Report Title:

Theft; Public Funds; Public Contracts

Description:

Requires certain state procurement contracts to be reviewed and approved by the attorney general to ensure expenditure safeguard provisions are included; clarifies theft offense to include unauthorized expenditure of public moneys by persons entrusted with expenditure of those moneys.

THE SENATE

S.B. NO.

3186

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO UNAUTHORIZED EXPENDITURES OF PUBLIC FUNDS.

 

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

SECTION 1. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to part I be appropriately designated and to read as follows:

"§103D-   Attorney general review and approval. (a) Prior to the signing of any state contract that is subject to this chapter that includes entrusting public moneys to a third party or quasi-public entity, including but not limited to a board, agency, or authority, to expend or to contract to expend public moneys on behalf of the State, the contract shall be submitted to the attorney general for review and approval of the terms and conditions of the contract.

(b) A contract under subsection (a) shall include provisions to ensure that public moneys are:

(1) Expended solely for the purposes of the contract;

(2) Adequately accounted for in accordance with the generally accepted accounting principles of the United States of America (GAAP);

(3) Subject to an audit by the auditor; and

(4) Subject to investigation of any irregular expenditures by the attorney general.

(c) The attorney general shall enforce compliance with the contract requirements of subsection (b).

(d) The state agency that is a party to the contract shall promptly submit all fiscal and other reports on the contract to the attorney general, who shall promptly review them for compliance, and take appropriate action, including prosecution under subsection (c) or section 780-830."

SECTION 2. Section 708-830, Hawaii Revised Statutes, is amended to read as follows:

"§708-830 Theft. A person commits theft if the person does any of the following:

(1) Obtains or exerts unauthorized control over property. A person obtains, or exerts control over, the property of another with intent to deprive the other of the property.

(2) Property obtained or control exerted through deception. A person obtains, or exerts control over, the property of another by deception with intent to deprive the other of the property.

(3) Appropriation of property. A person obtains, or exerts control over, the property of another that the person knows to have been lost or mislaid or to have been delivered under a mistake as to the nature or amount of the property, the identity of the recipient, or other facts, and, with the intent to deprive the owner of the property, the person fails to take reasonable measures to discover and notify the owner.

(4) Obtaining services by deception. A person intentionally obtains services, known by the person to be available only for compensation, by deception, false token, or other means to avoid payment for the services. When compensation for services is ordinarily paid immediately upon the rendering of them, absconding without payment or offer to pay is prima facie evidence that the services were obtained by deception.

(5) Diversion of services. Having control over the disposition of services of another to which a person is not entitled, the person intentionally diverts those services to the person's own benefit or to the benefit of a person not entitled thereto.

(6) Failure to make required disposition of funds.

(a) A person intentionally obtains property from anyone upon an agreement, or subject to a known legal obligation, to make specified payment or other disposition, whether from the property or its proceeds or from the person's own property reserved in equivalent amount, and deals with the property as the person's own and fails to make the required payment or disposition. It does not matter that it is impossible to identify particular property as belonging to the victim at the time of the defendant's failure to make the required payment or disposition. A person's status as an officer or employee of the government or a financial institution is prima facie evidence that the person knows the person's legal obligations with respect to making payments and other dispositions. If the officer or employee fails to pay or account upon lawful demand, or if an audit reveals a falsification of accounts, it shall be prima facie evidence that the officer or employee has intentionally dealt with the property as the officer's or employee's own.

(b) A person obtains personal services from an employee upon agreement or subject to a known legal obligation to make a payment or other disposition of funds to a third person on account of the employment, and the person intentionally fails to make the payment or disposition at the proper time.

(7) Receiving stolen property. A person intentionally receives, retains, or disposes of the property of another, knowing that it has been stolen, with intent to deprive the owner of the property. It is prima facie evidence that a person knows the property to have been stolen if, being a dealer in property of the sort received, the person acquires the property for a consideration that the person knows is far below its reasonable value.

(8) Shoplifting.

(a) A person conceals or takes possession of the goods or merchandise of any store or retail establishment, with intent to defraud.

(b) A person alters the price tag or other price marking on goods or merchandise of any store or retail establishment, with intent to defraud.

(c) A person transfers the goods or merchandise of any store or retail establishment from one container to another, with intent to defraud.

The unaltered price or name tag or other marking on goods or merchandise, duly identified photographs or photocopies thereof, or printed register receipts, shall be prima facie evidence of value and ownership of such goods or merchandise. Photographs of the goods or merchandise involved, duly identified in writing by the arresting police officer as accurately representing such goods or merchandise, shall be deemed competent evidence of the goods or merchandise involved and shall be admissible in any proceedings, hearings, and trials for shoplifting, to the same extent as the goods or merchandise themselves.

(9) Unauthorized expenditure of public moneys. A person or entity entrusted with the expenditure of public moneys, whether by contract or law, expends those moneys without authorization from the State or any of its political subdivision whose money is involved. Without authorization means the expenditure had no permission in contract or law. It shall not be a defense that the State or its political subdivision had knowledge of or otherwise acquiesced in the expenditure."

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. New statutory material is underscored.

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

INTRODUCED BY:

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