CHAPTER 452

FORMERLY SENATE BILL

NO. 135 AS AMENDED BY HOUSE AMENDMENT NO. 2

AND SENATE AMENDMENT

NO. 1

AN ACT TO AMEND TITLE 11, DELAWARE CODE RELATING TO BRIBERY OF PUBLIC SERVANTS AND POLITICAL PARTY OFFICIALS.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Title 11, Delaware Code, Chapter 3, Subchapter XLI, is amended by adding the following new sections:

§ 744. Definitions

For the purposes of Sections 744-751 herein: "Court" means the Superior Court.

"Public Servant" means any officer (whether executive, judicial, legislative or ministerial, and whether elected or appointed) or employee of the state, or of the state or any board of education, or of any county or municipality of the state, including without in any way limiting the generality of the foregoing, commissioners of a court, justices of the peace, law-enforcement officers, and any person participating as a juror; or any candidate for election to any state, county or local office; but the term does not include witnesses.

"Party official" means (i) a person who holds an office or position in a political party or political party committee, whether by election, appointment or otherwise, by virtue of which he directs or conducts or participates in directing or conducting party affairs at any level of responsibility (including, but not limited to, a treasurer of a political party committee), or (ii) a committee or any member thereof advancing the interests of any political party or candidate for election to any state, county or local public office (including, but not limited to, a financial agent as that term is now

defined in chapter three of this code) or working for or against the approval of a public question by the voters at any election;

"Administrative proceeding" means any adversary proceeding before any public servant, involving the exercise of administrative authority, and said term shall not be construed as including any legislative proceeding;

"Judicial proceeding" means (i) any proceeding before any court or commissioner thereof or justice of the peace, or (ii) any quasijudicial proceeding before a board, commission or public servant, the outcome of which is required to be based on a record or documentation prescribed by law;

"Legislative proceeding" means any proceeding before the General Assembly or either house or any committee thereof;

"Official action" means a decision, award of contract, judgment, opinion, report, recommendation, vote or other exercise of discretion;

"Benefit" means a gain or advantage, or anything regarded or which might reasonably be regarded, by the beneficiary as a gain or advantage, including a gain or advantage to any other person; and "pecuniary benefit" means a benefit in the form of money, tangible or intangible property, commercial interests or anything else the primary significance of which is economic gain; but the terms "benefit" and "pecuniary benefit" shall not be construed so as to include (a) salary, fees and other compensation and expenses paid by the government or political party or political party committee in behalf of which the official action or legal duty is performed, or (b) concurrence in official action in the course of legitimate compromise among public servants, or (c) wages, salary fees or other compensation paid to a public servant when the reason for such payment is not to affect his official impartiality;

"Harm" means loss to a person, physical injury of a person or injury to the property of a person, including loss to, physical injury of or injury to the property of any other person in whose welfare he is interested;

"Disapproval" means failure to approve, or any other manifestation of disfavor or nonacquiescence.

§ 745. Bribery in official and political matters

A person is guilty of bribery under the provisions of this section if he offers, confers or agrees to confer to or upon another, or solicits, accepts or agrees to accept from another, directly or indirectly:

(1) Any pecuniary benefit as consideration for the recipient's official action as a public servant or party official; or

(2) Any benefit as consideration for the recipient's official action as a public servant in an administrative or judicial proceeding; or

(3) Any benefit as consideration for a violation of a legal duty as a public servant or party official.

A person is also guilty of bribery under the provisions of this section if he agrees to render or not to render official action as a public servant or party official as consideration for a pecuniary benefit being offered or conferred to or upon, or as consideration for a promise that a pecuniary benefit shall be offered or conferred to or upon, another person or a party official or a political party.

§ 746. Unlawful rewarding for past behavior

(a) It shall be unlawful for any person to solicit, accept, or agree to accept, directly or indirectly, a pecuniary benefit for:

(1) Having engaged in official action as a public servant; or

(2) Having violated a legal duty as a public servant,

(b) It shall also be unlawful for any person to offer, confer or agree to confer, directly or indirectly, a pecuniary benefit, the receipt of which is prohibited by subsection (a) of this section.

§ 747. Threats in official and political matters

It shall be unlawful for any person to threaten harm to another with intent to influence the official action of a public servant in a pending or prospective administrative or judicial proceeding before such public servant, or with intent to influence a public servant or party official to violate his legal duty as a public servant or party official.

§ 0. Trading in public office

It shall by unlawful for any person to solicit, accept or agree to accept, or agree that any political party or political party committee or other person shall accept, or offer, confer or agree to confer, any pecuniary benefit as consideration for approval or disapproval by a public servant or party official of a person for appointment, employment, advancement or retention as a public servant or for nomination as a candidate for public office.

§ 1. Certain matters not to constitute defense

It shall be no defense to any prosecution under the provisions of Section 745 or Section 747 of this title that a person whom the actor sought to influence or otherwise affect or deal with was not qualified to act in the desired way, whether because he was a candidate for office, or had not yet assumed office or his position of employment, or lacked authority or jurisdiction, or the matter was not yet before him, or for any other reason was not qualified to act in the desired way.

§ 2. Penalties

Anyone who violates any of the provisions of Sections 745-749 of this title shall be fined not more than $5,000 or imprisoned not more than three years, or both.

§ 3. Construction; certain other code provisions not affected

Under no circumstances whatever shall Sections 744-750 be construed as superseding or in any way affecting the provisions of Title 15, Delaware Code, dealing with bribery and other corrupt practices and criminal offenses in connection with elections, election officials, voters or voting in elections.

Section 2. The provisions of this Act shall govern and control as to any offenses committed in violation thereof on and after the effective date of this Act, and the provisions of Title 11, § 105, Delaware Code, shall govern and control as to any offenses committed in violation of said section prior to the effective date of this Act.

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act, and to this end the provisions of this Act are declared to be severable.

Approved June 21, 1972.