[As Amended by Senate Committee of the
Whole]
Session of 2000
SENATE Substitute for
HOUSE BILL No. 2627
By Committee on Elections and Local Government
3-22
12 AN ACT
concerning state officers and employees; concerning govern-
13 mental ethics;
concerning state agency contracts for consulting and
14 professional services;
amending K.S.A. 1999 Supp. 46-237, 46-237a
15 and 46-269 and
repealing the existing sections.
16
17 Be it enacted by the Legislature of the
State of Kansas:
18 Section
1. K.S.A. 1999 Supp. 46-237a is hereby amended to read as
19 follows: 46-237a. (a) The provisions of
this section shall apply to:
20 (1) The
governor;
21 (2) the
lieutenant governor;
22 (3) the
governor's spouse;
23 (4) all
classified employees in the civil service of the state of
Kansas;
24 (5) all
unclassified employees in the executive branch of state
gov-
25 ernment whose compensation is
subject to approval by the governor pur-
26 suant to K.S.A. 75-2935b, and
amendments thereto; and
27 (4) all
officers and employees of the executive branch of state
govern-
28 ment; and
29 (6)
(5) all members of boards, commissions and authorities
of the
30 executive branch of state government.
31 (b) No person
subject to the provisions of this section shall solicit or
32 accept any gift, economic opportunity,
loan, gratuity, special discount or
33 service provided because of such person's
official position, except:
34 (1) A gift having
an aggregate value of less than $40 given at a cere-
35 mony or public function where the person is
accepting the gift in such
36 person's official capacity; or
37 (2) gifts from
relatives or gifts from personal friends when it is ob-
38 vious to the person that the gift is not
being given because of the person's
39 official position; or
40 (3) anything of
value received by the person on behalf of the state
41 that inures to the benefit of the state or
that becomes the property of the
42 state; or
43 (4) contributions
solicited on behalf of a nonprofit organization which
2
1 is exempt from taxation under
paragraph (3) of subsection (c) of section
2 501 of the internal revenue code of
1986, as amended.
3 (c) No
person subject to the provisions of this section shall solicit
or
4 accept free or special discount meals
from a source outside of state gov-
5 ernment, except:
6 (1) Meals,
the provision of which is motivated by a personal or family
7 relationship or provided at events
that are widely attended. An occasion
8 is ``widely attended'' when it is
obvious to the person accepting the meal
9 that the reason for providing the
meal is not a pretext for exclusive or
10 nearly exclusive access to the person;
11 (2) meals
provided at public events in which the person is attending
12 in an official capacity;
13 (3) meals
provided to a person subject to this act when it is obvious
14 such meals are not being provided because
of the person's official posi-
15 tion; and
16 (4) food such as
soft drinks, coffee or snack foods not offered as part
17 of a meal.
18 (d) No person
subject to the provisions of this section shall solicit or
19 accept free or special discount travel or
related expenses from a source
20 outside state government, except:
21 (1) When it is
obvious to the person accepting the same that the free
22 or special discount travel and related
expenses are not being provided
23 because of the person's official position;
or
24 (2) when the
person's presence at a meeting, seminar or event serves
25 a legitimate state purpose or interest and
the person's agency authorizes
26 or would authorize payment for such travel
and expenses.
27 (e) No person
subject to the provisions of this section shall solicit or
28 accept free or special discount tickets or
access to entertainment or sport-
29 ing events or activities such as plays,
concerts, games, golf, exclusive swim-
30 ming, hunting or fishing or other
recreational activities when the free or
31 special discount tickets or access are
provided because of the person's
32 official position. The provisions of this
subsection shall not apply to per-
33 sons whose official position requires or
obliges them to be present at such
34 events or activities.
35 (f)
(1) Violations of the provisions of this section by any
classified
36 employee in the civil service of the state
of Kansas shall be considered
37 personal conduct detrimental to the state
service and shall be a basis for
38 suspension, demotion or dismissal, subject
to applicable state law.
39 (2) Violations of
the provisions of this section by any unclassified em-
40 ployee whose compensation is
subject to be approved by the governor
41 pursuant to K.S.A. 75-2935b, and
amendments thereto, shall subject such
42 employee to discipline up to and including
termination.
43 (3) In addition
to the penalty prescribed under paragraphs (1) and
3
1 (2), the commission on
governmental standards and conduct may assess
2 a civil fine, after proper notice and
an opportunity to be heard, against
3 any person for a violation of this
section, in an amount not to exceed
4 $5,000 for the first violation, not
to exceed $10,000 for the second vio-
5 lation and not to exceed $15,000 for
the third violation and for each
6 subsequent violation. All fines
assessed and collected under this section
7 shall be remitted to the state
treasurer. Upon receipt thereof, the state
8 treasurer shall deposit the entire
amount in the state treasury and credit
9 it to the Kansas commission
on governmental standards and conduct fee
10 fund governmental
ethics fee fund established by K.S.A. 25-4119e, and
11 amendments thereto.
12 Sec.
2. K.S.A. 1999 Supp. 46-269 is hereby amended to read as
fol-
13 lows: 46-269. Each report under K.S.A.
46-268, and amendments thereto,
14 shall disclose the following:
15 (a) The full name
and address of each person who has paid compen-
16 sation for lobbying to the lobbyist or has
paid for expenses of lobbying by
17 the lobbyist during the period
reported.
18 (b) The aggregate
amount or value of all expenditures made, except
19 for expenses of general office overhead, by
the lobbyist or by the lobbyist's
20 employer for or in direct relation to
lobbying during the reporting period,
21 if such expenditures exceed $100.
Individual expenditures of less than $2
22 shall not be required to be reported under
this subsection. Every lobbyist
23 shall keep detailed accounts of all
expenditures required to be reported
24 pursuant to K.S.A. 46-268, and amendments
thereto. Such expenditures
25 shall be reported according to the
following categories of expenditures:
26 (1) Food and
beverages provided as hospitality;
27
(2) entertainment, gifts, honoraria or payments;
28 (3) mass media
communications;
29 (4) recreation
provided as hospitality;
30
(5) communications for the purpose of influencing legislative
or ex-
31 ecutive action; and
32 (6) all other
reportable expenditures made in the performance of
33 services as a lobbyist.With regard to
expenditures for entertainment or
34 hospitality which is primarily recreation,
food and beverages, only
35 amounts expended on a state officer or
employee or on such officer or
36 employee's spouse shall be considered to be
for or in direct relation to
37 lobbying. Notwithstanding the requirements
of this subsection and sub-
38 section (c), no lobbyist shall be
responsible to report any expenditure by
39 the lobbyist's employer of which such
person has no knowledge.
40 (c)
(1) In addition to the information reported pursuant to
subsection
41 (b), each lobbyist expending an
aggregate amount of $100 or more for
42 lobbying in any reporting period shall
report any gift, entertainment or
43 hospitality provided to members of the
legislature, members of the judicial
4
1 branch of government and any
employees of the legislature or judicial
2 branch of government. Such report
shall disclose the full name of the
3 legislator, member of the judicial
branch and employee who received such
4 gift, entertainment or hospitality
and the amount expended on such gift,
5 entertainment or
hospitality.
6 (2) No
report shall be required to be filed pursuant to this
subsection
7 (c) for the following:
8
(A) Meals, the provision of which is motivated by a personal
or family
9 relationship or provided
an [at] event where
all members of the legislature
10 or all members of the house of
representatives or senate have been invited
11 to attend;
12 (B) meals
provided at public events in which the person is attending
13 in an official capacity;
14 (C) meals
provided to a person subject to this section when it is ob-
15 vious such meals are not being provided
because of the person's official
16 position; and
17 (D) food such
as soft drinks, coffee or snack foods not offered as part
18 of a meal.
19 (3) In
addition to the provisions of paragraph (2), the provisions
of
20 this subsection shall not apply to
expenditures for entertainment, hospi-
21 tality in the form of recreation, food
and beverages provided to all mem-
22 bers of the legislature, all members of
a standing or joint committee or all
23 members of a legislative delegation when
all members from a congres-
24 sional district have been invited if
notice of such invitation and function
25 has been published in the listing or
schedule of such events for such mem-
26 bers published and provided by the
division of legislative administrative
27 services for such purposes.
28 (c)
(d) Except as provided by subsection (c), whenever an
individual
29 lobbyist contributes to a single special
event, such lobbyist shall report
30 only the aggregate amount or value of the
expenditure contributed by
31 such lobbyist.
32 (d)
(e) Whenever more than one lobbyist is employed by a
single
33 employer, the reports required by this
section relating to such employer
34 shall be made by only one such lobbyist and
that lobbyist shall be the
35 lobbyist who is most directly connected
with the particular expenditure
36 or gift, honoraria or payment. No
expenditure or gift, honoraria or pay-
37 ment required to be reported by this
section shall be reported by more
38 than one lobbyist.
39 (e)
(f) All accounts, records and documents of the lobbyist
which
40 relate to every expenditure reported or
which should have been reported
41 shall be maintained and preserved by the
lobbyist for a period of five
42 years from the date of the filing of such
report or statement and may be
43 inspected under conditions determined by
the commission.
5
1 Sec.
3. K.S.A. 1999 Supp. 46-237 is hereby amended to read as
fol-
2 lows: 46-237. (a) Except as
provided by this section, no state officer or
3 employee, candidate for state office
or state officer elect shall accept, or
4 agree to accept any (1)
economic opportunity, gift, loan, gratuity, special
5 discount, favor,
hospitality, or service having an aggregate value
of $40 or
6 more in any calendar year or (2)
hospitality in the form of recreation
7 having an aggregate value of $100
or more in any calendar year from any
8 one person known to have a special
interest, under circumstances where
9 such person knows or should know that
a major purpose of the donor is
10 to influence such person in the performance
of their official duties or
11 prospective official duties.
12 (b) Except as
provided by this section, no person with a special in-
13 terest shall offer, pay, give or make any
(1) economic opportunity, gift,
14 loan, gratuity, special discount, favor,
hospitality or service having an ag-
15 gregate value of $40 or more in any
calendar year or (2) hospitality in the
16 form of recreation having an aggregate
value of $100 or more in any
17 calendar year to any state officer
or employee, candidate for state office
18 or state officer elect with a major purpose
of influencing such officer or
19 employee, candidate for state office or
state officer elect in the perform-
20 ance of official duties or prospective
official duties.
21 (c) No person
licensed, inspected or regulated by a state agency shall
22 offer, pay, give or make any economic
opportunity, gift, loan, gratuity,
23 special discount, favor,
hospitality, or service having an aggregate
value
24 of $40 or more in any calendar year to such
agency or any state officer
25 or employee, candidate for state office or
state officer elect of that agency.
26 (d) Hospitality
in the form of recreation, food and beverages is
pre-
27 sumed not to be given to influence a state
officer or employee, candidate
28 for state office or state officer elect in
the performance of official duties
29 or prospective official duties, except when
a particular course of official
30 action is to be followed as a condition
thereon. For the purposes of this
31 subsection, the term recreation
shall not include the providing or the
32 payment of the cost of
transportation or lodging.
33 (e) Except when a
particular course of official action is to be followed
34 as a condition thereon, this section shall
not apply to: (1) Any contribution
35 reported in compliance with the campaign
finance act; or (2) a commer-
36 cially reasonable loan or other commercial
transaction in the ordinary
37 course of business.
38 (f) No state
officer or employee shall accept any payment of honoraria
39 for any speaking engagement except that a
member of the state legislature
40 or a part-time officer or employee of the
executive branch of government
41 shall be allowed to receive reimbursement
in the preparation for and the
42 making of a presentation at a speaking
engagement in an amount fixed
43 by the commission prior to the acceptance
of the speaking engagement.
6
1 Nothing in this section shall be
construed to prohibit the reimbursement
2 of state officers and employees for
reasonable expenses incurred in at-
3 tending seminars, conferences and
other speaking engagements.
4 (g) The
provisions of this section shall not be applicable to or
prohibit
5 the acceptance of gifts from
governmental agencies of foreign nations
6 except that any gift accepted from
such foreign governmental agency,
7 having an aggregate value of $100 or
more, shall be accepted on behalf
8 of the state of Kansas.
9 (h) No
legislator shall solicit any contribution to be made to any or-
10 ganization for the purpose of paying for
travel, subsistence and other
11 expenses incurred by such legislator or
other members of the legislature
12 in attending and participating in meetings,
programs and activities of such
13 organization or those conducted or
sponsored by such organization, but
14 nothing in this act or the act of which
this act is amendatory shall be
15 construed to prohibit any legislator from
accepting reimbursement for
16 actual expenses for travel, subsistence,
hospitality, entertainment and
17 other expenses incurred in attending and
participating in meetings, pro-
18 grams and activities sponsored by the
government of any foreign nation,
19 or any organization organized under the
laws of such foreign nation or
20 any international organization or any
national, nonprofit, nonpartisan or-
21 ganization established for the purpose of
serving, informing, educating
22 and strengthening state legislatures in all
states of the nation, when paid
23 from funds of such organization and nothing
shall be construed to limit
24 or prohibit the expenditure of funds of and
by any such organization for
25 such purposes.
26 New Sec.
4. (a) (1) ``Professional services'' means services
performed
27 under a contract with an agency of the
state by any of the following:
28 (A) A certified
public accountant;
29 (B) an
attorney;
30 (C) a physician
or other practitioner who is required to be licensed
31 by the board of healing arts; or
32 (D) a
consultant.
33
(2) ``Consultant'' means an individual or firm providing
contractual
34 services in the form of professional or
technical advice or opinions.
35 (b) Except as
provided in subsections (c) and (d), all contracts for
36 professional and consultant services shall
be negotiated in accordance
37 with the provisions of K.S.A. 75-37,102,
and amendments thereto.
38 (c) The
provisions of subsection (b) shall not apply to any contract
39 for professional or consultant services
that the director of purchases de-
40 termines meets one or more of the criteria
established in subsections (a)
41 and (h) of K.S.A. 75-3739, and amendments
thereto. When the director
42 of purchases approves a contract for
professional or consultant services
43 under this subsection, the director may
delegate authority to the agency
7
1 to enter into the contract under
conditions and procedures prescribed by
2 the director.
3 (d) The
provisions of subsection (b) shall not apply to any contract
4 for professional or consultant
services that is not anticipated to exceed
5 $25,000 in any fiscal year. Such a
contract shall be entered into by the
6 state agency on the basis of
competitive negotiations with at least two
7 individuals or firms unless the head
of that state agency determines that
8 competitive negotiations are not in
the best interest of the state. The
9 agency head shall make a report to
the director of purchases at least once
10 in each calendar quarter of each contract
for professional or consultant
11 services that exceeds $5,000 and is entered
into without competitive
12 negotiations.
13 (e) The director
of purchases shall prepare a detailed report at least
14 once in each calendar quarter of each
contract for professional or con-
15 sultant services that exceeds $5,000 and is
entered into under subsection
16 (c) and all contracts for professional or
consultant services reported to
17 the director under subsection (d). The
director of purchases shall submit
18 the report to the legislative coordinating
council, the chairperson of the
19 committee on ways and means of the senate,
the chairperson of the com-
20 mittee on appropriations of the house of
representatives and the chair-
21 person of the Kansas performance review
board.
22 (f) All contracts
for architectural services, engineering services, con-
23 struction management or ancillary technical
services entered into by an
24 agency of the state shall be entered into
in accordance with the applicable
25 provisions of K.S.A. 75-430a, 75-1250
through 75-1266 and 75-5801
26 through 75-5807, and amendments
thereto.
27 New Sec.
5. If a state agency expends grant funds to purchase goods
28 or services for which the state agency
receives a direct service or a tangible
29 asset, the procurement of those goods or
services shall be subject to
30 K.S.A. 75-3739, 75-37,102 and section 1 and
amendments thereto, or
31 other applicable statutes relating to
procurement of those goods and
32 services.
33 New Sec.
6. Nothing in section 5
[4] or section 6
[5], and amend-
34 ments thereto, shall allow federal grant
moneys to be handled differently
35 from any other moneys of the state unless
the requirements of the ap-
36 plicable federal grant specifically require
such federal moneys to be han-
37 dled differently.
38 [New Sec. 7. (a) This
section shall be known and may be cited as
39 the private attorney retention
sunshine act.
40 [(b) For
the purposes of this section:
41
[(1) ``Contract for legal services'' means a contract in which
a
42 fee is paid to an attorney or firm of
attorneys, in the form of a flat,
43 hourly or contingent fee and any
expenses of such attorney or such
8
1 firm of attorneys.
2
[(2) ``State agency'' means any state office, officer,
department,
3 board, commission, institution,
bureau, agency, authority, state
4 agent or any division of a
state agency.
5
[(c) Except as provided by K.S.A. 75-3739, and
amendments
6 thereto, any state agency that
wishes to enter into a contract for
7 legal services under this
section with an attorney or a firm of attor-
8 neys to perform legal services
on behalf of this state, which contract
9 is reasonably expected by the
state agency to result in legal fees of
10 $7,500 or more, shall not do so until
an open and competitive bid-
11 ding process has been undertaken. The
competitive bidding process
12 under this section means that the
state agency, unless otherwise
13 required by law, shall select at
least two qualified attorneys or firms
14 of attorneys based upon the
attorney's or firm's experience with
15 similar litigation, expertise
generally, the number of qualified at-
16 torneys of such firm, if the number
of qualified attorneys is a rele-
17 vant factor with respect to the
proposed legal services, and such
18 other factors as the secretary of
administration may specify by rules
19 and regulations. The state agency
shall select from among such at-
20 torneys or firms the attorney or firm
which submits the lowest
21 hourly rate bid or total cost to
provide such services.
22 [(d) Prior
to entering a contract for legal services where the
23 amount of the fees and expenses paid
to an attorney or firm of at-
24 torneys exceeds or may exceed
$1,000,000, the state agency shall
25 submit the proposed contract to the
legislative budget committee.
26 Within 30 days after submission of
such contract, the committee
27 may hold a public hearing on the
proposed contract and shall issue
28 a report to the state agency
submitting the contract. The report shall
29 include any proposed changes to the
proposed contract suggested
30 by the committee. The state agency
shall review the report and
31 adopt a final contract as deemed
appropriate in view of the report
32 and shall file the final contract
with the legislative budget
33 committee.
34 [If the proposed
contract does not contain the changes proposed
35 by the committee, the state agency
shall submit with the final con-
36 tract a letter stating the reasons
why such proposed changes were
37 not adopted. The state agency shall
not enter into the final contract
38 until at least 45 days after the date
of submission of the final con-
39 tract to the legislative budget
committee.
40 [If the
legislative budget committee makes no suggested changes
41 to the proposed contract or fails to
report any suggested changes
42 within 60 days of the submission of
the proposed contract to such
43 committee, the state agency may enter
into the contract.
9
1
[(e) At the conclusion of any legal proceeding for which a
state
2 agency retained an attorney or
firm of attorneys on a contingency
3 fee basis, such attorney or
firm shall submit a statement disclosing
4 the hours worked on the case,
expenses incurred, the aggregate fee
5 amount and a breakdown as to
the hourly rate, based on hours
6 worked divided into fee
recovered, less expenses.
7 [(f)
(1) Except as provided in paragraph (2) of this
subsection,
8 a state agency shall not pay
any fees or expenses in excess of $1,000
9 per hour for legal services. In
cases where a disclosure statement
10 submitted pursuant to subsection (f)
indicates an hourly rate in
11 excess of $1,000 per hour, the fee
amount shall be reduced to an
12 amount equivalent to $1,000 per
hour.
13 [(2) The
limitation imposed under paragraph (1) of this subsec-
14 tion, shall not apply to payments
under a contract for legal services
15 which are paid on a contingency fee
basis.
16
[(g) Nothing in this section shall be construed to expand
the
17 authority of any state agency to
enter into contracts where no such
18 authority previously
existed.]
19 Sec. 7.
[8.] K.S.A. 1999 Supp. 46-237, 46-237a and
46-269 are
20 hereby repealed.
21 Sec. 8.
[9.] This act shall take effect and be in force
from and after
22 its publication in the statute book.