2008 Ballot Issue
THE COMPLETE TEXT OF INITIATIVE NO. 156
BE IT ENACTED BY THE PEOPLE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Short title. [Sections 1 through 8] may be cited as the “Montana Clean and Open Government Act”.
NEW SECTION. Section 2. Purpose. To avoid corruption or the appearance of corruption and to increase economy in government contracting and procurement activities, to maximize to the fullest extent possible the purchasing power of public funds, and to increase public confidence in those activities, [sections 1 through 8]:
(1) require contractors to abide by open transparency and reporting requirements, including providing information sufficient for summaries of all government contracts to be published on the internet; and
(2) specifically require no-bid government contractors (and political action committees or holders of separately segregated funds created or controlled by them) to contractually agree to refrain from making contributions to fund state and local political parties and candidates, and if a contractor contributes to influence a ballot question, that disqualifies the contractor from consideration for any no-bid contract that relates to the ballot issue.
NEW SECTION. Section 3. Definitions. As used in [sections 1 through 8], the following definitions apply:
(1) "Commissioner" means the commissioner of political practices.
(2) "Contractor" means any nongovernmental entity that is party to any no-bid government contracts, or a person in control of a party to any no-bid government contracts that exceed a financial threshold of $25,000 for goods servicesor $75,000 for building contracts. The threshold amounts are cumulative and include all no-bid government contracts with any government entity of the state involving the contractor or person in control of multiple contracts during a calendar year.
(3) "Contribution" has the meaning provided in 13-1-101.
(4) “Electioneering” means making, causing to be made, or inducing by any means a contribution to a political party, candidate, or to any person to influence the election or defeat of a candidate for state or local office.
(5) "Government entity" means state government and all departments of the state and political subdivisions, including local governments with general powers and also specifically includes local governments with self-governing powers, as well as all departments, commissions, councils, boards, bureaus, committees, institutions, agencies, government corporations, other entities, instrumentalities, and public officials of the legislative, executive, or judicial branch of this state and its political subdivisions, including the board of regents and the Montana university system, school districts, or special districts.
(6) "Immediate family member" means any person related or connected by consanguinity within the fourth degree or by affinity within the second degree.
(7) "No-bid government contract”, also known as “sole-source government contract”, means any contract with a government entity awarded without the benefit of a public and open competitive bidding process that requires the solicitation of at least three bids prior to awarding the contract. The term does not include employment contracts with individual employees, but does include collective bargaining agreements with any labor organization or entity representing employees if the contract or agreement confers an exclusive representative status. The term also includes contracts or agreements entered into by the department of public health and human services and services related to building or construction contracts. Contract and procurement requirements may not be artificially divided or separated so as to subvert the provisions required by this term.
(8) "Person in control" means a person who controls 10% or more of the shares or interest in the party holding a government contract and includes that party's officers, directors, trustees, partners, political action committees, or separate segregated funds created or controlled by that party or, in the case of collective bargaining agreements, the labor organization and any funds created or controlled by the person or the labor organization.
NEW SECTION. Section 4. Transparency in government contracting -- rulemaking.
(1) Each nongovernmental party to a contract with a government entity for goods and services exceeding $25,000 or a building contract exceeding $75,000shall promptly submit to the commissioner a "Summary of Government Contract". Submission may be by e-mail, facsimile, or other electronic transmission, must accurately contain the required information, and must be in a form substantially as follows:
SUMMARY OF GOVERNMENT CONTRACT
1. PURPOSE OF CONTRACT
Brief description of contract and goods provided or services performed:
2. NAME AND ADDRESS OF GOVERNMENT PARTY TO CONTRACT
(Name, Address, City, State, Zip Code)
3. NAME AND ADDRESS OF CONTRACTOR
(Name, Address, City, State, Zip Code)
4. NAME AND ADDRESS OF EACH “PERSON IN CONTROL” OF CONTRACT
(Name, Address, City, State, Zip Code)
5. TERM/ESTIMATED DURATION OF CONTRACT
When did the contract start and when will it end?
Start: ______________ END: _______________
6. TOTAL EXPECTED AMOUNT OF CONTRACT PAYMENTS: $_____
If multiyear contract, prorate expected amount accrued for each year:
20__ $______ 20__ $______ 20__ $______ 20__ $______.
7. THE CONTRACT IS:
( ) a no-bid contract; or
( ) A contract awarded after a public and open competitive bidding process solicits at least three bids prior to awarding the contract.
(2) As an aid to enforcement of [sections 1 through 8], the commissioner shall promptly publish and maintain summaries of government contracts subject to [sections 1 through 8] on the commissioner's official internet website. Contractors shall update the summary annually if necessary to accurately maintain the information. The commissioner may promulgate rules to facilitate this section to disseminate any information not in violation of federal law, trade secrets, or intellectual property rights.
NEW SECTION. Section 5. Electioneering by contractors -- rulemaking. (1) To reduce corruption or the presumption of improprieties between government contractors and government officials:
(a) no-bid government contractors, within the terms of each contract, shall agree for the term of the contract and 2 years after the termination date or last contract payment, whichever is later, that the contractor or person in control shall cease to engage in electioneering activities to fund state and local political parties or candidates. The contractor or person in control shall agree not to use an immediate family member, political committee, or any other proxy to make a contribution or earmark a contribution.
(b) any person who makes, causes to be made, or induces by any means a contribution intended to qualify a ballot issue or influence the results of an election on a ballot issue is not qualified to become a contractor or enter into a no-bid government contract relating to that particular issue.
(2) The commissioner has the authority to promulgate rules to implement this section.
NEW SECTION. Section 6. Citizen complaints of suspected anticompetitive practices. If for any reason a person suspects collusion or anticompetitive practices by a government entity among any contractors engaging in electioneering activities in violation of [sections 1 through 8] to a candidate's political campaign, an independent political committee or other political committee, or a ballot issue campaign, the citizen may file a complaint with the commissioner pursuant to 13-37-111 or rules adopted by the commissioner. The person filing the complaint has a private right of action if the commissioner fails to act or does not act on the complaint by issuing statements of fact and an order within 60 days of filing of the complaint.
NEW SECTION. Section 7. Penalties. (1) A person who violates any provision or agreement under [sections 1 through 8] is liable in a civil action brought by the commissioner or county attorney or by a private citizen if the commissioner or county attorney fails to act or fails to act within 60 days on a complaint. The liability is the greater of $500 or three times the amount of the unlawful contributions. All money collected under this section must be deposited in the state general fund. If a person responsible for the bookkeeping of a no-bid contractor or a person in control of a contract or if a person acting on behalf of a government obtains knowledge of a contribution made or accepted in violation of [sections 1 through 8] and that person fails to notify the commissioner within 10 days of learning of the contribution, then that person bears joint and several liability for any costs, expenses, or losses.
(2) In addition to the penalties provided in subsection (1), a person found in violation of [sections 1 through 8] is disqualified to enter into a no-bid government contract for a period of 3 years. This period of disqualification may be suspended by the governor, but only during periods of a declared emergency.
NEW SECTION. Section 8. Applicability to elected officials and public officials and government employees in control of contracts. It is considered corrupt misconduct and malfeasance as provided in Title 45, chapter 7 or any other laws of the State of Montana for an elected official, public official, or government employee to violate [sections 1 through 8] or to actively engage in inducing or concealing a violation of [sections 1 through 8].
NEW SECTION. Section 9. Codification instruction. [Sections 1 through 8] are intended to be codified as an integral part of Title 13, and the provisions of Title 13 apply to [sections 1 through 8].
NEW SECTION. Section 10. Saving clause. This act does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before the effective date of this act.
NEW SECTION. Section 11. Severability. If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 12. Effective date. This act is effective upon approval by the electorate.