72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
 
SA to A-Eng. HB 3328 (A to RC)
 
LC 345/HB 3328-A10
 
                      SENATE AMENDMENTS TO
                   A-ENGROSSED HOUSE BILL 3328
           (INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
 
                      By COMMITTEE ON RULES
 
                            August 12
 
  On page 1 of the printed A-engrossed bill, line 3, after '
171.740' insert ', 171.778'.
  On page 4, after line 4, insert:
  '  { +  SECTION 1a. + }  { + If Senate Bill 81 becomes law,
section 1 of this 2003 Act (amending ORS 244.020) is repealed and
ORS 244.020, as amended by section 115, chapter 14, Oregon Laws
2003 (Enrolled Senate Bill 81), is amended to read: + }
  ' 244.020. As used in this chapter, unless the context requires
otherwise:
  ' (1) 'Actual conflict of interest' means any action or any
decision or recommendation by a person acting in a capacity as a
public official, the effect of which would be to the private
pecuniary benefit or detriment of the person or   { - the
person's relative - }   { + a relative of the person + } or any
business with which the person or a relative of the person is
associated unless the pecuniary benefit or detriment arises out
of circumstances described in subsection (14) of this section.
  ' (2) 'Business' means any corporation, partnership,
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual and any other legal entity
operated for economic gain but excluding any income-producing
not-for-profit corporation that is tax exempt under section
501(c) of the Internal Revenue Code with which a public official
 { + or a relative of the public official + } is associated
 { + only as a member or director or + } in a nonremunerative
capacity.
  ' (3) 'Business with which the person is associated' means:
  ' (a) Any private business or closely held corporation of which
the person or   { - the person's relative - }   { + a relative of
the person + } is a director, officer, owner or employee, or
agent or any private business or closely held corporation in
which the person or   { - the person's relative - }   { + a
relative of the person + } owns or has owned stock, another form
of equity interest, stock options or debt instruments worth
$1,000 or more at any point in the preceding calendar year;
  ' (b) Any publicly held corporation in which the person or
  { - the person's relative - }   { + a relative of the
person + } owns or has owned $100,000 or more in stock or another
form of equity interest, stock options or debt instruments at any
point in the preceding calendar year;
  ' (c) Any publicly held corporation of which the person or
  { - the person's relative - }   { + a relative of the
person + } is a director or officer; or
  ' (d) For public officials required to file a statement of
economic interest under ORS 244.050, any business from which 50
percent or more of the total annual income of the person and
members of the person's household is derived during the current
calendar year.
 
  ' (4) 'Commission' means the Oregon Government Standards and
Practices Commission.
  ' (5) 'Development commission' means any entity which has the
authority to purchase, develop, improve or lease land or the
authority to operate or direct the use of land. This authority
must be more than ministerial.
  ' (6) 'Expenditure' has the meaning given that term in ORS
260.005.
  ' (7) 'Gift' means something of economic value given to a
public official or   { - the public official's relative - }
 { + a relative of the public official + } without valuable
consideration of equivalent value, including the full or partial
forgiveness of indebtedness, which is not extended to others who
are not public officials or the relatives of public officials on
the same terms and conditions; and something of economic value
given to a public official or   { - the public official's
relative - }   { + a relative of the public official + } for
valuable consideration less than that required from others who
are not public officials. However, 'gift' does not mean:
  ' (a) Campaign contributions, as described in ORS chapter 260.
  ' (b) Gifts from family members.
  ' (c) The giving or receiving of food, lodging and travel when
 { - participating - }   { + a public official or a relative of
the public official participates + } in an event   { - which - }
 { + that + } bears a relationship to the public official's
office and when   { - appearing - }  { + the public official
appears + } in an official capacity, subject to the reporting
requirement of ORS 244.060 (6).
  ' (d) The giving or receiving of food or beverage if the food
or beverage is consumed by the public official or   { - the
public official's relatives - }   { + a relative of the public
official + } in the presence of the purchaser or provider
thereof.
  ' (e) The giving or receiving of entertainment if the
entertainment is experienced by the public official or   { - the
public official's relatives - }   { + a relative of the public
official + } in the presence of the purchaser or provider thereof
and the value of the entertainment does not exceed $100 per
person on a single occasion and is not greater than $250 in any
one calendar year.
  ' (8) 'Honoraria' means a payment or something of economic
value given to a public official in exchange for services upon
which custom or propriety prevents the setting of a price.
Services include, but are not limited to, speeches or other
services rendered in connection with an event at which the public
official appears in an official capacity.
  ' (9) 'Income' means income of any nature derived from any
source, including, but not limited to, any salary, wage, advance,
payment, dividend, interest, rent, honoraria, return of capital,
forgiveness of indebtedness, or anything of economic value.
  ' (10) 'Legislative or administrative interest' means an
economic interest, distinct from that of the general public, in
one or more bills, resolutions, regulations, proposals or other
matters subject to the action or vote of a person acting in the
capacity of a public official.
  ' (11) 'Legislative official' means any member or member-elect
of the Legislative Assembly, any member of an agency, board or
committee that is part of the legislative branch and any staff
person, assistant or employee thereof.
  ' (12) 'Member of household' means any relative who resides
with the public official.
  ' (13) 'Planning commission' means a county planning commission
created under ORS chapter 215 or a city planning commission
created under ORS chapter 227.
  ' (14) 'Potential conflict of interest' means any action or any
decision or recommendation by a person acting in a capacity as a
public official, the effect of which could be to the private
pecuniary benefit or detriment of the person or   { - the
person's relative - }  { +  a relative of the person + }, or a
business with which the person or   { - the person's relative - }
 { + a relative of the person + } is associated, unless the
pecuniary benefit or detriment arises out of the following:
  ' (a) An interest or membership in a particular business,
industry, occupation or other class required by law as a
prerequisite to the holding by the person of the office or
position.
  ' (b) Any action in the person's official capacity which would
affect to the same degree a class consisting of all inhabitants
of the state, or a smaller class consisting of an industry,
occupation or other group including one of which or in which the
person, or   { - the person's relative - }   { + a relative of
the person + } or business with which the person or   { - the
person's relative - }   { + a relative of the person + } is
associated, is a member or is engaged. The commission may by rule
limit the minimum size of or otherwise establish criteria for or
identify the smaller classes that qualify under this exception.
  ' (c) Membership in or membership on the board of directors of
a nonprofit corporation that is tax-exempt under section 501(c)
of the Internal Revenue Code.
  ' (15) 'Public official' means any person who, when an alleged
violation of this chapter occurs, is serving the State of Oregon
or any of its political subdivisions or any other public body of
the state as an officer, employee, agent or otherwise, and
irrespective of whether the person is compensated for such
services.
  ' (16) 'Relative' means the spouse of the public official, any
children of the public official or of the public official's
spouse, and brothers, sisters or parents of the public official
or of the public official's spouse.
  ' (17) 'Statement of economic interest' means a statement as
described by ORS 244.060 to 244.080.
  ' (18) 'Statewide official' means the Secretary of State or
Secretary of State-elect, State Treasurer or State
Treasurer-elect, Superintendent of Public Instruction or
Superintendent-elect of Public Instruction, Attorney General or
Attorney General-elect and the Commissioner of the Bureau of
Labor and Industries or the Commissioner-elect of the Bureau of
Labor and Industries.
  ' (19) 'Zoning commission' means an entity to which is
delegated at least some of the discretionary authority of a
planning commission or governing body relating to zoning and land
use matters.'.
  In line 8, delete '(a)'.
  In line 16, delete 'paragraph' and insert 'subsection'.
  In line 17, delete '(A)' and insert '(a)'.
  Delete line 18 and insert:
  ' (b) Honoraria except as prohibited in subsections (7) to (9)
of this section;'.
  In line 19, delete '(C)' and insert '(c)'.
  In line 20, delete '(D)' and insert '(d)'.
  In line 21, delete '(E)' and insert '(e)'.
  In line 26, delete '(F)' and insert '(f)'.
  In line 30, delete '(G)' and insert '(g)'.
  Delete lines 33 through 45.
  On page 5, delete lines 1 through 3.
  After line 24, insert:
  ' (7) A statewide official may not solicit or receive, whether
directly or indirectly, honoraria for the statewide official or
for any member of the household of the official. A candidate for
statewide office may not solicit or receive, whether directly or
indirectly, honoraria for the candidate or for any member of the
household of the candidate.
  ' (8) Except as provided in subsection (10) of this section, a
legislative official may not solicit or receive, whether directly
or indirectly, honoraria for the legislative official or for any
member of the household of the official:
  ' (a) In any amount for an appearance within this state;
  ' (b) In an amount exceeding $1,500 for an appearance outside
this state; or
  ' (c) In any amount for an appearance during a legislative
session, regardless of location.
  ' (9) Except as provided in subsection (10) of this section, a
candidate for legislative office may not solicit or receive,
whether directly or indirectly, honoraria for the candidate or
for any member of the household of the candidate:
  ' (a) In any amount for an appearance within this state; or
  ' (b) In an amount exceeding $1,500 for an appearance outside
this state.
  ' (10) A legislative official or candidate for legislative
office may solicit or receive honoraria for services performed in
relation to the private profession or occupation of the
legislative official or candidate.
  ' (11) Any public official not described in subsections (7) to
(10) of this section or a member of the public official's
household may receive honoraria.'.
  On page 8, line 4, delete '90' and insert '135'.
  In line 34, delete '120' and insert '180'.
  On page 10, line 45, delete '90' and insert '135'.
  On page 11, line 30, delete '120' and insert '180'.
  On page 14, after line 31, insert:
  '  { +  SECTION 10a. + } ORS 171.778 is amended to read:
  ' 171.778. (1) Upon its own instigation or signed complaint of
any person, the Oregon Government Standards and Practices
Commission may undertake action in the Preliminary Review Phase
with respect to any alleged violation of ORS 171.725 to 171.785.
The person who is the subject of a complaint or of the
commission's own action shall be notified immediately upon
receipt of the complaint or upon adoption of a motion by the
commission to undertake any action concerning the person. The
notice shall be given by telephone if the person can be reached
and a notice shall also be mailed to the person. The notice shall
include the nature of the complaint or motion and a copy of all
materials submitted along with the complaint or materials which
give rise to the commission's instigation of action on its own
motion. However, the person must also be notified in advance if
an issue that may give rise to a motion to undertake action on
the commission's own instigation is to be discussed at a
commission meeting. Before investigating any complaint or
undertaking an investigation on its own instigation, the
commission shall make a finding that there is cause to undertake
an investigation, notify the person who is the subject of the
investigation, identify the issues to be examined and shall
confine its investigation to those issues. If the commission
finds reason to expand its investigation, it shall move to do so
and shall record in its minutes the issues to be examined before
expanding the scope of its investigation and formally notify the
complainant and the person who is the subject of the complaint of
the expansion and the scope thereof. If the commission does not
make a finding of cause, it shall dismiss the complaint or
rescind its motion and shall formally enter the dismissal or
rescission on its records. The commission shall notify the person
of the dismissal or rescission. After dismissal or rescission,
the commission shall take no further action involving the person
unless a new and different complaint is filed or action at its
own instigation is undertaken based on different conduct.
  ' (2) The commission may:
  ' (a) During the Preliminary Review Phase, seek, solicit or
otherwise obtain any books, papers, records, memoranda or other
additional information, administer oaths, and take depositions
necessary to determine whether there is cause; and
  ' (b) During the Investigatory Phase, require any additional
information, administer oaths, take depositions and issue
subpoenas to compel attendance of witnesses and the production of
books, papers, records, memoranda or other information necessary
to complete the investigation. If any person fails to comply with
any subpoena issued under this section or refuses to testify on
any matters on which the person may be lawfully interrogated, the
procedure provided in ORS 183.440 shall be followed to compel
compliance.
  ' (3) The person conducting any inquiry or investigation shall
do so in an impartial, objective manner. All favorable and
unfavorable information collected by the investigator shall be
turned over to the commission.
  ' (4) The findings of the commission in any inquiry or
investigation shall be reported impartially, including both
favorable and unfavorable findings, and shall be made available
to the person who is the subject thereof and to any employer of
the person.
  ' (5) Hearings relating to any charge of alleged violation of
ORS 171.725 to 171.785 may be held before the commission or
before a hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. The
procedure shall be that for a contested case under ORS 183.310 to
183.550.
  ' (6)(a) The period of time from the filing of a complaint or
from acting on the commission's own instigation to the finding of
cause or dismissal of the complaint or rescission of the motion
shall be termed the Preliminary Review Phase and shall not exceed
  { - 90 - }  { +  135 + } days unless a delay is stipulated to
by both the subject person and the Oregon Government Standards
and Practices Commission, with the commission reserving a portion
of the delay period to complete its actions.
  ' (b) The Preliminary Review Phase shall be confidential.
Commission members and staff may acknowledge receipt of a
complaint but shall make no public comment or publicly disclose
any materials relating to a case during the Preliminary Review
Phase. A person who intentionally violates this paragraph is
subject to a civil penalty in an amount not to exceed $1,000. Any
person aggrieved as a result of a violation of this paragraph by
a member of the commission or its staff may file a petition in a
court of competent jurisdiction in the county in which the
petitioner resides in order to enforce the civil penalty provided
in this paragraph.
  ' (c) The commission's deliberations of a case at the
conclusion of the Preliminary Review Phase shall be conducted in
executive session. All case related materials and proceedings
shall be open to the public after the commission makes a finding
of cause, dismisses a complaint or rescinds a motion. Prior to
the end of the Preliminary Review Phase, the executive director
of the commission shall prepare a statement of the facts
determined during the phase, including appropriate legal
citations and relevant authorities. Before presentation to the
commission, the executive director's statement shall be reviewed
by legal counsel to the commission.
  ' (d) The time limit imposed in this subsection and the
commission's inquiry are suspended if:
  ' (A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
  ' (B) A court has enjoined the commission from continuing its
inquiry.
  ' (7)(a) The period of time from the finding of cause to the
beginning of any contested case proceedings shall be termed the
Investigatory Phase and shall not exceed   { - 120 - }  { +
180 + } days unless a delay is stipulated to by both the subject
person and the Oregon Government Standards and Practices
Commission, with the commission reserving a portion of the delay
period to complete its actions.
  ' (b) The time limit imposed in this subsection and the
commission's investigation are suspended if:
  ' (A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
  ' (B) A court has enjoined the commission from continuing its
investigation.
  ' (c) At the end of the Investigatory Phase, the commission
shall take action by order, which action may include:
  ' (A) Dismissal, with or without comment;
  ' (B) Continuation of the investigation to determine further
facts, but no more than one continuation, not to exceed 30 days'
duration, shall be taken;
  ' (C) Moving to a contested case proceeding;
  ' (D) Seeking a negotiated settlement; or
  ' (E) Taking other appropriate action if justified by the
findings.
  ' (8) If, at the end of the Investigatory Phase, the commission
takes action by order to move to a contested case proceeding, a
person may notify the commission that the person elects to have
the commission file a lawsuit against the person in the Marion
County Circuit Court in lieu of the contested case proceeding.
The court may impose the penalty described in ORS 171.992. The
person shall notify the commission of the election in writing no
later than 21 days after receiving notification of the
commission's action by order to move to the contested case
proceeding. The commission shall file suit within 30 days after
receiving notice that the person has elected the lawsuit
procedure.
  ' (9) The commission shall not inquire into or investigate any
complaint or act at its own instigation on alleged conduct that
occurred more than four years before the complaint is filed or
action is undertaken.
  ' (10) Nothing in this section is intended to prevent the
commission and the person alleged to have violated ORS 171.725 to
171.785 from stipulating to a finding of fact concerning the
violation and consenting to an appropriate penalty. The
commission shall enter an order accordingly.
  ' (11) As used in this section, 'cause' and 'pending' have the
meanings given those terms in ORS 244.260.
  '  { +  SECTION 10b. + } ORS 171.778, as amended by section 49,
chapter 849, Oregon Laws 1999, is amended to read:
  ' 171.778. (1) Upon its own instigation or signed complaint of
any person, the Oregon Government Standards and Practices
Commission may undertake action in the Preliminary Review Phase
with respect to any alleged violation of ORS 171.725 to 171.785.
The person who is the subject of a complaint or of the
commission's own action shall be notified immediately upon
receipt of the complaint or upon adoption of a motion by the
commission to undertake any action concerning the person. The
notice shall be given by telephone if the person can be reached
and a notice shall also be mailed to the person. The notice shall
include the nature of the complaint or motion and a copy of all
materials submitted along with the complaint or materials which
give rise to the commission's instigation of action on its own
motion. However, the person must also be notified in advance if
an issue that may give rise to a motion to undertake action on
the commission's own instigation is to be discussed at a
commission meeting. Before investigating any complaint or
undertaking an investigation on its own instigation, the
commission shall make a finding that there is cause to undertake
an investigation, notify the person who is the subject of the
investigation, identify the issues to be examined and shall
confine its investigation to those issues. If the commission
finds reason to expand its investigation, it shall move to do so
and shall record in its minutes the issues to be examined before
expanding the scope of its investigation and formally notify the
complainant and the person who is the subject of the complaint of
the expansion and the scope thereof. If the commission does not
make a finding of cause, it shall dismiss the complaint or
rescind its motion and shall formally enter the dismissal or
rescission on its records. The commission shall notify the person
of the dismissal or rescission. After dismissal or rescission,
the commission shall take no further action involving the person
unless a new and different complaint is filed or action at its
own instigation is undertaken based on different conduct.
  ' (2) The commission may:
  ' (a) During the Preliminary Review Phase, seek, solicit or
otherwise obtain any books, papers, records, memoranda or other
additional information, administer oaths, and take depositions
necessary to determine whether there is cause; and
  ' (b) During the Investigatory Phase, require any additional
information, administer oaths, take depositions and issue
subpoenas to compel attendance of witnesses and the production of
books, papers, records, memoranda or other information necessary
to complete the investigation. If any person fails to comply with
any subpoena issued under this section or refuses to testify on
any matters on which the person may be lawfully interrogated, the
procedure provided in ORS 183.440 shall be followed to compel
compliance.
  ' (3) The person conducting any inquiry or investigation shall
do so in an impartial, objective manner. All favorable and
unfavorable information collected by the investigator shall be
turned over to the commission.
  ' (4) The findings of the commission in any inquiry or
investigation shall be reported impartially, including both
favorable and unfavorable findings, and shall be made available
to the person who is the subject thereof and to any employer of
the person.
  ' (5) Hearings relating to any charge of alleged violation of
ORS 171.725 to 171.785 may be held before the commission or
before a hearing officer appointed by the commission. The
procedure shall be that for a contested case under ORS 183.310 to
183.550.
  ' (6)(a) The period of time from the filing of a complaint or
from acting on the commission's own instigation to the finding of
cause or dismissal of the complaint or rescission of the motion
shall be termed the Preliminary Review Phase and shall not exceed
  { - 90 - }  { +  135 + } days unless a delay is stipulated to
by both the subject person and the Oregon Government Standards
and Practices Commission, with the commission reserving a portion
of the delay period to complete its actions.
  ' (b) The Preliminary Review Phase shall be confidential.
Commission members and staff may acknowledge receipt of a
complaint but shall make no public comment or publicly disclose
any materials relating to a case during the Preliminary Review
Phase. A person who intentionally violates this paragraph is
subject to a civil penalty in an amount not to exceed $1,000. Any
person aggrieved as a result of a violation of this paragraph by
a member of the commission or its staff may file a petition in a
court of competent jurisdiction in the county in which the
petitioner resides in order to enforce the civil penalty provided
in this paragraph.
  ' (c) The commission's deliberations of a case at the
conclusion of the Preliminary Review Phase shall be conducted in
executive session. All case related materials and proceedings
shall be open to the public after the commission makes a finding
of cause, dismisses a complaint or rescinds a motion. Prior to
the end of the Preliminary Review Phase, the executive director
of the commission shall prepare a statement of the facts
determined during the phase, including appropriate legal
citations and relevant authorities. Before presentation to the
commission, the executive director's statement shall be reviewed
by legal counsel to the commission.
  ' (d) The time limit imposed in this subsection and the
commission's inquiry are suspended if:
  ' (A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
  ' (B) A court has enjoined the commission from continuing its
inquiry.
  ' (7)(a) The period of time from the finding of cause to the
beginning of any contested case proceedings shall be termed the
Investigatory Phase and shall not exceed   { - 120 - }  { +
180 + } days unless a delay is stipulated to by both the subject
person and the Oregon Government Standards and Practices
Commission, with the commission reserving a portion of the delay
period to complete its actions.
  ' (b) The time limit imposed in this subsection and the
commission's investigation are suspended if:
  ' (A) There is a pending criminal investigation that relates to
the issues arising out of the underlying facts or conduct at
issue in the matter before the commission, unless the parties
stipulate otherwise; or
  ' (B) A court has enjoined the commission from continuing its
investigation.
  ' (c) At the end of the Investigatory Phase, the commission
shall take action by order, which action may include:
  ' (A) Dismissal, with or without comment;
  ' (B) Continuation of the investigation to determine further
facts, but no more than one continuation, not to exceed 30 days'
duration, shall be taken;
  ' (C) Moving to a contested case proceeding;
  ' (D) Seeking a negotiated settlement; or
  ' (E) Taking other appropriate action if justified by the
findings.
  ' (8) If, at the end of the Investigatory Phase, the commission
takes action by order to move to a contested case proceeding, a
person may notify the commission that the person elects to have
the commission file a lawsuit against the person in the Marion
County Circuit Court in lieu of the contested case proceeding.
The court may impose the penalty described in ORS 171.992. The
person shall notify the commission of the election in writing no
later than 21 days after receiving notification of the
commission's action by order to move to the contested case
proceeding. The commission shall file suit within 30 days after
receiving notice that the person has elected the lawsuit
procedure.
  ' (9) The commission shall not inquire into or investigate any
complaint or act at its own instigation on alleged conduct that
occurred more than four years before the complaint is filed or
action is undertaken.
  ' (10) Nothing in this section is intended to prevent the
commission and the person alleged to have violated ORS 171.725 to
171.785 from stipulating to a finding of fact concerning the
violation and consenting to an appropriate penalty. The
commission shall enter an order accordingly.
  ' (11) As used in this section, 'cause' and 'pending' have the
meanings given those terms in ORS 244.260.'.
  On page 16, line 45, after '1' insert ', 1a'.
 
  On page 17, line 17, delete 'and 171.740 by sections 9 and 10'
and insert ', 171.740 and 171.778 by sections 9, 10, 10a and
10b'.
  After line 25, insert:
  ' (7) The amendments to ORS 171.778 by sections 10a and 10b of
this 2003 Act apply to complaints filed on or after January 1,
2004.'.
  In line 26, delete '(7)' and insert '(8)'.
  In line 28, delete '(8)' and insert '(9)'.
  In line 30, delete '(9)' and insert '(10)'.
  In line 37, delete '(10)' and insert '(11)' and after '
171.740' insert ', 171.778'.
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