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S.B. 246
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GOVERNMENT LAW CHANGES
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2007 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Sheldon L. Killpack
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House Sponsor:
____________
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LONG TITLE
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General Description:
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This bill modifies provisions in the Lobbyist Disclosure and Regulation Act, the Utah
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Public Officers' and Employees' Ethics Act, and the campaign finance requirements of
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the Election Code.
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Highlighted Provisions:
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This bill:
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. requires that officeholders file annual campaign finance summary reports;
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. provides and modifies definitions;
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. removes reporting exemptions from certain travel, lodging, and meal expense
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reimbursements;
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. clarifies disclosure requirements for public officials, elected officials of local
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governments, and certain state employees under the Lobbyist Disclosure and
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Regulation Act;
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. requires that financial expenditure reports be filed on a quarterly schedule;
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. requires that lobbyists file quarterly expense reports even when no expenses have
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been made;
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. requires that lobbyists and principals be subject to reporting requirements until they
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cease lobbying;
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. requires that certain details be reported on gifts of tangible property valued at over
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$5;
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. establishes conflict of interest standards for lobbyists;
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. modifies a provision in the Public Officers' and Employees' Ethics Act; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill coordinates with H.B. 62, Lobbyist Disclosure Technical Amendments, by
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providing superseding amendments.
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Utah Code Sections Affected:
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AMENDS:
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20A-11-401, as last amended by Chapter 355, Laws of Utah 1997
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36-11-102, as last amended by Chapter 13, Laws of Utah 1998
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36-11-201, as last amended by Chapter 27, Laws of Utah 2003
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67-16-5, as last amended by Chapter 25, Laws of Utah 2005
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ENACTS:
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36-11-306, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
20A-11-401
is amended to read:
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20A-11-401. Officeholder financial reporting requirements -- Year-end summary
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report.
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(1) (a) Each officeholder shall file a summary report by January 5 of [the year after the
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regular general election] each year.
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(b) An officeholder that is required to file a summary report both as an officeholder and
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as a candidate for office under the requirements of this chapter may file a single summary
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report as a candidate and an officeholder, provided that the combined report meets the
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requirements of:
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(i) this section; and
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(ii) the section that provides the requirements for the summary report that must be filed
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by the officeholder in the officeholder's capacity of a candidate for office.
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(2) (a) Each summary report shall include the following information as of December 31
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of the last [regular general election] year:
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(i) the net balance of the last summary report, if any;
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(ii) a single figure equal to the total amount of receipts received since the last summary
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report, if any;
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(iii) a single figure equal to the total amount of expenditures made since the last
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summary report, if any;
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[(ii)] (iv) a detailed listing of each contribution and public service assistance received
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since the last summary report;
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[(iii)] (v) for each nonmonetary contribution, the fair market value of the contribution;
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[(iv)] (vi) a detailed listing of each expenditure made since the last summary report;
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[(v)] (vii) for each nonmonetary expenditure, the fair market value of the expenditure;
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and
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[(vi)] (viii) a net balance for the year consisting of the net balance from the last
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summary report plus all receipts minus all expenditures.
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(b) (i) For all individual contributions or public service assistance of $50 or less, a
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single aggregate figure may be reported without separate detailed listings.
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(ii) Two or more contributions from the same source that have an aggregate total of
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more than $50 may not be reported in the aggregate, but shall be reported separately.
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(c) In preparing the report, all receipts and expenditures shall be reported as of
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December 31 of the last [regular general election] calendar year.
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(3) The summary report shall contain a paragraph signed by the officeholder certifying
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that, to the best of the officeholder's knowledge, all receipts and all expenditures have been
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reported as of December 31 of the last [regular general election] calendar year and that there
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are no bills or obligations outstanding and unpaid except as set forth in that report.
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Section 2.
Section
36-11-102
is amended to read:
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36-11-102. Definitions.
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As used in this chapter:
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(1) "Aggregate daily expenditures" means the total expenditures made within a 24-hour
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period.
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(2) "Executive action" means:
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(a) nominations and appointments by the governor;
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(b) the proposal, drafting, amendment, enactment, or defeat by a state agency of any
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rule made in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act; and
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(c) agency ratemaking proceedings.
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(3) (a) "Expenditure" means any of the items listed in this Subsection when given to or
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for the benefit of a public official or [his] the public official's immediate family:
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(i) a purchase, payment, distribution, loan, gift, advance, deposit, subscription,
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forbearance, services, or goods, unless consideration of equal or greater value is received; and
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(ii) a contract, promise, or agreement, whether or not legally enforceable, to provide
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any of the items listed in Subsection (3)(a)(i).
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(b) "Expenditure" does not mean:
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(i) a commercially reasonable loan made in the ordinary course of business;
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(ii) a campaign contribution reported in accordance with Title 20A, Chapter 11,
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[Corrupt Practices in Elections] Campaign and Financial Reporting Requirements;
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(iii) printed informational material that is related to the performance of the recipient's
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official duties;
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(iv) a devise or inheritance;
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(v) any item listed in Subsection (3)(a) if given by a relative;
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(vi) a modest item of food or refreshment such as a beverage or pastry offered other
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than as part of a meal, the value of which does not exceed $5;
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(vii) a greeting card or other item of little intrinsic value that is intended solely for
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presentation; or
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(viii) plaques, commendations, or awards[; or] presented in public and having a cash
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value not exceeding $50.
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[(ix) reimbursement of reasonable expenses for or providing travel, lodging, or meals
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to a public official when:]
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[(A) those expenses are directly related to the public official's attendance and
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participation in a regularly scheduled meeting of an organization, association, or group; and]
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[(B) that organization, association, or group pays or provides those expenses.]
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(4) (a) "Government officer" means:
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(i) an individual elected to a position in state or local government, when acting within
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his official capacity; or
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(ii) an individual appointed to or employed in a full-time position by state or local
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government, when acting within the scope of his employment.
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(b) "Government officer" does not mean a member of the legislative branch of state
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government.
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(5) "Immediate family" means a spouse, a child residing in the household, or an
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individual claimed as a dependent for tax purposes.
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(6) "Interested person" means an individual defined in Subsections (9)(b)(ii) and
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[(viii)] (vii).
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(7) "Legislative action" means:
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(a) bills, resolutions, amendments, nominations, and other matters pending or proposed
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in either house of the Legislature or its committees or requested by a legislator; and
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(b) the action of the governor in approving or vetoing legislation.
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(8) "Lobbying" means communicating with a public official for the purpose of
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influencing the passage, defeat, amendment, or postponement of legislative or executive action.
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(9) (a) "Lobbyist" means:
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(i) an individual who is employed by a principal; or
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(ii) an individual who contracts for economic consideration, other than reimbursement
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for reasonable travel expenses, with a principal to lobby a public official.
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(b) "Lobbyist" does not include:
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[(i) a public official while acting in his official capacity on matters pertaining to his
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office or a state employee while acting within the scope of his employment;]
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(i) a member or employee of the legislative branch of government;
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(ii) any person appearing at, or providing written comments to, a hearing conducted in
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accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act or Title 63,
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Chapter 46b, Administrative Procedures Act;
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(iii) any person participating on or appearing before an advisory or study task force,
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commission, board, or committee, constituted by the Legislature or any agency or department
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of state government, except legislative standing, appropriation, or interim committees;
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(iv) a representative of a political party;
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(v) an individual representing a bona fide church solely for the purpose of protecting
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the right to practice the religious doctrines of the church unless the individual or church makes
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an expenditure that confers a benefit on a public official;
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(vi) a newspaper, television station or network, radio station or network, periodical of
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general circulation, or book publisher for the purpose of publishing news items, editorials,
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other comments, or paid advertisements that directly or indirectly urge legislative or executive
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action; or
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[(vii) an elected official of a local government while acting within the scope of his
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official capacity on matters pertaining to his office or an employee of a local government while
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acting within the scope of his employment; or]
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[(viii)] (vii) an individual who appears on his own behalf before a committee of the
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Legislature or an executive branch agency solely for the purpose of testifying in support of or
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in opposition to legislative or executive action.
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(10) "Person" includes individuals, bodies politic and corporate, partnerships,
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associations, and companies.
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(11) "Principal" means a person who employs [a lobbyist] an individual to perform
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lobbying either as an employee or as an independent contractor.
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(12) "Public official" means:
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(a) a member of the Legislature;
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(b) an individual elected to a position in the executive branch; or
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(c) an individual appointed to or employed in the executive or legislative branch if that
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individual:
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(i) occupies a policymaking position or makes purchasing or contracting decisions;
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(ii) drafts legislation or makes rules;
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(iii) determines rates or fees; or
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(iv) makes adjudicative decisions.
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(13) "Quarterly reporting period" means the three-month period covered by each
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financial report required under Subsection
36-11-201
(2)(a)(i).
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[(13)] (14) "Related person" means any person, or agent or employee of a person, who
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knowingly and intentionally assists a lobbyist, principal, or government officer in lobbying.
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[(14)] (15) "Relative" means a spouse, child, parent, grandparent, grandchild, brother,
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sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, first cousin, or
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spouse of any of these individuals.
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(16) (a) "Tangible personal property" means an item having a description that is
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consistent with the meaning of tangible personal property found in the Utah Constitution
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Article XIII.
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(b) "Tangible personal property" does not include the admission price for events,
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meals, recreation, outings, or functions.
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Section 3.
Section
36-11-201
is amended to read:
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36-11-201. Lobbyist, principal, and government officer financial reporting
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requirements -- Prohibition for related person to make expenditures.
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(1) As used in this section, "public official type" means a notation to identify whether
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the public official is:
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(a) a member of the Legislature;
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(b) an individual elected to a position in the executive branch;
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(c) an individual appointed to or employed in a position in the legislative branch who
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meets the definition of public official in Section
36-11-102
; or
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(d) an individual appointed to or employed in a position in the executive branch who
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meets the definition of public official in Section
36-11-102
.
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(2) (a) (i) Each lobbyist, principal, and government officer that makes an expenditure,
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as defined by Section
36-11-102
, during any of the following quarterly reporting periods shall
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file [an annual] a quarterly financial report with the lieutenant governor on [January 10 of each
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year or] the following dates:
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(A) April 10, for the period of January 1 through March 31;
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(B) July 10, for the period of April 1 through June 30;
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(C) October 10, for the period of July 1 through September 30; and
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(D) January 10, for the period of October 1 through December 31 of the previous year.
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(ii) If the due date for a financial report falls on a Saturday, Sunday, or legal holiday,
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the report shall be considered to be due on the next succeeding business day [if January 10 falls
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on a Saturday, Sunday, or legal holiday].
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(iii) The report shall be considered timely filed if postmarked on its due date.
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[(ii)] (iv) The report shall disclose expenditures made to benefit public officials or
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members of their immediate families as provided in this section.
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[(iii) If] (v) (A) Notwithstanding Subsection (2)(a)(i), a lobbyist shall file a quarterly
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financial report whether or not the lobbyist has made [no expenditures since the last
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expenditure reported on the last report filed,] an expenditure during the quarterly reporting
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period.
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(B) If the lobbyist has made no expenditures during the quarterly reporting period, the
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lobbyist shall file a quarterly financial report listing the amount of expenditures as "none."
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(C) The report shall be filed in accordance with the dates specified under Subsections
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(2)(a)(i) and (ii).
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(b) The [January 10] quarterly financial report shall contain:
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(i) (A) the total amount of expenditures made to benefit public officials during the last
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[calendar year] quarterly reporting period; and
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(B) the total amount of expenditures made to benefit public officials by public official
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type during the last [calendar year] quarterly reporting period;
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(ii) (A) the total travel expenditures that the lobbyist, principal, or government officer
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made to benefit public officials and their immediate families during the [last calendar year;
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and] quarterly reporting period;
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(B) the total travel expenditures that the lobbyist, principal, or government officer
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made to benefit public officials and their immediate families, by public official type, during the
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last [calendar year] quarterly reporting period; and
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(C) a travel expenditure statement for the last quarterly reporting period that:
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(I) describes the destination of each trip and its purpose;
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(II) identifies the total amount of expenditures made to benefit each public official and
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members of the public official's immediate family for each trip;
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(III) names all individuals that took each trip;
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(IV) identifies the public official type to which each public official belongs;
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(V) provides the name and address of the organization that sponsored each trip; and
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(VI) identifies specific expenditures for food, lodging, gifts, and sidetrips;
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(iii) except as specified under Subsection (2)(b)(iv) regarding an expenditure that
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consists of tangible personal property, for each aggregate daily [expenditures] expenditure
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made during the quarterly reporting period to benefit a public [officials or members of their]
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official or a member of the public official's immediate [families] family that [are] is not
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otherwise reportable under Subsection (2)(b)(ii):
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(A) when the amount does not exceed $50 per person:
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(I) the date of the expenditure;
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(II) the purpose of the expenditure;
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(III) the public official type to which each public official belongs; and
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(IV) the total monetary worth of the benefit conferred on the public officials or
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members of their immediate families; and
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(B) when the amount exceeds $50 per person:
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(I) the date, location, and purpose of the event, activity, or expenditure;
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(II) the name of the public official or member of the public official's immediate family
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who attended the event or activity or received the benefit of the expenditure;
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(III) the public official type to which each public official belongs; and
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(IV) the total monetary worth of the benefit conferred on the public official or member
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of the public official's immediate family by the lobbyist, principal, or government officer filing
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the financial report;
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(iv) for each aggregate daily expenditure that consists of tangible personal property and
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that is made during the quarterly reporting period to benefit a public official or a member of a
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public official's immediate family:
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(A) when the amount or value exceeds $5 per person, but does not exceed $50 per
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person:
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(I) the date, location, and purpose of the expenditure;
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(II) the name of the public official or member of the public official's immediate family
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who received the benefit of the expenditure;
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(III) the public official type to which each public official belongs; and
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(IV) the total monetary worth of the benefit conferred on the public official or member
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of the public official's immediate family; and
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(B) when the amount or value exceeds $50 per person:
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(I) the information required by Subsection (2)(b)(iv)(A); and
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(II) a statement explaining why the expenditure does not violate the restrictions of
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Section
36-11-304
;
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[(iv)] (v) a list of each public official who was employed by the lobbyist, principal, or
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government officer or who performed work as an independent contractor for the lobbyist,
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principal, or government officer during the last year that details the nature of the employment
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or contract;
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[(v)] (vi) each bill or resolution by number and short title on behalf of which the
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lobbyist, principal, or government officer made an expenditure to a public official for which a
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report is required by this section, if any;
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[(vi)] (vii) a description of each executive action on behalf of which the lobbyist,
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principal, or government officer made an expenditure to a public official for which a report is
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required by this section, if any; and
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[(vii)] (viii) the general purposes, interests, and nature of the organization or
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organizations that the lobbyist, principal, or government officer filing the report represents.
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(c) In reporting expenditures under this section for events to which all legislators are
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invited, each lobbyist, principal, and government officer:
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(i) may not divide the cost of the event by the number of legislators who actually attend
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the event and report that cost as an expenditure made to those legislators;
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(ii) shall divide the total cost by the total number of Utah legislators and others invited
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to the event and report that quotient as the amount expended for each legislator who actually
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attended the event; and
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(iii) may not report any expenditure as made to a legislator who did not attend the
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event.
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(3) (a) As used in this Subsection (3):
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(i) "Lobbyist group" means two or more lobbyists, principals, government officers,
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[and] or any combination of lobbyists, principals, and government officers who each contribute
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a portion of an expenditure made to benefit a public official or member of his immediate
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family.
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(ii) "Multiclient lobbyist" means a single lobbyist, principal, or government officer
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who represents two or more clients and divides the aggregate daily expenditure made to benefit
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a public official or member of his immediate family between two or more of those clients.
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(b) When a lobbyist group combines to make aggregate daily expenditures to benefit
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public officials or members of their immediate families, and the total aggregate daily
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expenditure of the lobbyist group exceeds $50 per person, each member of the lobbyist group
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shall disclose on the reports required by this section:
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(i) the date, location, and purpose of the event, activity, or expenditure;
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(ii) the name of the public official or member of the public official's immediate family
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who attended the event or activity or received the benefit of the expenditure;
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(iii) the public official type to which each public official belongs;
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(iv) the total monetary worth of the benefit conferred on the public official or member
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of the public official's immediate family by the lobbyist group [and];
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(v) the total monetary worth of the benefit conferred upon the public official or
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member of the public official's immediate family by the lobbyist, principal, or government
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officer filing the financial report;
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[(v)] (vi) each bill or resolution by number and short title on behalf of which the
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lobbyist, principal, or government officer made an expenditure to a public official for which a
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report is required by this section, if any;
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[(vi)] (vii) a description of each executive action on behalf of which the lobbyist,
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principal, or government officer made an expenditure to a public official for which a report is
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required by this section, if any; and
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[(vii)] (viii) the general purposes, interests, and nature of the organization or
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organizations that the lobbyist, principal, or government officer filing the report represents.
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(c) When a multiclient lobbyist makes aggregate daily expenditures to benefit public
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officials or members of their immediate families, and the sum of the total aggregate daily
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expenditure for all of the lobbyist's clients exceeds $50 for a public official or family member,
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the multiclient lobbyist shall, for each client, disclose on the reports required by this section:
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(i) the date, location, and purpose of the event, activity, or expenditure;
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(ii) the name of the public official or member of the public official's immediate family
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who attended the event or activity or received the benefit of the expenditure;
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(iii) the public official type to which each public official belongs;
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(iv) the total monetary worth of the benefit conferred on the public official or member
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of the public official's immediate family by all clients [and];
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(v) the total monetary worth of the benefit conferred on the public official or member
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of the public official's immediate family by the client upon whose behalf the report is filed;
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[(v)] (vi) each bill or resolution by number and short title on behalf of which the
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lobbyist, principal, or government officer made an expenditure to a public official for which a
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report is required by this section, if any;
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[(vi)] (vii) a description of each executive action on behalf of which the lobbyist,
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principal, or government officer made an expenditure to a public official for which a report is
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required by this section, if any; and
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[(vii)] (viii) the general purposes, interests, and nature of the organization or
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organizations that the lobbyist, principal, or government officer filing the report represents.
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(4) A related person may not, while assisting a lobbyist, principal, or government
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officer in lobbying, make an expenditure that benefits a public official or member of the public
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official's immediate family under circumstances which would otherwise fall within the
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disclosure requirements of this chapter if the expenditure was made by the lobbyist, principal,
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or government officer.
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[(5) (a) Each lobbyist, principal, and government officer who makes expenditures
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totaling $50 or more to benefit public officials or members of their immediate families since
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the date of the last financial report filed shall file a financial report with the lieutenant governor
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on:]
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[(i) the date ten days after the last day of each annual general session;]
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[(ii) the date seven days before a regular general election; and]
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[(iii) the date seven days after the end of a special session or veto override session.]
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[(b) (i) If any date specified in this Subsection (5) falls on a Saturday, Sunday, or legal
357
holiday, the report is due on the next business day or on the next succeeding business day, if
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the due date falls on a Saturday, Sunday, or legal holiday.]
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[(ii) The report shall be considered timely filed if it is postmarked on its due date.]
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[(c) Each report shall contain a listing of all expenditures made since the last
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expenditure reported on the last report filed in the form specified in Subsection (2)(b) and,
362
when applicable, Subsection (3).]
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[(d) In preparing each financial report, all expenditures shall be reported as of five days
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before the required filing date of the report.]
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[(6)] (5) Each quarterly financial report filed by a lobbyist shall contain a certification
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that the information provided in the report is true, accurate, and complete to the lobbyist's best
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knowledge and belief.
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[(7)] (6) The lieutenant governor shall:
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(a) develop preprinted suggested forms for all statements required by this section; and
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(b) make copies of the forms available to each person who requests them.
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[(8)] (7) (a) Each lobbyist and each principal shall continue to file the quarterly
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financial reports required by this section [until the lobbyist or principal has filed the report due
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on the first January 10 that is more than 12 months after the date that the lobbyist surrenders,]
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until the lobbyist or principal files a statement with the lieutenant governor that:
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(i) states:
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(A) for a lobbyist, that the lobbyist has ceased lobbying activities; or
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(B) for a principal, that the principal no longer employs an individual as a lobbyist;
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(ii) in the case of a lobbyist, states that the lobbyist is surrendering the lobbyist's
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license;
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(iii) contains a listing, as required by this section, of all previously unreported
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expenditures that have been made through the date of the statement; and
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(iv) states that the lobbyist or principal will not make any additional expense that is not
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disclosed on the statement unless the lobbyist or principal complies with the disclosure and
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licensing requirements of this chapter.
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(b) A lobbyist that fails to renew[,] the lobbyist's license or otherwise ceases to be
386
licensed[.] shall be required to file quarterly reports until the lobbyist files the statement
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required by Subsection (7)(a).
388
Section 4.
Section
36-11-306
is enacted to read:
389
36-11-306. Conflicts of interest.
390
(1) As used in this section, "conflict of interest" means a circumstance where:
391
(a) the representation of one principal or client will be directly adverse to another
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principal or client; or
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(b) there is a significant risk that the representation of one or more principals or clients
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will be materially limited by the lobbyist's responsibilities to:
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(i) another principal or client;
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(ii) a former principal or client;
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(iii) a third person; or
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(iv) a personal interest of the lobbyist.
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(2) Except as provided in Subsection (3), a lobbyist may not represent a principal or
400
client if the representation involves a conflict of interest.
401
(3) Notwithstanding the existence of a conflict of interest, a lobbyist may represent a
402
principal or client if:
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(a) the lobbyist reasonably believes that the lobbyist will be able to provide competent
404
and diligent representation to each principal or client;
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(b) the representation is not otherwise prohibited by law;
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(c) the representation does not require the lobbyist to assert a position on behalf of one
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principal or client that is opposed to the position of another principal or client represented by
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the lobbyist involving the same legislative issue; and
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(d) each affected principal or client gives informed consent to the conflict of interest in
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writing.
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Section 5.
Section
67-16-5
is amended to read:
412
67-16-5. Accepting gift, compensation, or loan -- When prohibited.
413
(1) As used in this section, "economic benefit tantamount to a gift" includes:
414
(a) a loan at an interest rate that is substantially lower than the commercial rate then
415
currently prevalent for similar loans; and
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(b) compensation received for private services rendered at a rate substantially
417
exceeding the fair market value of the services.
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(2) It is an offense for a public officer[,] or public employee, [or legislator,] under
419
circumstances not amounting to a violation of Section
63-56-1001
or
76-8-105
, to knowingly
420
receive, accept, take, seek, or solicit, directly or indirectly for himself or another a gift of
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substantial value or a substantial economic benefit tantamount to a gift:
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(a) that would tend improperly to influence a reasonable person in the person's position
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to depart from the faithful and impartial discharge of the person's public duties;
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(b) that the person knows or that a reasonable person in that position should know
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under the circumstances is primarily for the purpose of rewarding the person for official action
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taken; or
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(c) if he recently has been, is now, or in the near future may be involved in any
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governmental action directly affecting the donor or lender, unless a disclosure of the gift,
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compensation, or loan and other relevant information has been made in the manner provided in
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Section
67-16-6
.
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(3) Subsection (2) does not apply to:
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(a) an occasional nonpecuniary gift, having a value of not in excess of $50;
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(b) an award publicly presented in recognition of public services;
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(c) any bona fide loan made in the ordinary course of business; or
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(d) a political campaign contribution.
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Section 6. Coordinating S.B. 246 with H.B. 62 -- Superseding amendments.
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If this S.B. 246 and H.B. 62, Lobbyist Disclosure Technical Amendments, both pass, it
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is the intent of the Legislature that the amendments to Section
36-11-201
in this bill supersede
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the amendments to Section
36-11-201
in H.B. 62 when the Office of Legislative Research and
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General Counsel prepares the Utah Code database for publication.
Legislative Review Note
as of 2-21-07 12:28 PM