Florida Senate - 2011 COMMITTEE AMENDMENT Bill No. SB 86 Barcode 784618 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/30/2011 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— 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