CHAPTER 110

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 83

AS AMENDED BY HOUSE AMENDMENT NOS. 1, 3, 4, 8, 9, 11, 14, 15 AND 16

AND SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLES 11 AND 29 OF THE DELAWARE CODE TO REQUIRE FINANCIAL DISCLOSURE FOR CERTAIN STATE OFFICIALS AND EMPLOYEES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 29 of the Delaware Code, by adding thereto a new Chapter to be designated as Chapter 58 B to read as follows:

"CHAPTER 58 B. FINANCIAL DISCLOSURE BY STATE OFFICIALS AND EMPLOYEES

§5860. Findings

The General Assembly finds and declares that

(1) In our democratic form of government, persons serving in state government hold positions of public trust which require rigorous adherence to the highest standards of honesty, integrity, and impartiality.

(2) In order to insure propriety and preserve public trust, a public official or employee should refrain from acting in his official capacity on any matter wherein he has a direct or indirect personal financial interest that might reasonably be expected to impair his objectivity or independence of judgment, and should avoid even the appearance of impropriety.

(3) A disclosure of the personal financial interests of public officials will serve to guard against conduct violative of this public trust and to restore the public's faith and confidence in representatives of its government.

§5861. Definitions

(1) 'Public Officer' shall mean:

(a) any person elected to any State office; and

(b) any person appointed to fill a vacancy in an elective State office; and

(c) any candidate who has filed for any State office; and

(d) the Research Director and Controller General of the Legislative Council; and

(e) the Chief Justice and Associate Justices of the Supreme Court; and

(f) the Chancellors and Vice-Chancellors of the Court of Chancery; and

(g) the President Judge and Associate Judges of Superior Court; and

(h) the Chief Judge and Associate Judges of Family Court; and (I) the Chief Judge and Resident Judges of the Court of Common Pleas; and

(j) the Chief Judge and Associate Judges of Municipal Court; and

(k) the Chief Magistrate and Justices of the Peace; and

(1) the Director of Administrative Office of the Courts and the administrators of Superior Court, Family Court, the Court of Common Pleas, and the Justice of the Peace Courts; and

(m) the Public Guardian, the Executive Secretary of the Violent Crimes Compensation Board, the Administrative Coordinator of the Foster Care Review Board; and all Cabinet Secretaries and persons of equivalent rank within the Executive Branch; and

(n) all Division Directors and persons of equivalent rank within the Executive Branch; and

(o) the State Election Commissioner and the Administrative Directors and Assistant Administrative Directors of the Department of Elections; and

(p) the State Fire Marshall and the Director of the State Fire School; and

(q) the Adjutant General of the Delaware National Guard.

Elected and appointed officials of political subdivisions of the State, public school districts of the State, and State institutions of higher learning shall not be deemed to be public officers within the meaning of this Act.

(2) 'Constructively controlled' means:

(a) a financial interest in the name of another which is controlled by a public officer by virtue of any relationship of the public officer to another person and which directly benefits the public officer;

(b) any financial interest of a public officer held jointly with the spouse or child of such public officer;

(c) any financial interest of the spouse or minor child of a public officer.

(3) 'Instrument of ownership' includes, but is not limited to, common or preferred stock, rights, warrants, articles of partnership, proprietary interest, deeds, and debt instruments, if convertible to equity instruments.

(4) Position of management' means officer, director, partner, proprietor, or other managerial position in a business enterprise.

(5) 'Fair Market Value' means, if a security, the quoted price as of September I of the year in which the report required by 55862 of this Chapter is filed, or, if not a security, the price at which the public officer would sell as of September I of the year in which the report required by 55862 of this Chapter is filed.

(6) 'Equity instrument' means any ownership interest in a corporation or other legal entity giving rights to the holder upon liquidation of the entity.

(7) Time or demand deposits' means checking and savings account In banks or deposits or share In savings and loan institutions, credit unions, or money market funds.

(8) 'Debt instrument' means bonds, notes, debentures, mortgages, or other securities having a fixed yield if not convertible to equity instruments.

(9) 'Professional organization' means an individual engaged in, or an association organized pursuant to, federal or state law for the practice of medicine, law, accounting, engineering, or other profession.

(10) 'Income for services rendered' means income from a single source and includes salary, wages, consulting fees and professional services.

(11) 'Capital gain' means capital gains required to be reported to the Internal Revenue Service pursuant to federal internal revenue laws.

(12) 'Reimbursement for expenditures' means any payments to a public officer for expenses incurred by that public officer.

(13) 'Honoraria' means fees received for speeches, written articles, and participation in discussion groups and similar ectivites, but does not include reimbursement for expenses.

(14) 'Business enterprise' means corporation, partnership, sole proprietorship, or any other individual or organization carrying on a business or profession.

§5862. Report Disclosing Financial Information

(1) Every public officer as defined In 55861 of this Chapter shall file a report disclosing financial interests, as hereinafter provided. Each report shall be on a form prescribed by the Controller General, shall be signed by the public officer, shall be notarized, and shall include at Mast the following information:

(a) The name and position of the public officer; and

(b) The name, instrument and nature of ownership, and any position of management held by, or constructively controlled by, the public officer In any business enterprise in whch legal or equitable ownership is in excess of $5,000 fair market value or from which income of more than $5,000 was either derived during the preceding calendar year or might reasonably be expected to be derived during the current calendar year. Time or demand deposits in a financial institution, or any debt instrument having a fixed yield shall not be listed unless convertible to an equity instrument; and

(c) The name, address, and type of practice, without reference to the identity of any individual clients served, of any professional organization in which the public officer is the sole practitioner, officer, director, or partner, or serves in any advisory capacity, or which is constructively controlled by the public officer, from which income of more than $5,000 was either derived during the preceding year or might reasonably be expected to be derived during the current calendar year; provided, however, that any such organization construed as a business enterprise and reported pursuant to the provsiions of subsection Cl) (b) of this Section need not be reported under this subsection; and

(d) The source of each of the following items received during the preceding calendar year, or reasonably expected to be received during the current calendar year:

(I) Any income derived for services rendered exceeding $1,000 from a single source, unless such income is otherwise identified pursuant to subsection (1)(b) or (1)(c) of this section; or

(II) Any capital gain exceeding $1,000 from a single source other than from the sale of a residence occupied by the public officer; or

(III) Any reimbursement for expenditures exceeding $1,000 from a single source; or. (iv) Any honoraria.

(e) Each creditor to whom the public officer was indebted for a period of ninety consecutive days or more during the preceding calendar year in an aggregare amount In excess of $1,000.

(2) Each report required by this Section shall contain a sworn certification by the public officer that he has read the report, and that to the best of his knowledge and belief it Is true, correct, and complete, and that he has not and will not transfer any assets, interests, or property for the purpose of concealing it from disclosure while retaining an equitable interest therein.

(3) Not later than 14 days after becoming a public officer as defined in §5861, the report required by this Chapter shall be filed. Thereafter, the report shall be filed on February 15 of each year.

(4) Public officers as defined in §5861 (1Xa) through (d) shall file their reports with the Controller General. Public officers as defined in 55861 (1)(e) through (m) shall file their reports with the Clerk of the Supreme Court. Public officers as defined in §5861 (IXn) through (s) shall file their reports with the Secretary of State.

§5863. Retention of Reports

(l) Each person responsible for receiving the reports required by this Chapter shall keep the reports on file for so long as the person submitting such report Is a public officer of this State, as defined in S586I of this Chapter, and for at least five years thereafter.

(2) The reports filed pursuant to this Chapter shall be made available at reasonable hours for public inspection pursuant to the provisions of 29 Delaware Code, 510001 et seq.

§5864. Violations; Penalties; Jurisdiction In Superior Court

Cl) Any public officer who willfully fails to file a report in violation of §5862 of this Chapter shall be guilty of a Class!) misdemeanor.

(2) Any public officer who knowingly files any report required by 55862 of this Chapter that is false in any material respect shall be guilty of a Class A misdemeanor.

(3) The Attorney General shall have the power to investigate and enforce violations of the provisions of this Chapter.

(4) Superior Court shall have Jurisdiction over all offenses under this Chapter.

§5865. Protection of Confidentiality

Nothing contained in this Chapter shall be construed as requiring the disclosure of any fact the confidentiality of which is protected by any applicable federal or state law.

§5866. Severability

If any provision of this Chapter or the application of any provision of this Chapter to any person or circumstances is held invalid, the application of such provision to other persons or circumstances and the remainder of this Chapter shall not be affected thereby."

Section 2. Amend Section 8706, Chapter 8?, Part V, Title 11 of the Delaware Code, by striking said section in its entirety.

Section 3. This Act shall become effective February 1, 1984.

Approved July 8, 1983.