict of interest in the
    16  awarding of any contract or agreement, the business entity or individual
    17  shall  be disqualified from bidding on or being awarded such contract or
    18  agreement to engage in business dealings with the  state.  The  business
    19  entity  or  individual  shall  have  a  continuing duty to report to the
    20  governmental entity  that  oversees  the  governmental  procurement  any
    21  contributions  that constitute a violation of this section that are made
    22  during the duration of the term of business dealings with the state.
    23    4. a. A breach of contract includes:
    24    i. making or soliciting a contribution in violation of this section;
    25    ii. knowingly concealing or misrepresenting a  contribution  given  or
    26  received;
    27    iii. making or soliciting contributions through intermediaries for the
    28  purpose of concealing or misrepresenting the source of the contribution;
    29    iv.  engaging  or employing a lobbyist or a consultant with the intent
    30  of understanding that the person would make or solicit any contribution;
    31  and
    32    v. fund contributions made by third  parties,  including  consultants,
    33  attorneys, family members, and employees.
    34    b.  The governmental entity conducting the governmental procurement or
    35  overseeing the business entity or individual's  business  dealings  with
    36  the  state shall notify the business entity or individual of such breach
    37  of contract.  Such business entity or individual shall have  sixty  days
    38  to  cure  the  defect by requesting that the excess contributions to the
    39  statewide elected official, member of the legislature  or  candidate  be
    40  returned immediately. Proof of receipt of such return shall be submitted
    41  to the commissioner at least five business days prior to the awarding of
    42  the  contract.  In the event that proof of return of the excess contrib-
    43  ution limits are not submitted by the business entity or individual, the
    44  state agency shall reject the proposal or application.
    45    c. A business entity or individual determined to  have  willingly  and
    46  knowingly  made a contribution in direct violation of this section shall
    47  be liable for a penalty of up to the value  of  its  contract  with  the
    48  governmental  entity and may be barred from contracting with any govern-
    49  mental entity for a period of five years.
    50    d. A business entity or individual that files a false  sworn  contrib-
    51  utions  statement  shall  have its contract with the governmental entity
    52  declared null and void and shall be disqualified from being awarded  any
    53  contract  with  any  governmental entity for a period of four years from
    54  the date of the filing of such false statement.  Such  matter  shall  be
    55  referred to the local district attorney for prosecution.

        A. 5748                             5
     1    e. Contributions made by a business entity or individual made prior to
     2  the effective date of this section shall not constitute a violation. The
     3  disclosure requirements shall not apply to contracts related to business
     4  dealings with the state awarded subsequent to the effective date of this
     5  section  if the request for proposal process was initiated prior to such
     6  effective date.
     7    f. The office of general services shall,  on  a  bi-annual  basis,  in
     8  January  and  July,  compile  a  list  of  names, based on such office's
     9  records, listing any business entity or individual engaged  in  business
    10  dealings  with  the  state,  as of those months. Such list shall be made
    11  available on such office's website.
    12    § 2. If any section of this act or any part thereof shall be  adjudged
    13  by  any  court  of  competent  jurisdiction to be invalid, such judgment
    14  shall not affect, impair  or  invalidate  the  remainder  or  any  other
    15  section or part thereof.
    16    §  3.  This  act shall take effect on the ninetieth day after it shall
    17  have become a law.
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