Report Title:

Offenses Against Public Administration

Description:

Creates 2 new offenses related to illegal compensation of public servants: (1) bribery in the second degree; and (2) unlawful gifts to public servants by persons subject to their jurisdiction. (SD1)

THE SENATE

S.B. NO.

2848

TWENTY-SECOND LEGISLATURE, 2004

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO OFFENSES AGAINST PUBLIC ADMINISTRATION.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 710, Hawaii Revised Statutes, is amended by adding to part IV two new sections to be appropriately designated and to read as follows:

"710-   Bribery in the second degree. (1) A person commits the offense of bribery in the second degree if the person:

(a) Directly or indirectly gives, offers, or promises any pecuniary benefit to a public servant for any official act performed or to be performed by that public servant, or as provided by law for the proper discharge of official duty; or

(b) Being a public servant, directly or indirectly demands, seeks, knowingly receives, or knowingly agrees to receive any personal pecuniary benefit for or because of any official act performed or to be performed by the public servant, or as provided by law for the proper discharge of official duty.

(2) It is a defense to a prosecution under subsection (1) that the accused conferred or agreed to confer the pecuniary benefit as a result of extortion or coercion.

(3) For purposes of this section, "public servant" includes persons who occupy the position of public servant as defined in section 710-1000(15), former public servants, and persons who have been elected, appointed, or designated to become a public servant although not yet occupying that position.

(4) This section shall not apply to political campaign contributions that comply with state law or trivial benefits incidental to personal, professional, or business contacts and involving no substantial risk of undermining official impartiality.

(5) Bribery in the second degree is a class C felony. A person convicted of violating this section, notwithstanding any law to the contrary, shall not be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853, and, if sentenced to probation, rather than an indeterminate term of imprisonment, the person's conditions of probation shall include a term of imprisonment of not less than thirty days without possibility of suspension of sentence. A person convicted under this section shall be sentenced in accordance with chapter 706, provided that the maximum fine that may be imposed is $50,000.

710-   Unlawful gift to public servants by persons subject to their jurisdiction. (1) A person commits the offense of unlawful gift to public servants by persons subject to their jurisdiction if:

(a) The person, while:

(i) In a department or agency exercising regulatory functions;

(ii) Conducting inspections or investigations;

(iii) Carrying on civil or criminal litigation on behalf of the government; or

(iv) Having custody of prisoners,

knowingly solicits, accepts, or agrees to accept any pecuniary benefit from a person known to be subject to such regulation, inspection, investigation, or custody, or against whom such litigation is known to be pending or contemplated;

(b) The person, having any discretionary function to perform in connection with contracts, purchases, payments, claims, or other pecuniary transactions of the government, knowingly solicits, accepts, or agrees to accept any pecuniary benefit from any person known to be interested in or likely to become interested in any such contract, purchase, payment, claim, or transaction;

(c) The person, having a judicial or administrative authority, or the person, while a public servant employed by or in a court or other tribunal having such authority or participating in the enforcement of its decisions, knowingly solicits, accepts, or agrees to accept any pecuniary benefit from a person known to be interested in or likely to be interested in any matters before the public servant or a tribunal with which the public servant is associated;

(d) The person, while a legislator or public servant employed by the legislature or by any committee or agency thereof, knowingly solicits, accepts, or agrees to accept any pecuniary benefit from the person known to be interested in a bill, transaction, or proceeding, pending or contemplated, before the legislature or any committee or agency thereof; or

(e) The person knowingly confers, offers to confer, agrees to confer, or offers to agree to confer a pecuniary benefit to another person who is prohibited by this subsection from receiving the pecuniary benefit.

(2) Unlawful gift to public servants by persons subject to their jurisdiction is a class C felony.

(3) This section shall not apply to:

(a) Gifts received by will or intestate succession;

(b) Gifts received by way of distribution of any inter vivos or testamentary trust established by a spouse or ancestor;

(c) Gifts from a spouse, any relative within four degrees of consanguinity, or the spouse of such a relative, but not including a gift from any person who is acting as an agent or intermediary for another person not covered by this subsection;

(d) Political campaign contributions that comply with state law;

(e) Anything available to or distributed to the public generally without regard to the official status of the recipient;

(f) Exchanges of approximately equal value on holidays, birthdays, or special occasions;

(g) Fees prescribed by law to be received by a public servant, or any other benefit for which the recipient gives legitimate consideration or to which the recipient is otherwise legally entitled;

(h) Trivial benefits incidental to personal, professional, or business contacts and involving no substantial risk of undermining official impartiality; or

(i) Any gift the value of which is less than $250 on a single occasion, or multiple gifts with an aggregate value of less than $1,000 in a single calendar year, that, considering the totality of the circumstances, involve no substantial risk of undermining official impartiality."

SECTION 2. Section 710-1040, Hawaii Revised Statutes, is amended to read as follows:

"710-1040 Bribery[.] in the first degree. (1) A person commits the offense of bribery in the first degree if:

(a) The person confers, or offers or agrees to confer, directly or indirectly, any pecuniary benefit upon a public servant with the intent to influence the public servant's vote, opinion, judgment, exercise of discretion, or other action in the public servant's official capacity; or

(b) While a public servant, the person solicits, accepts, or agrees to accept, directly or indirectly, any pecuniary benefit with the intent that the person's vote, opinion, judgment, exercise of discretion, or other action as a public servant will thereby be influenced.

(2) It is a defense to a prosecution under subsection (1) that the accused conferred or agreed to confer the pecuniary benefit as a result of extortion or coercion.

(3) For purposes of this section, "public servant" includes in addition to persons who occupy the position of public servant as defined in section 710-1000(15), former public servants and persons who have been elected, appointed, or designated to become a public servant although not yet occupying that position.

(4) Bribery in the first degree is a class [C] B felony. A person convicted of violating this section, notwithstanding any law to the contrary, shall not be eligible for a deferred acceptance of guilty plea or nolo contendere plea under chapter 853, and, if sentenced to probation, rather than an indeterminate term of imprisonment, the person's conditions of probation shall include a term of imprisonment of one year without possibility of suspension of sentence. A person convicted under this section shall be sentenced in accordance with chapter 706, except that the maximum fine that may be imposed is $100,000."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.