Chapter 922 Oregon Laws 2001

AN ACT

HB 3968

Relating to state finance; creating new provisions; amending ORS 65.957, 192.502, 293.701, 293.731, 293.761, 348.696, 348.701, 348.702, 348.703 and 348.707 and section 19, chapter 835, Oregon Laws 2001 (Enrolled Senate Bill 102), sections 1 and 5, chapter 519, Oregon Laws 2001 (Enrolled Senate Bill 273), and section 32, chapter 988, Oregon Laws 2001 (Enrolled Senate Bill 5533); repealing ORS 284.610, 284.630, 284.640, 284.650, 284.655, 284.665, 284.675 and 284.705 and section 11, chapter 920, Oregon Laws 2001 (Enrolled Senate Bill 101), and sections 10, 12, 15, 16 and 17, chapter 835, Oregon Laws 2001 (Enrolled Senate Bill 102); limiting expenditures; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 348.701, as amended by section 1, chapter 52, Oregon Laws 2001 (Enrolled House Bill 2119), is amended to read:

348.701. As used in ORS 348.701 to 348.710:

[(1) “Affordable housing’’ means housing for Oregonians that is priced at or below 80 percent of the median gross household income level statewide and where the cost of that housing comprises not more than 30 percent of the gross income of a household.]

[(2)] (1) “Board’’ means the Oregon Growth Account Board established in ORS 348.707.

[(3)] (2) “Emerging growth business’’ means a new or small company that has the capacity, upon obtaining appropriate capital, to generate significant high skill, high wage employment within one or more of the key industries, including those described in ORS 285B.280[, and affordable housing].

[(4)] (3) “Management company’’ includes a person, limited partnership, partnership, corporation or other investment company.

(4) “Seed capital’’ means financing that is provided for the initial phases of development, refinement and commercialization of a product, process or innovation, including but not limited to facilitating technology transfers related to academic research, discoveries or developments for the purpose of commercialization of a product, process or innovation.

SECTION 2. ORS 348.702 is amended to read:

348.702. (1) There is created within the Education Endowment Fund the Oregon Growth Account, to which shall be credited 10 percent of the funds transferred under section 4, Article XV, Oregon Constitution, from the Administrative Services Economic Development Fund to the Education Endowment Fund. Separate records shall be maintained for moneys in the Oregon Growth Account that are available for the purposes specified in subsection (2) of this section. The account may be credited with such unrestricted appropriations, gifts, donations, grants or contract proceeds from any source, with investments or funds from any source, and with returns on investments made from the account.

(2) The purpose of the Oregon Growth Account is to earn returns for the Education Endowment Fund by making investments in or to provide seed capital for emerging growth businesses in key industries[, including affordable housing, in Oregon].

(3) The investment of funds in the Oregon Growth Account shall be governed by the Oregon Growth Account Board.

SECTION 3. ORS 348.703, as amended by section 2, chapter 52, Oregon Laws 2001 (Enrolled House Bill 2119), is amended to read:

348.703. (1) The Oregon Growth Account Board shall contract with one or more management companies to manage and invest the moneys in the Oregon Growth Account. For purposes of this subsection, a contract with a management company may consist of a partnership agreement under which the Oregon Growth Account Board is the limited partner and the management company is the general partner.

(2) [Notwithstanding ORS 293.726,] The provisions of ORS 293.726 do not apply to those assets of the Education Endowment Fund that are held in the Oregon Growth Account. The limitations of ORS 293.726 (6) shall be calculated based only on the balance of the Education Endowment Fund that does not include the Oregon Growth Account.

(3) A management company selected to manage the Oregon Growth Account shall manage the moneys in the account, subject to investment policies established by the State Treasurer and the investment directives or strategies of the Oregon Growth Account Board, with the care, skill and diligence that a prudent investor acting in a similar capacity and familiar with such investments would use in managing and investing a similar account. The management company shall invest in Oregon an amount that is at least equal to the amount of the principal transferred from the Oregon Growth Account to the management company for investment.

[(3)] (4) The contract between the board and a management company to manage the Oregon Growth Account and the functions performed under the contract are not subject to the State Personnel Relations Law or ORS chapter 279.

[(4)] (5) Notwithstanding ORS 348.702 (2), a management company selected to manage the Oregon Growth Account may maintain a portion of the moneys allocated to the account under ORS 348.702 (1) in short-term securities in investments other than those specified in ORS 348.702 (2) during such times as a management company is seeking investments that meet the requirements of ORS 348.702 (2).

[(5)] (6) The State Treasurer shall annually submit a report to the Governor and to the Legislative Assembly on the investment of moneys in the Oregon Growth Account. The report required by this subsection shall include a summary of the amount of money invested by industrial sector or business classification, by region of this state, by size of investment and by type of investment.

[(6)] (7) The State Treasurer shall provide to other state agencies any reports on the investment of moneys in the Oregon Growth Account that are necessary to fulfill audit, financial, investment or other reporting requirements to which the Education Endowment Fund is subject by law or standard accounting principles.

[(7)] (8) The office of the State Treasurer shall provide staff to the board.

[(8)] (9) There is continuously appropriated to the board from the Oregon Growth Account those amounts necessary to meet the expenses of the board and the State Treasurer in carrying out the operations of the Oregon Growth Account and the duties of the board and the State Treasurer. The cost to the office of the State Treasurer of providing staff to the board shall be deducted from those amounts paid to the State Treasurer pursuant to ORS 293.718 as reimbursement for expenses incurred as investment officer for the Education Endowment Fund.

[(9)] (10) The board may enter into contracts for the provision of investment advice or other services that the board deems reasonable and necessary to fulfill the duties of the board. The State Treasurer may enter into contracts for the provision of investment advice or other services that the State Treasurer deems reasonable and necessary to fulfill the duties of the State Treasurer with respect to the Oregon Growth Account. Such contracts are not subject to the State Personnel Relations Law or ORS chapter 279.

SECTION 4. ORS 348.707, as amended by section 3, chapter 52, Oregon Laws 2001 (Enrolled House Bill 2119), is amended to read:

348.707. (1) There is established an Oregon Growth Account Board consisting of:

(a) The State Treasurer or the treasurer's designated representative, who shall be the chairperson of the board.

(b) [Two] Three members appointed by the Governor from a list of candidates recommended by the State Treasurer who are qualified by training and experience in the field of venture capital and emerging growth businesses in Oregon.

(c) [One member] Three members from the general public appointed by the Governor from a list of candidates recommended by the State Treasurer [Oregon Economic and Community Development Commission established by ORS 285A.040].

[(d) One member appointed by the Governor from a list of candidates recommended by the State Housing Council established by ORS 456.567.]

(2) The term of office of each board member appointed by the Governor is three years. However, each member, except the State Treasurer or the treasurer's designated representative, shall serve at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(3) A member of the board may receive reimbursement of expenses under ORS 292.495 (2), but shall not receive compensation under ORS 292.495 (1) or otherwise for participation as a board member.

(4) The State Treasurer may establish investment policies for the Oregon Growth Account. The investment policies may include, but are not limited to:

(a) The reinvestment of the principal of the account after an original investment;

(b) The reinvestment of returns from an original investment;

(c) The retention of amounts for unfunded commitments owed to a management company;

(d) The determination of when and how earnings are calculated and declared available from the account on behalf of the Education Endowment Fund; and

(e) Other policies that the State Treasurer determines may increase the total earnings of the account over time.

[(4)] (5) Subject to investment policies established for moneys in the account by the State Treasurer, the board shall have authority to approve or direct specific investments or strategies for the investment of moneys in the Oregon Growth Account[, subject to investment policies established for moneys in the account by the State Treasurer, and] and to make investments directly, without the use of a management company, in any form or manner that would be lawful for a private corporation having similar intent. In addition, the board may:

(a) Acquire, own, hold, dispose of and encumber real or personal property of any nature, both tangible and intangible, or any interest in property, and exercise or acquire any rights in property necessary or desirable to protect or secure any investments in which the account has an interest;

(b) Trade, buy or sell securities;

(c) Own, possess, take license in and grant license to patents, copyrights, proprietary processes and other intellectual property, and negotiate and enter into contracts and establish charges for the use of such patents, copyrights, proprietary processes and other intellectual property; and

(d) Exercise any other powers necessary or desirable for the operation and functioning of the account within the purposes authorized in ORS 348.702.

(6) When performing the board's duties, the board shall exercise the care, skill and diligence that a prudent investor acting in a similar capacity and familiar with such investments would use in managing and investing a similar account. [The investment policies of the State Treasurer may include, but are not limited to:]

[(a) The reinvestment of the principal of the account after an original investment;]

[(b) The reinvestment of returns from an original investment;]

[(c) The retention of amounts for unfunded commitments owed to a management company;]

[(d) The determination of when and how earnings are calculated and declared available from the account on behalf of the Education Endowment Fund; and]

[(e) Other policies that the State Treasurer determines may increase the total earnings of the account over time.]

[(5)] (7) The State Treasurer shall report on the development of the policies described in subsection (4) of this section to the legislative interim committees on trade and economic development and government finance and tax policy.

SECTION 5. Notwithstanding the amendments to ORS 348.707 by section 4 of this 2001 Act, the members of the Oregon Growth Account Board serving on the board on the effective date of this 2001 Act shall continue to serve for the remainder of their terms. The State Treasurer shall designate which of the members serving on the board on the effective date of this 2001 Act are intended to meet the requirements of ORS 348.707 (1) (b) and (c), as amended by section 4 of this 2001 Act.

SECTION 6. Sections 7 and 8 of this 2001 Act are added to and made a part of ORS 348.701 to 348.710.

SECTION 7. (1) There is created within the Oregon Growth Account the Oregon Resource and Technology Development Subaccount. Separate records shall be maintained for moneys in the subaccount. Subject to investment policies established by the State Treasurer and investment directives or strategies of the Oregon Growth Account Board, moneys in the subaccount shall be used to make seed capital investments in emerging growth businesses in key industries in Oregon.

(2) The board may allocate such amounts from the subaccount as the board determines appropriate for seed capital investments.

SECTION 8. The Oregon Growth Account Board may allocate to, withdraw from or transfer from the Oregon Resource and Technology Development Subaccount and the balance of the Oregon Growth Account such moneys, investments, returns or other assets or amounts the board determines necessary or desirable to further the purpose set forth in ORS 348.702.

SECTION 9. Notwithstanding sections 7 (2) and 8 of this 2001 Act, the Oregon Growth Account Board shall allocate to the Oregon Resource and Technology Development Subaccount:

(1) Those assets transferred on the effective date of this 2001 Act from the Oregon Resource and Technology Development Account under section 17 of this 2001 Act; and

(2) For the 2002-2003 fiscal year, the first $4 million of the funds credited to the Oregon Growth Account under ORS 348.702 (1) from the funds transferred under section 4, Article XV, Oregon Constitution, from the Administrative Services Economic Development Fund to the Education Endowment Fund.

NOTE: Section 10 was deleted by amendment. Subsequent sections were not renumbered.

SECTION 11. ORS 65.957 is amended to read:

65.957. (1) This chapter applies to all domestic corporations in existence on October 3, 1989, that were incorporated under any general statute of this state providing for incorporation of nonprofit corporations if power to amend or repeal the statute under which the corporation was incorporated was reserved.

(2) Without limitation as to any other corporations which may be outside the scope of subsection (1) of this section, this chapter does not apply to the following:

(a) The Oregon State Bar and the Oregon State Bar Professional Liability Fund created under ORS 9.005 to 9.755;

[(b) The Oregon Resource and Technology Development Account and the Oregon Resource and Technology Development Account Board created under ORS chapter 284;]

[(c)] (b) The State Accident Insurance Fund Corporation created under ORS chapter 656;

[(d)] (c) The Oregon Insurance Guaranty Association and the Oregon Life and Health Insurance Guaranty Association created under ORS chapter 734; and

[(e)] (d) The Oregon FAIR Plan Association and the Oregon Medical Insurance Pool created under ORS chapter 735.

(3) A public benefit corporation that has less than three directors on October 3, 1989, shall comply with ORS 65.307 (1) by October 3, 1990.

SECTION 12. ORS 192.502 is amended to read:

192.502. The following public records are exempt from disclosure under ORS 192.410 to 192.505:

(1) Communications within a public body or between public bodies of an advisory nature to the extent that they cover other than purely factual materials and are preliminary to any final agency determination of policy or action. This exemption shall not apply unless the public body shows that in the particular instance the public interest in encouraging frank communication between officials and employees of public bodies clearly outweighs the public interest in disclosure.

(2) Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.

(3) (a) Public body employee or volunteer addresses, dates of birth and telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption does not apply:

(A) To such employees or volunteers if they are elected officials, except that a judge or district attorney subject to election may seek to exempt the judge's or district attorney's address or telephone number, or both, under the terms of ORS 192.445;

(B) To such employees or volunteers to the extent that the party seeking disclosure shows by clear and convincing evidence that the public interest requires disclosure in a particular instance; or

(C) To a substitute teacher as defined in ORS 342.815 when requested by a professional education association of which the substitute teacher may be a member.

(b) Nothing in this subsection exempting employee records from disclosure relieves a public employer of any duty under ORS 243.650 to 243.782.

(4) Information submitted to a public body in confidence and not otherwise required by law to be submitted, where such information should reasonably be considered confidential, the public body has obliged itself in good faith not to disclose the information, and when the public interest would suffer by the disclosure.

(5) Information or records of the Department of Corrections, including the State Board of Parole and Post-Prison Supervision, to the extent that disclosure thereof would interfere with the rehabilitation of a person in custody of the department or substantially prejudice or prevent the carrying out of the functions of the department, if the public interest in confidentiality clearly outweighs the public interest in disclosure.

(6) Records, reports and other information received or compiled by the Director of the Department of Consumer and Business Services in the administration of ORS chapters 723 and 725 not otherwise required by law to be made public, to the extent that the interests of lending institutions, their officers, employees and customers in preserving the confidentiality of such information outweighs the public interest in disclosure.

(7) Reports made to or filed with the court under ORS 137.077 or 137.530.

(8) Any public records or information the disclosure of which is prohibited by federal law or regulations.

(9) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.

(10) Public records or information described in this section, furnished by the public body originally compiling, preparing or receiving them to any other public officer or public body in connection with performance of the duties of the recipient, if the considerations originally giving rise to the confidential or exempt nature of the public records or information remain applicable.

(11) Records of the Energy Facility Siting Council concerning the review or approval of security programs pursuant to ORS 469.530.

(12) Employee and retiree address, telephone number and other nonfinancial membership records and employee financial records maintained by the Public Employees Retirement System pursuant to ORS chapter 238 and ORS 238.410.

(13) Records submitted by private persons or businesses to the State Treasurer or the Oregon Investment Council relating to proposed acquisition, exchange or liquidation of public investments under ORS chapter 293 may be treated as exempt from disclosure when and only to the extent that disclosure of such records reasonably may be expected to substantially limit the ability of the Oregon Investment Council to effectively compete or negotiate for, solicit or conclude such transactions. Records which relate to concluded transactions are not subject to this exemption.

(14) The monthly reports prepared and submitted under ORS 293.761 and 293.766 concerning the Public Employees Retirement Fund and the Industrial Accident Fund may be uniformly treated as exempt from disclosure for a period of up to 90 days after the end of the calendar quarter.

(15) Reports of unclaimed property filed by the holders of such property to the extent permitted by ORS 98.352.

(16) The following records, communications and information submitted to the Oregon Economic and Community Development Commission, the Economic and Community Development Department, the State Department of Agriculture, the Oregon [Resource and Technology Development Account or the Oregon Resource and Technology Development] Growth Account Board, the Port of Portland or other ports, as defined in ORS 777.005, by applicants for investment funds, loans or services including, but not limited to, those described in ORS 285A.224:

(a) Personal financial statements.

(b) Financial statements of applicants.

(d) Information of an applicant pertaining to litigation to which the applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the applicant shows that such litigation is reasonably likely to occur; this exemption does not apply to litigation which has been concluded, and nothing in this paragraph shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation.

(e) Production, sales and cost data.

(f) Marketing strategy information that relates to applicant's plan to address specific markets and applicant's strategy regarding specific competitors.

(17) Records, reports or returns submitted by private concerns or enterprises required by law to be submitted to or inspected by a governmental body to allow it to determine the amount of any transient lodging tax payable and the amounts of such tax payable or paid, to the extent that such information is in a form which would permit identification of the individual concern or enterprise. Nothing in this subsection shall limit the use which can be made of such information for regulatory purposes or its admissibility in any enforcement proceedings. The public body shall notify the taxpayer of the delinquency immediately by certified mail. However, in the event that the payment or delivery of transient lodging taxes otherwise due to a public body is delinquent by over 60 days, the public body shall disclose, upon the request of any person, the following information:

(a) The identity of the individual concern or enterprise that is delinquent over 60 days in the payment or delivery of the taxes.

(b) The period for which the taxes are delinquent.

(18) All information supplied by a person under ORS 151.430 to 151.491 for the purpose of requesting court-appointed counsel, and all information supplied to the State Court Administrator from whatever source for the purpose of verifying indigency of a person pursuant to ORS 151.430 to 151.491.

(19) Workers' compensation claim records of the Department of Consumer and Business Services, except in accordance with rules adopted by the Director of the Department of Consumer and Business Services, in any of the following circumstances:

(a) When necessary for insurers, self-insured employers and third party claim administrators to process workers' compensation claims.

(b) When necessary for the director, other governmental agencies of this state or the United States to carry out their duties, functions or powers.

(c) When the disclosure is made in such a manner that the disclosed information cannot be used to identify any worker who is the subject of a claim.

(d) When a worker or the worker's representative requests review of the worker's claim record.

(20) Sensitive business records or financial or commercial information of the Oregon Health Sciences University that is not customarily provided to business competitors.

(21) Records of Oregon Health Sciences University regarding candidates for the position of president of the university.

(22) The records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.

(23) The following records, communications and information submitted to the Housing and Community Services Department by applicants for and recipients of loans, grants and tax credits:

(a) Personal and corporate financial statements and information, including tax returns.

(b) Credit reports.

(d) Market studies and analyses.

(e) Articles of incorporation, partnership agreements and operating agreements.

(f) Commitment letters.

(g) Project pro forma statements.

(h) Project cost certifications and cost data.

(i) Audits.

(j) Project tenant correspondence requested to be confidential.

(k) Tenant files relating to certification.

(L) Housing assistance payment requests.

(24) Raster geographic information system (GIS) digital databases, provided by private forestland owners or their representatives, voluntarily and in confidence to the State Forestry Department, that is not otherwise required by law to be submitted.

(25) Sensitive business, commercial or financial information furnished to or developed by a public body engaged in the business of providing electricity or electricity services, if the information is directly related to a transaction described in ORS 261.348, or if the information is directly related to a bid, proposal or negotiations for the sale or purchase of electricity or electricity services, and disclosure of the information would cause a competitive disadvantage for the public body or its retail electricity customers. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

(26) Sensitive business, commercial or financial information furnished to or developed by the City of Klamath Falls, acting solely in connection with the ownership and operation of the Klamath Cogeneration Project, if the information is directly related to a transaction described in ORS 225.085 and disclosure of the information would cause a competitive disadvantage for the Klamath Cogeneration Project. This subsection does not apply to cost-of-service studies used in the development or review of generally applicable rate schedules.

(27) Personally identifiable information about customers of a municipal electric utility or a people's utility district. The utility or district may, however, release such information to a third party if the customer consents in writing or electronically, if the disclosure is necessary to render utility or district services to the customer, or if the disclosure is required pursuant to a court order. The utility or district may charge as appropriate for the costs of providing such information. The utility or district may make customer records available to third party credit agencies on a regular basis in connection with the establishment and management of customer accounts or in the event such accounts are delinquent.

(28) A record of the street and number of an employee's address submitted to a special district to obtain assistance in promoting an alternative to single occupant motor vehicle transportation.

(29) Except under the provisions of section 8 (2), chapter 1059, Oregon Laws 1999, pesticide sales or use reporting data obtained by the State Department of Agriculture exclusively under the provisions of sections 2 to 9, chapter 1059, Oregon Laws 1999, that would reveal the identity or specific location of the owner or lessee of a specific property where a pesticide has been applied for a private agriculture or forestry production operation, or other nonpublic facility on private property. Nothing in this subsection shall limit the use that may be made of such information for regulatory purposes or its admissibility in any enforcement proceedings.

(30) Sensitive business records, capital development plans or financial or commercial information of Oregon Corrections Enterprises that is not customarily provided to business competitors.

SECTION 13. ORS 192.502, as amended by section 16, chapter 1059, Oregon Laws 1999, is amended to read:

192.502. The following public records are exempt from disclosure under ORS 192.410 to 192.505:

(3)(a) Public body employee or volunteer addresses, dates of birth and telephone numbers contained in personnel records maintained by the public body that is the employer or the recipient of volunteer services. This exemption does not apply: