Disclose Political Donations

Section 1. The state finance law is amended by adding a new section 139-m to read as follows:

§ 139-m. Reporting of contributions by business entities and individuals. 1. For the purposes of this section, the following terms shall have the following meanings:

a. "Business entity" means:

i. a for-profit entity as follows:

A. in the case of a corporation: the corporation, any officer of the corporation, and any person or business entity that owns or controls ten percent or more of the stock of the corporation;

B. in the case of a general partnership: the partnership and any partner;

C. in the case of a limited partnership: the limited partnership and any partner;

D. in the case of a professional corporation: the professional corporation and any shareholder or officer;

E. in the case of a limited liability company: the limited liability company and any member;

F. in the case of a limited liability partnership: the limited liability partnership and any partner;

G. in the case of a sole proprietorship: the proprietor; and

H. in the case of any other form of entity organized under the laws of this state or any other state or foreign jurisdiction: the entity and any principal, officer, or partner thereof;

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD08242-01-9

S. 5892 2

ii. any subsidiary directly or indirectly controlled by the business entity;

iii. any political organization organized under section 527 of the Internal Revenue Code that is directly or indirectly controlled by the business entity, other than a candidate committee, election fund, or political party committee; and with respect to an individual who is included within the definition of business entity, such individual's spouse or domestic partner, and any child residing with the individual, provided, however, that, this section shall not apply to a contribution made by such spouse, domestic partner, or child to a candidate for whom the contributor is entitled to vote or to a political party committee within whose jurisdiction the contributor resides unless such contribution is in violation of this section; or

iv. any not-for-profit organization pursuant to section one hundred seventy-nine-q of this chapter, or organized under the laws of the state or any other state or foreign jurisdiction.

b. "Contribution" means any monetary contribution, in-kind contribution or gift.

c. "In-kind contributions" shall include but not be limited to:

i. goods or services offered free of charge;

ii. goods and services offered at less than the usual and normal charge; and

iii. payments by a third party for goods and services rendered to a candidate or political committee.

d. "Governmental entity" shall mean:

i. any department, board, bureau, commission, division, office, council, committee or officer of the state, whether permanent or temporary;

ii. each house of the state legislature;

iii. the unified court system;

iv. any public authority, public benefit corporation or commission created by or existing pursuant to the public authorities law;

v. a public authority or public benefit corporation, at least one of whose members is appointed by the governor or who serves as a member by virtue of holding a civil office of the state;

vi. municipal agency, as that term is defined in paragraph (ii) of subdivision (s) of section one-c of the legislative law; or

vii. a subsidiary or affiliate of such a public authority.

e. "Article of procurement" shall mean a commodity, service, technology, public work, construction, revenue contract, the purchase, sale or lease of real property or an acquisition or granting of other interest in real property, that is the subject of a governmental procurement.

f. "Governmental procurement" shall mean:

i. the public announcement, public notice, or public communication to any potential vendor of a determination of a need for a procurement, which shall include, but not be limited to, the public notification of the specifications, bid documents, request for proposals, or evaluation criteria for a procurement contract;

ii. solicitation for a procurement contract;

iii. evaluation of a procurement contract;

iv. award, approval, denial or disapproval of a procurement contract; or

v. approval or denial of an assignment, amendment (other than amendments that are authorized and payable under the terms of the procurement contract as it was finally awarded or approved by the comptroller, as applicable), renewal or extension of a procurement contract, or any

S. 5892 3

other material change in the procurement contract resulting in a financial benefit to the offerer.

g. "Procurement contract" shall mean any contract or other agreement, including an amendment, extension, renewal or change order to an existing contract (other than amendments, extensions, renewals, or change orders that are authorized and payable under the terms of the contract as it was finally awarded or approved by the comptroller, as applicable), for an article of procurement involving an estimated annualized expenditure in excess of fifteen thousand dollars. Grants, article eleven-B state finance law contracts, program contracts between not-forprofit organizations, as defined in article eleven-B of this chapter, and the unified court system, intergovernmental agreements, railroad and utility force accounts, utility relocation project agreements or orders, contracts governing organ transplants, contracts allowing for state participation in trade shows, and eminent domain transactions shall not be deemed procurement contracts.

h. "Business dealings with the state" shall mean:

i. Any procurement contract for articles of procurement that is entered into or in effect with the state, other than a contract procured through competitive sealed bidding, or sole and single source, or an emergency contract awarded for services and commodities pursuant to section one hundred sixty-three of this chapter;

ii. Any acquisition or disposition of real property with the state or governmental entity;

iii. One or more concessions (other than concessions awarded through a competitive sealed bid) or franchises from the state or governmental entity;

iv. Any contract for the investment of state pension funds, including investments in a private equity firm and contracts with investment related consultants.

i. The term "statewide elected official" shall mean the governor, lieutenant governor, comptroller or attorney general.

2. No business entity or individual who engages in any business dealings with the state or any governmental entity or its independent authorities if the value of the transaction exceeds fifteen thousand dollars, shall make or have made monetary or in-kind contributions or a pledge of contribution in excess of one thousand dollars to an individual who holds the position of a statewide elected official, a member of the legislature or a candidate for such position, including the candidate's committee or election fund, if such contract must be voted on, endorsed, promoted, or approved by such individual or office related thereto; or a state, county or municipal political party committee for any political purpose or use:

a. within twelve months immediately preceding the commencement of the bidding and negotiations to engage in business dealings with the state or the commencement of the governmental procurement process;

b. during the length of the term of the contract or agreement in business dealings with the state; or

c. within the twelve months immediately following the last day of the term of the contract or agreement.

3. a. The state shall require a business entity or individual, during the governmental procurement process and prior to the awarding of any contract or agreement in business dealings with the state, to report through a disclosure statement listing all contributions made during the preceding twelve months to any statewide elected official, any member of the legislature or a candidate for such position, including the candi-

S. 5892 4

date's committee or election fund or a state, county or municipal political party committee for any political purpose or use. The business entity or individual shall also provide a written affidavit that it has not made a contribution that would bar the award of a contract pursuant to this section.

b. The governmental entity conducting the governmental procurement shall review such reports prior to the awarding of any contract or agreement to engage in business dealings with the state to determine whether such business entity or individual has made any contributions exceeding the limits set forth in subdivision two of this section. If, through such a review, it is determined that any such contribution, or any other act that would constitute a breach of contract pursuant to subdivision four of this section, or poses a conflict of interest in the awarding of any contract or agreement, the business entity or individual shall be disqualified from bidding on or being awarded such contract or agreement to engage in business dealings with the state. The business entity or individual shall have a continuing duty to report to the governmental entity that oversees the governmental procurement any contributions that constitute a violation of this section that are made during the duration of the term of business dealings with the state.

4. a. A breach of contract includes:

i. making or soliciting a contribution in violation of this section;

ii. knowingly concealing or misrepresenting a contribution given or received;

iii. making or soliciting contributions through intermediaries for the purpose of concealing or misrepresenting the source of the contribution;

iv. engaging or employing a lobbyist or a consultant with the intent of understanding that the person would make or solicit any contribution; and

v. fund contributions made by third parties, including consultants, attorneys, family members, and employees.

b. The governmental entity conducting the governmental procurement or overseeing the business entity or individual's business dealings with the state shall notify the business entity or individual of such breach of contract. Such business entity or individual shall have sixty days to cure the defect by requesting that the excess contributions to the statewide elected official, member of the legislature or candidate be returned immediately. Proof of receipt of such return shall be submitted to the commissioner at least five business days prior to the awarding of the contract. In the event that proof of return of the excess contribution limits are not submitted by the business entity or individual, the state agency shall reject the proposal or application.

c. A business entity or individual determined to have willingly and knowingly made a contribution in direct violation of this section shall be liable for a penalty of up to the value of its contract with the governmental entity and may be barred from contracting with any governmental entity for a period of five years.

d. A business entity or individual that files a false sworn contributions statement shall have its contract with the governmental entity declared null and void and shall be disqualified from being awarded any contract with any governmental entity for a period of four years from the date of the filing of such false statement. Such matter shall be referred to the local district attorney for prosecution.

e. Contributions made by a business entity or individual made prior to the effective date of this section shall not constitute a violation. The disclosure requirements shall not apply to contracts related to business

S. 5892 5

dealings with the state awarded subsequent to the effective date of this section if the request for proposal process was initiated prior to such effective date.

f. The office of general services shall, on a bi-annual basis, in January and July, compile a list of names, based on such office's records, listing any business entity or individual engaged in business dealings with the state, as of those months. Such list shall be made available on such office's website.

§ 2. If any section of this act or any part thereof shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder or any other section or part thereof.

§ 3. This act shall take effect on the ninetieth day after it shall have become a law.