SENATE SUBSTITUTE NO. 1
SENATE BILL NO. 198
AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2
kii ACT TO AMEND CHAPTERS 16, 25, AND 58, TITLE 29, DELAWARE CODE AND CHAPTER 417, VOLUME 67, LAWS OF DELAWARE BY ESTABLISHING THE STATE PUBLIC INTEGRITY COMMISSION AND DEFINING ITS AUTHORITY AND RESPONSIBILITIES, AND THE DUTIES OF PERSONS SUBJECT TO ITS AUTHORITY.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. This Act shall be referred to as the "Public Integrity Act of 1994."
Section 2. Amend §5804(2), Title 29, Delaware Code by striking it in its entirety and substituting in lieu thereof a new §5804(2) as follows:
"(2) "Commission" means the State Public Integrity Commission established by this chapter."
Section 3. Amend §5804, Title 29, Delaware Code by adding thereto a new §5804(3) to read as follows and by renumbering the remaining subparagraphs:
"(3) "Commission Counsel" means the legal counsel appointed by the Commission pursuant to this chapter."
Section 4. Amend §5805(d), Title 29, Delaware Code by adding the following words at the end thereof: "Nor shall any former state employee, state officer or honorary state official disclose confidential information gained by reason of his public position nor shall he otherwise use such information for personal gain or benefit."
Section 5. Amend §5806(d), Title 29, Delaware Code by striking the word "subchapter" as it appears in the second sentence and replacing it with the word "chapter".
Section 6. Amend §5807(c), Title 29, Delaware Code by striking the word "subchapter" in the first sentence and replacing it with the word "chapter" and by adding the words "or a public officer as defined in §5812 of this chapter" between the words "state agency" and "," in the same sentence.
Section 7. Amend §5807(d), Title 29, Delaware Code by striking the word "subchapter" in subsection (d)(2) and replacing it with the word "chapter" and by adding a new subsection (d)(4) to read as follows:
"(1) The Commission shall prepare a summary of its advisory opinions for public distribution without disclosing the identity of the applicants."
Section 8. Amend §5808, Title 29, Delaware Code by striking it in its entirety and substituting in lieu thereof the following:
"§ 5808. State Public Integrity Commission; establishment, membership, offices.
"(a) The State Ethics Commission is hereby renamed and reestablished as the State Public Integrity Commission to assume the functions of the State Ethics Commission and to administer and implement this chapter, and to perform such other responsibilities as may be entrusted to it by law.
(b) The Commission shall consist of 7 members appointed by the Governor with the concurrence of the Senate. Not more than 4 members shall be registered with the same political party. No member shall hold any elected or appointed office under the government of the United States or the State or be a candidate for any such office. No member shall hold any political party
office or an office in any political campaign. Members of the Commission may be removed by the Governor, with the concurrence of the Senate, for substantial neglect of duty, gross misconduct in office or violation of this chapter.
(c) A member of the Commission shall be appointed for a term of office of seven years and until his successor has been appointed and has qualified, except that initially the Commission shall consist of the members of the former State Ethics Commission as of the date of its renaming and reestablishment, and said members shall serve the remaining portion of their terms and until their successors have been appointed and have qualified. No member shall serve for more than 1 full 7—year term. When a vacancy occurs in the membership of the Commission, it shall be filled by appointment for the unexpired portion of the term in the same manner as original appointments.
(d) The Commission shall elect a chairperson from among its membership. Four members of the commission shall constitute a quorum and, if a quorum is present, a vacancy on the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission. Disciplinary hearings may be conducted and sanctions may be imposed only by the affirmative action of at least 4 members. Otherwise the Commission may delegate authority to the chairperson to act for the Commission between meetings.
(e) Each member of the Commission shall be compensated at the rate of $100 for each day devoted to the performance of his or her official duties. Each member of the Commission shall be reimbursed for reasonable and necessary expenses incurred in the performance of official duties.
(f) The principal office of the Commission shall be in Dover but it may meet, and exercise its power, at any other place in the State."
Section 9. Amend Subchapter I, Chapter 58, Title 29, Delaware Code by adding new §§5808A and 5808E1 thereto to read as follows:
"§ 5808A. Commission Counsel; powers and duties.
"(a) There shall be a Commission Counsel who shall be the legal
representative of the Commission and have the following powers and duties:
(1) To assist the Commission in preparing and publishing manuals and guides explaining the duties of individuals covered by this chapter and in other activities, such as seminars and workshops, educating
individuals covered by this chapter about its requirements and purposes; and giving instructions and public information materials to facilitate compliance with, and enforcement hereof.
(2) To provide legal counsel to the Commission concerning any matter arising in connection with the exercise of its official powers or duties.
(3) To review information coming to the attention of the Commission relating to potential violations of this chapter.
(1) To investigate information coming to the attention of the Commission that, if true, would constitute a violation of any provision of this chapter and/or to recommend that possible violations of these, or other State and federal laws, be referred by the Commission to the Attorney General or the United States Attorney for investigation and prosecution. Matters may be so referred to the Attorney General or the United States Attorney only upon a determination by at least a majority of the Commission that there are reasonable grounds to believe that a violation may have occurred.
(2) To prosecute disciplinary proceedings, if a determination has been made by at least a majority of the Commission that there are reasonable grounds to believe that a violation may have occurred, before the Commission and to assist the Commission in drafting educational materials, waiver decisions and advisory opinions.
(7) To maintain permanent records of all advisory, waiver, investigatory and prosecutorial matters.
(1) To perform any other tasks requested by the Commission concerning any matter arising in connection with the- exercise of its official powers or duties.
(b) The Commission Counsel may recuse from a matter before the Commission when, in the view of Commission Counsel or of the Commission, such recusal is deemed necessary or appropriate. In situations where Commission Counsel recuses, the duties of the Commission Counsel may be exercised by the Attorney General or by outside counsel chosen by the Commission."
§58088. Commission Counsel's appointment contingent upon appropriations.
The Commission Counsel established by §5808A of this chapter shall not be appointed by the Commission until adequate funds have been appropriated for such purpose. In the absence of such appointment, the Attorney General shall provide legal assistance to the Commission and shall exercise any duties assigned to the Commission Counsel by this chapter. Such duties may also be exercised by outside counsel chosen by the Commission, if adequate funds are appropriated for such purpose."
Section 10. Amend §5809, Title 29, Delaware Code by striking the word "subchapter" wherever it appears in that section and replacing it with the word "chapter".
Section 11. Amend §5809(3), Title 29, Delaware Code by striking it in its entirety and substituting in lieu thereof a new subsection (3) to read as follows:
"(3) To refer to Commission Counsel to investigate any alleged violation of this chapter and, after notice and hearing, to recommend by resolution, such disciplinary action as it may deem appropriate to such appropriate official or agency as the Commission shall determine or to take such other disciplinary action as is authorized by §5810(d) of this chapter or other provisions of this Code. The Commission may also dismiss any complaint that it determines is frivolous or fails to state a violation."
Section 12. Amend §5809(11) and (12), Title 29, Delaware Code by striking them in their entirety and substituting in lieu thereof new subsections (11) and (12) as follows:
"(11) To prepare an annual report by March 1st of each year describing its activities for the previous year and to prepare such other reports and studies as may advance the purposes of this chapter.
(12) To appoint a lawyer admitted to practice in the State to serve as Commission Counsel."
Section 13. Amend § 5809, Title 29, Delaware Code by adding thereto new subsections (14),(15),(16) and (17) to read as follows:
"(14) To contract for any services which cannot satisfactorily be performed by the Commission Counsel or other Commission staff.
(15) Commencing January 15, 1995, to administer and implement the financial disclosure provisions of subchapter II of this chapter and to maintain the records filed pursuant thereto.
(1) Commencing January 15, 1996, to administer and implement the lobbyist registration provisions of this Code and to maintain the records filed pursuant thereto.
(1) To perform such other responsibilities as may be assigned to it by law."
Section 14. Amend the first two sentences of § 5810(a), Title 29, Delaware Code by striking them in their entirety and substituting in lieu thereof the following:
"Upon the sworn complaint of any person or on its own Initiative, the Commission may refer to the Commission Counsel for investigation any alleged violations of this chapter. The Commission Counsel shall be the prosecuting attorney in disciplinary proceedings before the Commission."
Section 15: Amend §§5810(b), (e) and (g), Title 29, Delaware Code by striking the word "subchapter" as it appears in those subsections and replacing it with the word "chapter".
Section 16: Amend §5810(f), Title 29, Delaware Code by deleting the words "Attorney General" and inserting the words "Commission Counsel" in lieu thereof.
Section 17. Amend §58T0(h), Title 29, Delaware Code by striking §§5810(h)(1),(2) and (3) in their entirety and replacing them with a new §5810(h)(1) to read as follows and by renumbering the remaining subparagraphs:
"(1) All proceedings relating to a charged violation of this Chapter shall be maintained confidential by the Commission unless (i) public disclosure is requested in writing by the person charged; or (ii) the Commission determines after a hearing that a violation has occurred."
Section 18. Amend current §5810(h)(4), Title 29, Delaware Code by striking the words "paragraphs (1)-(3)" and replacing them with the words "paragraph (1)" and amend current §§5810(h)(4) and (5) by replacing the word "subchapter" wherever it appears with the word "chapter".
Section 19. Amend §5810A, Title 29, Delaware Code by striking the word "subchapter" as it appears in the first sentence and replacing it with the word "chapter".
Section 20. Amend §5812, Title 29, Delaware Code by adding thereto a new subsection (p) to read as follows:
"(p) "Commission" means the State Public Integrity Commission.
Section 21. Effective January 15, 1995, amend the second sentence of §
5813(a), Title 29, Delaware Code by striking the words "Controller General" and substituting in lieu thereof the word "Commission".
Section 22. Amend §5813(a)(4)e., Title 29, Delaware Code by adding a second sentence to §5813(a)(4)e. to read as follows:
For purposes of compliance with this gift reporting obligation, the recipient may rely in good faith upon the representation of the source of the gift as to the gift's value."
Section 23. Effective January 15, 1995, amend §5813(d), Title 29, Delaware Code by striking it in its entirety and substituting in lieu thereof a new subsection (d) as follows:
"(d) Each report required by this section shall be filed with the Commission."
Section 24. Effective January 15, 1995, amend §5814, Title 29, Delaware Code by striking it in its entirety and substituting In lieu thereof a new section as follows:
"§5814. Retention of Reports.
(a) The Commission shall keep the reports required by this subchapter on file for so long as the person submitting such report is a public officer of this State, as defined in § 5812 of this title, and for at least 5 years thereafter, All reports on file with agencies other than the Commission as of January 15, 1995 shall be transferred to the Commission by April 15, 1995.
(b) The reports filed pursuant to this subchapter shall be made available at reasonable hours for public inspection and copying pursuant to Chapter 100 of this title."
"(c) The Commission may refer to the Commission Counsel for investigation and/or may refer any suspected violation of this subchapter to the Attorney General for investigation and prosecution, provided, however, that the Commission shall refer any suspected violation of this subchapter by a member of the General Assembly or the Judiciary to the Attorney General, who shall have the exclusive authority to investigate and prosecute or otherwise recommend remedies or sanctions for such suspected violation."
Section 26. Amend §5823(b), Title 29, Delaware Code by inserting the words "Public Integrity Commission for investigation pursuant to §5810 of this title and/or to the between the words "the" and "Office" as they appear therein.
Section 27. Amend §5805(a), §5806(d), §§5807(a) and (c) and the first sentence of §5809, Title 29, Delaware Code by striking the phrase "Ethics Commission" whenever it appears in the existing language and substituting in its place the word "Commission".
Section 28. Effective January 15, 1996, amend Title 29, Delaware Code by striking Chapter 16 in its entirety and adding a new subchapter IV to Chapter 58 to read as follows:
"SUBCHAPTER IV. Registration of Lobbyists § 5831. Definitions.
(a) As used in this subchapter, the following terms shall have the meanings indicated:
(1) "Lobbyist" means any individual who acts to promote, advocate, influence or oppose any matter pending before the General Assembly by direct communication with the General Assembly or any matter pending before a state agency by direct communication with that state agency, and who in connection therewith either:
a. Has received or is to receive compensation in whole or in part from any person; or
b. Is authorized to act as a representative of any person who has as a substantial purpose the influencing of legislative or administrative action; or
a. Expends any funds during the calendar year for the type of expenditures listed in subsection (b) of § 5835 of this title.
(2) "Compensation" means any money, thing of value or any other economic benefit of any kind or nature whatsoever conferred on or received by any person in return for services rendered or to be rendered by himself or another.
(3) "Employer" means any person on whose behalf a lobbyist acts.
(4) "Person" means any individual, partnership, corporation, trust, joint venture and any other association of individuals or entities."
(5) "General Assembly" includes any member, committee or subcommittee of either House of the General Assembly.
(6) "State agency" means any office, department, board, commission, committee, school district, board of education and all public bodies existing by virtue of an act of the General Assembly or of the Constitution of the State, excepting only political subdivisions of the State, their agencies and other public agencies not specifically included in this definition that exist by virtue of State law and whose jurisdiction:
a. Is limited to a political subdivision of the State or to a portion thereof; or
b. Extends beyond the boundaries of the State.
(7) "Matter" means any application, petition, request, business dealing, transaction or decision of any sort.
(1) "Commission" means the State Public Integrity Commission.
(1) "State employee" means person who receives compensation as an
employee of a state agency (including the elected or appointed heads of such agencies) or who serves as an appointed member, trustee, director or the like of any state agency.
(b) Subparagraphs a. and b. of paragraph (1) of subsection (a) of this section shall not apply to:
(1) Persons performing professional services in drafting bills or regulations or in advising and rendering opinions to clients as to the construction or effect of proposed, pending or enacted legislation or regulations who do not otherwise act as lobbyists;
(2) Persons appearing pursuant to their official duties as employees or elected officials of the State, or any political subdivision thereof, or of the United States, and not as representatives of any other person; moreover, expenditures listed in §5835 of this Title made by such persons or their employers in connection with these official duties shall not qualify such persons as lobbyists under subparagraph c. of paragraph (1) of subsection (a) of this section.
(1) Persons who, in relation to the duties or interests of their employment or at the request or suggestion of their employer, communicate with the General Assembly or a state agency concerning any legislation, regulation or other matter before the General Assembly or such state agency, if such communication is an isolated, exceptional or infrequent activity in relation to the usual duties of their employment;
(2) Persons communicating with the General Assembly or a state agency if such communication is undertaken by them as a personal expression and not as an agent of their employers as to matters of interest to a person by whom or by which they are employed and if they receive no additional compensation or reward, in money or otherwise, for or as a result of such communication;
(3) Persons testifying at public hearings conducted by the General Assembly or a state agency who do not otherwise act as lobbyists;
(1) Persons appearing on behalf of any religious organization with respect to subjects of legislation or regulation that directly relate
to the religious beliefs and practices of that organization who do not otherwise act as lobbyists;
(1) Attorneys representing clients in administrative adjudications governed by the provisions of subchapter III of Chapter 101 of this title, representing clients before the Tax Appeals Board, or in other administrative procedures where ex parte communications with the state agency with authority over the matter are prohibited;
(2) Attorneys representing clients with regard to criminal or civil law enforcement proceedings, or in any judicial proceedings.
§ 5832 Registration of lobbyists with the State Public Integrity Commission.
(a) Every lobbyist shall register with the Commission in a lobbyist docket and file, at that time, the authorization from his employer as required by §5833 of this title. A person who qualifies as a lobbyist in accordance with §5831(a)(1)a. or b. of this title shall register prior to performing any acts as a lobbyist. A person who qualifies as a lobbyist in accordance with §5831(a)(1)c. of this title must register within 5 days after so qualifying, if not already registered as a lobbyist.
(a) The information recorded in the Commission's lobbyist docket shall include for each separate employer:
(1) The name, residence or business address and occupation of each lobbyist;
(1) The name and business address of the employer of such lobbyist;
(1) The date on which the employment as lobbyist commenced;
(1) The length of time the employment is to continue; and
(2) The subject matter of legislation, regulation or administrative action as to which the employment relates at that time.
(c) Upon any change in the information recorded in the lobbyist docket, the lobbyist shall within 10 business days report such changes to the Commission, which shall record the change in the docket.
The Commission shall promptly furnish copies of each entry in the
lobbyist docket to the Chief Clerk of the House of Representatives, the Secretary of the Senate, the Governor and the head of any state agency upon request of such persons.
§ 5833. Employer's authorization to act.
Every employer of a lobbyist shall furnish to such lobbyist a written and signed authorization to act, which shall be filed with the Commission by the lobbyist at the time of registration or as soon as available and not later than 15 business days after the lobbyist has registered with the Commission. If the employer is a corporation, association or labor union, any authorized officer or agent who is not the lobbyist shall furnish and sign the written authorization. The authorization shall include the full and legal name and business address of both the employer and the lobbyist, the period of time during which the lobbyist is authorized to act and the subject or subjects of legislation, regulation or administrative action upon which the employer is represented.
§ 5834. Compensation of lobbyist not to be substantially dependent on outcome of legislative or administrative action.
No person shall employ a lobbyist nor shall any person be employed as a lobbyist pursuant to any compensation agreement that permits more than half of the compensation to be paid to such a lobbyist to be dependent upon the outcome of any legislative or administrative action.
§ 5835. Reports by lobbyists.
(a) On or before the twentieth day of the month following each calendar quarter, each lobbyist shall file a written report covering the immediately preceding calendar quarter and containing the information required by this subchapter.
(b) A lobbyist shall file separate reports for each employer which he or she represents. Each report shall contain the total expenditures during the
reporting period for all direct expenditures, costs or values, whichever is greater, provided for members of the General Assembly or for employees or members of any state agency for the following:
(1) Food and refreshment;
(2) Entertainment, including the cost of maintaining a hospitality room;
(3) Lodging expenses away from home;
(4) Fair value of travel if the trip exceeds 100 miles;
(5) Recreation expenses; and
(1) Gifts or contributions, excluding political contributions as defined in Chapter 80 of Title 15 provided to members of the General Assembly.
(c) The information shall be reported on a form which shall be available from the Commission and shall show the total expenditures for the reporting period and shall also list the recipient any time the expenditures exceed $50 per diem. The lobbyist shall also affirm that he or she has provided the recipient of any gift in excess of $50 with a representation as to the value of the gift. The records shall be retained for a period of 4 years from the date of filing.
§ 5836. When registration, report or authorization is considered as filed;
access to records.
(a) Any registration, report or authorization form shall be considered filed as of the date it is physically filed with the Commission or is mailed if sent by registered or certified mail.
(b) The lobbyist docket maintained by the Commission and any reports, authorizations or other documents filed with the Commission pursuant to this subchapter shall be made available at reasonable hours for public inspection and copying pursuant to Chapter 100 of this title.
§ 5837. Violation and penalties.
(a) Any person who knowingly fails to register as a lobbyist as required by this subchapter shall be guilty of a misdemeanor.
(a) Any person who knowingly furnishes false information in any registration, authorization or report required by this subchapter shall be guilty of a misdemeanor.
(b) Any person who falls to file an authorization or report as required by this subchapter shall be deemed to have voluntarily cancelled his or her registration as a lobbyist and shall be prohibited from reregistering or acting as a lobbyist until all delinquent authorizations and/or reports have been filed.
(c) The Commission may refer to the Commission Counsel for investigation and/or refer any suspected violation of this subchapter to the Attorney General for investigation and prosecution. The Speaker of the House, the presiding officer of the Senate, the Legislative Council or any member of the General Assembly shall refer, or any other person may refer, any suspected violation of this subchapter to the Commission and/or the Attorney General of the State.
(d) The Superior Court shall have exclusive jurisdiction over all offenses under this subchapter."
Section 29. Amend §2515, Chapter 25, Title 29, Delaware Code by designating the present section as subsection (a) and by adding subsection (b) thereof:
"(b) Notwithstanding §2507 of this title, the provisions of this chapter relating to the supplying of legal advice, counsel, services and representation in proceedings shall not apply to the State Public Integrity Commission established pursuant to chapter 58 of this title."
Section 30. Amend §1605(c), Chapter 16, Title 29, Delaware Code by adding a new sentence after the first sentence of §1605(c) to read as follows:
"The legislative agent shall also affirm that he or she has provided the recipient of any gift in excess of $50 with a representation as to the value of the gift."
Section 31. The legislative agent reports on file with the Legislative
Council as of January 15, 1996 shall be transferred to the Public Integrity Commission by April 15, 1996.
Section,32. This Act shall take effect July 15, 1994, except as to those
sections where another effective date is expressly indicated.
Approved July 26, 1994