Florida Senate - 2011 COMMITTEE AMENDMENT
Bill No. SB 86
Barcode 784618
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/30/2011 .
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The Committee on Governmental Oversight and Accountability
(Fasano) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 31 and 32
4 insert:
5 Section 2. Section 112.3142, Florida Statutes, is created
6 to read:
7 112.3142 Qualified blind trusts.—
8 (1) The Legislature finds that if a public official creates
9 a trust, and if the public official does not know the identity
10 of the financial interests held by the trust and does not
11 control the interests held by the trust, his or her official
12 actions would not be influenced or appear to be influenced by
13 private considerations. Thus, it is the intent of the
14 Legislature that the public policy goal of the state, which is
15 to be achieved through reliance on a blind trust, be an actual
16 “blindness” or lack of knowledge or control by the official with
17 respect to the interests held in trust.
18 (2) As used in this section, the term:
19 (a) “Cabinet” has the same meaning as in s. 20.03.
20 (b) “Commission” means the Commission on Ethics.
21 (c) “Covered public official” means the Governor, the
22 Lieutenant Governor, or a member of the Cabinet.
23 (3) If a covered public official holds an economic interest
24 in a qualified blind trust as defined in this section, he or she
25 does not have a conflict of interest prohibited under s.
26 112.313(3) or (7) or a voting conflict of interest under s.
27 112.3143 with regard to matters pertaining to that economic
28 interest.
29 (4) Except as otherwise provided in this section, the
30 covered public official may not attempt to influence or exercise
31 any control over decisions regarding the management of assets in
32 a qualified blind trust. The covered public official and each
33 person having a beneficial interest in the qualified blind trust
34 may not make any effort to obtain information with respect to
35 the holdings of the trust, including obtaining a copy of any
36 trust tax return filed or any information relating thereto,
37 except as otherwise provided in this section.
38 (5) Except for communications that consist solely of
39 requests for distributions of cash or other unspecified assets
40 of the trust, there shall be no direct or indirect communication
41 with respect to the trust between the covered public official or
42 any person having a beneficial interest in the qualified blind
43 trust and the trustee, unless such communication is in writing
44 and unless it relates only to:
45 (a) A request for a distribution from the trust which does
46 not specify whether the distribution is to be made in cash or in
47 kind;
48 (b) The general financial interests and needs of the
49 covered public official or interested person, including, but not
50 limited to, an interest in maximizing income or long-term
51 capital gain;
52 (c) The notification of the trustee of a law or regulation
53 subsequently applicable to the covered public official which
54 prohibits the covered official from holding an asset and which
55 notification directs that the asset not be held by the trust; or
56 (d) Directions to the trustee to sell all of an asset
57 initially placed in the trust by the covered public official
58 which, in the determination of the covered public official,
59 creates a conflict of interest or the appearance thereof due to
60 the subsequent assumption of duties by the public official.
61 (6) The covered public official shall report as an asset on
62 his or her financial disclosure forms the beneficial interest in
63 the qualified blind trust and its value, if the value is
64 required to be disclosed. The covered public official shall
65 report the blind trust as a primary source of income on his or
66 her financial disclosure forms and its amount, if the amount of
67 income is required to be disclosed. The covered public official
68 is not required to report as a secondary source of income any
69 source of income to the blind trust.
70 (7) In order to constitute a qualified blind trust, the
71 trust must be established by the covered public official and
72 meet the following requirements:
73 (a) The person or entity appointed as a trustee must not
74 be:
75 1. The covered public official’s spouse, child, parent,
76 grandparent, grandchild, brother, sister, parent-in-law,
77 brother-in-law, sister-in-law, aunt, uncle, or first cousin, or
78 the spouse of any such person;
79 2. A person who is an elected or appointed public officer
80 or a public employee; or
81 3. A person who has been appointed to serve in an agency by
82 the covered public official or by a public officer or public
83 employee supervised by the covered public official.
84 (b) The trust agreement that establishes the trust must:
85 1. Contain a clear statement of its purpose, namely, to
86 remove from the grantor control and knowledge of investment of
87 trust assets so that conflicts between the grantor’s
88 responsibilities as a public official and his or her private
89 interests will be eliminated;
90 2. Give the trustee complete discretion to manage the
91 trust, including, but not limited to, the power to dispose of
92 and acquire trust assets without consulting or notifying the
93 covered public official or any person having a beneficial
94 interest in the trust;
95 3. Prohibit communication between the trustee and the
96 covered public official and any person having a beneficial
97 interest in the trust concerning the holdings or sources of
98 income of the trust, except amounts of cash value or net income
99 or loss, provided that such report may not identify any asset or
100 holding, and except as provided in this section;
101 4. Provide that the trust tax return is prepared by the
102 trustee or his or her designee and that any information relating
103 thereto is not disclosed to the covered public official or to
104 any other beneficiary, except as provided in this section;
105 5. Permit the trustee to notify the covered public official
106 of the date of disposition and value at disposition of any
107 original investment or interests in real property to the extent
108 required by federal tax law, so that the information can be
109 reported on the covered public official’s applicable tax
110 returns;
111 6. Prohibit the trustee from disclosing to the covered
112 public official and any person having a beneficial interest in
113 the trust any information concerning replacement assets to the
114 trust, except for the minimum tax information that lists only
115 the totals of taxable items from the trust and does not describe
116 the source of individual items of income;
117 7. Prohibit the trustee from investing trust assets in
118 business entities that he or she knows are regulated by or do a
119 significant amount of business with the covered public
120 official’s public agency; and
121 8. Provide that the trust is not effective until it is
122 approved by the commission.
123 (c) The obligations of the trustee and the official under
124 the trust agreement must be observed by them.
125 (d) The trust shall contain only readily marketable assets.
126 (e) The trust must be approved by the commission as meeting
127 the requirements of this section.
128 (8) A copy of the trust agreement must be filed with the
129 commission within 5 business days after the agreement is
130 executed and must include:
131 (a) A listing of the assets placed in the trust;
132 (b) A statement detailing the date the agreement was
133 executed;
134 (c) The name and address of the trustee; and
135 (d) A separate statement signed by the trustee, under
136 penalty of perjury, certifying that he or she will not reveal
137 any information to the covered public official or any person
138 having a beneficial interest in the qualified blind trust,
139 except for information that is authorized under this section,
140 and that, to the best of the trustee’s knowledge, the submitted
141 blind trust agreement complies with this section.
142 (9) If the trust is revoked while the covered public
143 official is a public officer, or if the covered public official
144 learns of any replacement assets that have been added to the
145 trust, the covered public official must file an amendment to his
146 or her most recent financial disclosure statement. The amendment
147 must be filed no later than 60 days after the date of revocation
148 or the addition of the replacement assets. The covered public
149 official must disclose the previously unreported pro rata share
150 of the trust’s interests in investments or income deriving from
151 any such investments. For purposes of this section, any replaced
152 asset of which the covered public official learns shall
153 thereafter be treated as though the asset were an original asset
154 of the trust.
155
156 ================= T I T L E A M E N D M E N T ================
157 And the title is amended as follows:
158 Delete line 3
159 and insert:
160 title; creating s. 112.3142, F.S., pertaining to
161 qualified blind trusts; providing legislative findings
162 and intent relating to qualified blind trusts;
163 defining terms; providing that if a covered public
164 official holds an economic interest in a qualified
165 blind trust, he or she does not have a conflict of
166 interest that would otherwise be prohibited by law;
167 prohibiting a covered public official from attempting
168 to influence or exercise any control over decisions
169 regarding the management of assets in a qualified
170 blind trust; prohibiting direct or indirect
171 communication between the covered public official or
172 any person having a beneficial interest in the
173 qualified blind trust and the trustee; providing
174 exemptions; requiring a covered public official to
175 report as an asset on his or her financial disclosure
176 forms the beneficial interest, and its value if
177 required, which he or she has in a qualified blind
178 trust; specifying the required elements necessary to
179 establish a qualified blind trust; specifying the
180 required elements necessary to be a trustee;
181 specifying the required elements in the trust
182 agreement; providing that the trust is not effective
183 unless it is approved by the Commission on Ethics;
184 requiring that the trustee and the official observe
185 the obligations of the trust agreement; providing that
186 the trust contains only readily marketable assets;
187 requiring that the trust agreement be filed with the
188 commission within a specified time; providing for the
189 filing of an amendment to a financial disclosure
190 statement of a covered public official in specified
191 circumstances; amending s. 112.3143, F.S.; providing
192 an