Senate Bill sb0524c1

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    Florida Senate - 2007                            CS for SB 524

    By the Committee on Ethics and Elections; and Senator Fasano





    582-2132-07

  1                      A bill to be entitled

  2         An act relating to state public officials;

  3         creating s. 112.3142, F.S.; providing

  4         legislative intent; defining the term "covered

  5         public official"; requiring a covered public

  6         official before taking office to place all of

  7         his or her personal investments traded on a

  8         national or regional exchange into a publicly

  9         traded mutual fund or a qualified blind trust;

10         providing for after-acquired financial

11         interests; prohibiting a conflict of interest

12         with respect to a blind trust; prohibiting a

13         covered public official from attempting to

14         influence or exercise any control over

15         decisions regarding the management of the blind

16         trust; authorizing certain communications with

17         the trustee of the blind trust; requiring the

18         covered public official to report the blind

19         trust on his or her financial disclosure

20         statement; setting forth the requirements for a

21         qualifying blind trust; requiring that a copy

22         of the qualified blind trust agreement be filed

23         with the Commission on Ethics within a

24         specified period; providing for the revocation

25         of a qualified blind trust; creating an

26         exemption for certain public officials;

27         providing an effective date.

28  

29  Be It Enacted by the Legislature of the State of Florida:

30  

31  

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    Florida Senate - 2007                            CS for SB 524
    582-2132-07




 1         Section 1.  Section 112.3142, Florida Statutes, is

 2  created to read:

 3         112.3142  Qualified blind trusts.--

 4         (1)  The Legislature finds that where a trust is

 5  created by a public official and the official does not know

 6  the identity of the financial interests held by the trust and

 7  does not control the interests held by the trust, his or her

 8  official actions will not be influenced or appear to be

 9  influenced by private considerations. Therefore, the

10  Legislature intends that such trusts be established and

11  operate in a manner that ensures that there is an actual lack

12  of knowledge and control by the official with respect to the

13  interests held in trust.

14         (2)  As used in this section, the term "covered public

15  official" means the Governor, the Lieutenant Governor, and

16  each member of the Cabinet as specified in s. 4, Art. IV of

17  the State Constitution.

18         (3)(a)  A covered public official shall, before taking

19  office, place all of his or her personal investments in any

20  form of property publicly traded on a national or regional

21  exchange, other than interests in publicly traded mutual

22  funds, into a publicly traded mutual fund or qualified blind

23  trust.

24         (b)  During the covered public official's term of

25  office, he or she may not voluntarily acquire any personal

26  investment in any form of property which is publicly traded on

27  a national or regional exchange, except in the form of

28  publicly traded mutual funds.

29         (c)  If the covered public official acquires a

30  financial interest in any form of property that is publicly

31  traded on a national or regional exchange, other than an

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    Florida Senate - 2007                            CS for SB 524
    582-2132-07




 1  interest in publicly traded mutual funds, during the covered

 2  public official's term of office due to events or actions

 3  beyond his or her control, he or she shall immediately sell

 4  the financial interest or place the financial interest in a

 5  qualified blind trust.

 6         (d)  A covered public official may place other forms of

 7  personal investments, as provided in this section, into a

 8  qualified blind trust.

 9         (4)  If a covered public official holds a financial

10  interest in a qualified blind trust that meets the

11  requirements of this section, he or she will not have a

12  conflict of interest that is prohibited under s. 112.313(3) or

13  s. 112.313(7), or a voting conflict of interest under s.

14  112.3143, with respect to that financial interest.

15         (5)  Except as otherwise provided in this section, the

16  covered public official and any other person having a

17  beneficial interest in a qualified blind trust may not attempt

18  to influence or exercise any control over decisions regarding

19  the management of assets in the qualified blind trust or make

20  any effort to obtain information with respect to the holdings

21  of the trust, including obtaining a copy of any trust tax

22  return filed or any related information.

23         (6)  Except for communications that consist solely of

24  requests for distributions of cash or other unspecified assets

25  of a qualified blind trust, the covered public official or any

26  other person having a beneficial interest in the blind trust

27  may not have any direct or indirect communication with the

28  trustee with respect to the trust unless such communication is

29  in writing and unless it relates to:

30  

31  

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    Florida Senate - 2007                            CS for SB 524
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 1         (a)  A request for a distribution from the trust which

 2  does not specify whether the distribution must be made in cash

 3  or in kind;

 4         (b)  The general financial interests and needs of the

 5  covered public official or other person having a beneficial

 6  interest in the trust, including, but not limited to, an

 7  interest in maximizing income or long-term capital gain;

 8         (c)  Notifying the trustee of a new law or regulation

 9  applicable to the covered public official which prohibits the

10  covered public official from holding a certain asset and which

11  notification directs that the asset not be held by the trust;

12  or

13         (d)  Directing the trustee to sell all of an asset

14  placed in the trust by the covered public official at the time

15  the blind trust was established which, in the determination of

16  the covered public official, creates a conflict of interest or

17  the appearance of a conflict due to the subsequent assumption

18  of duties by the public official.

19         (7)  The covered public official shall report as an

20  asset on his or her financial disclosure statement the

21  interest in the blind trust and its value if value is required

22  to be reported. The covered public official shall also report

23  the blind trust as a primary source of income on his or her

24  financial disclosure statement and the amount if the amount of

25  income is required to be reported. The covered public official

26  shall not be required to report as a secondary source of

27  income on his or her financial disclosure statement any source

28  of income to the blind trust.

29         (8)  A qualified blind trust must be established by the

30  covered public official and meet the following requirements:

31  

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    Florida Senate - 2007                            CS for SB 524
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 1         (a)  The person or entity appointed as the trustee must

 2  not be:

 3         1.  A relative, as defined in s. 112.312(21), of the

 4  covered public official;

 5         2.  A person who is an elected or appointed public

 6  officer or a public employee; or

 7         3.  A person who has been appointed to serve in an

 8  agency by the covered public official or by a public officer

 9  or public employee supervised by the covered public official.

10         (b)  The trust agreement establishing the blind trust

11  must:

12         1.  Contain a clear statement of its purpose, which is

13  to remove from the covered public official control and

14  knowledge of investment of trust assets so that any conflicts

15  between the covered public official's responsibilities as a

16  public official and his or her private interests will be

17  eliminated;

18         2.  Give the trustee complete discretion to manage the

19  trust, including, but not limited to, the power to dispose of

20  and acquire trust assets without consulting or notifying the

21  covered public official or any other person having a

22  beneficial interest in the trust;

23         3.  Prohibit communication between the trustee and the

24  covered public official and any other person having a

25  beneficial interest in the trust concerning the holdings or

26  sources of income of the trust, except for amounts of cash

27  value or net income or loss if such report does not identify

28  any asset or holding except as provided in this section;

29         4.  Provide that the trust tax return must be prepared

30  by the trustee or his or her designee, and that any related

31  information may not be disclosed to the covered public

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    Florida Senate - 2007                            CS for SB 524
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 1  official or to any other beneficiary except as provided in

 2  this section;

 3         5.  Permit the trustee to notify the covered public

 4  official of the date of disposition and value at disposition

 5  of any original investment or interests in real property to

 6  the extent required by federal tax law so that information can

 7  be reported on the covered public official's applicable tax

 8  return;

 9         6.  Prohibit the trustee from disclosing to the covered

10  public official and any other person having a beneficial

11  interest in the trust any information concerning replacement

12  assets to the trust, except for the minimum tax information

13  which is necessary in order for the covered public official

14  and others having a beneficial interest to file their income

15  taxes and which does not describe or identify the individual

16  sources of income;

17         7.  Provide that the trustee may not invest trust

18  assets in business entities that he or she knows are regulated

19  by or do a significant amount of business with the covered

20  public official's public agency; and

21         8.  Provide that the trust is not effective until it is

22  approved by the commission.

23         (c)  The trust must contain only readily marketable

24  assets that are free of any restriction with respect to their

25  transfer or sale.

26         (d)  The trust must be approved by the commission as

27  meeting the requirements of this section.

28         (9)  A copy of the qualified blind trust agreement must

29  be filed with the commission no later than 5 business days

30  after the agreement is executed and must include:

31         (a)  A listing of the assets placed in the trust;

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    Florida Senate - 2007                            CS for SB 524
    582-2132-07




 1         (b)  The date the agreement was executed;

 2         (c)  The name and address of the trustee; and

 3         (d)  A separate statement signed by the trustee, under

 4  penalty of perjury, certifying that he or she will not reveal

 5  any information related to the trust to the covered public

 6  official or any other person having a beneficial interest in

 7  the qualified blind trust other than information that is

 8  authorized under this section, and that, to the best of the

 9  trustee's knowledge, the submitted blind trust agreement

10  complies with this section.

11         (10)  If the qualified blind trust is revoked while the

12  covered public official is serving in a position requiring

13  financial disclosure pursuant to this part, or if the covered

14  public official learns of any replacement assets that have

15  been added to the trust, the covered public official must file

16  an amendment to his or her most recent financial disclosure

17  statement no later than 60 days after the date of revocation

18  or the addition of the replacement assets. The covered public

19  official must disclose the previously unreported pro rata

20  share of the trust's interests in investments or income

21  derived from such investments. For purposes of this section,

22  any replaced asset of which the covered public official learns

23  must be treated as though the asset were an original asset of

24  the trust.

25         Section 2.  A covered public official serving in office

26  on the effective date of this act shall not be subject to the

27  provisions of this act for the remainder of his or her current

28  term of office, unless the covered public official files an

29  irrevocable statement with the commission expressing his or

30  her intent to be subject to the provisions of this act.

31         Section 3.  This act shall take effect July 1, 2007.

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    Florida Senate - 2007                            CS for SB 524
    582-2132-07




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 524

 3                                 

 4  Committee Substitute for Senate Bill 524 requires cabinet
    members, the Governor, and the Lieutenant Governor to place
 5  all personal investments that are in any form of property
    traded on a national or regional exchange into either a
 6  qualified blind trust or a publicly traded mutual fund prior
    to taking office, unless the property is already in a publicly
 7  traded mutual fund. The new language provides for specific
    prohibitions and requirements regarding the acquisition and
 8  management of property publicly traded on a national or
    regional exchange while in office, and provides a specific
 9  procedure that must be followed if the trust is revoked while
    the public official is still in office. The committee
10  substitute requires that the trust meet certain requirements
    in order for the trust to be considered a "qualified blind
11  trust." The committee substitute allows the public official to
    place other forms of property in the blind trust. The new
12  language also provides a safe harbor provision for officials
    who place financial interests into the blind trust. The
13  committee substitute provides an exemption for cabinet
    members, the Governor and the Lieutenant Governor serving in
14  office on the effective date of the bill for the remainder of
    his or her current term of office unless the official files a
15  irrevocable statement with the Ethics Commission indicating
    that he or she wishes to be subject to the provisions of the
16  act.

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