08 LC 28
4278S
The
Senate Government Oversight Committee offered the following substitute to HB
1113:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Part 1 of Article 3 of Chapter 5 of Title 50 of the Official Code of
Georgia Annotated, relating to general authority, duties, and procedure with
regard to state purchasing, so as to prohibit the use of state funds by purchase
orders, government contracts, credits cards, charge cards, or debit cards, or
other such payment vehicles for personal benefit or gain; to provide
definitions; to provide for the requirements of a state purchasing card program;
to provide penalties for violators; to authorize the promulgation of rules and
regulations; to amend Article 2 of Chapter 7 of Title 45 of the Official Code of
Georgia Annotated, relating to reimbursements for public officers and employees,
so as to prohibit state officers and employees from misappropriating advances of
public funds, submitting fraudulent reimbursement requests, or approving
fraudulent reimbursement requests; to provide for penalties; to provide for
related matters; to provide for effective dates and applicability; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Part
1 of Article 3 of Chapter 5 of Title 50 of the Official Code of Georgia
Annotated, relating to general authority, duties, and procedure with regard to
state purchasing, is amended by revising Code Section 50-5-80, relating to
personal purchases or sales through the department for individual ownership, all
department purchases remaining state property, penalty, and applicability, as
follows:
"50-5-80.
(a)
As used in this Code section, the term 'person' includes natural persons, firms,
partnerships, corporations, or associations.
(b)
It shall be unlawful for any
employee or
official of the state or any other person to purchase, directly or indirectly,
through the Department of Administrative Services, or through any office,
agency, department, board, bureau, commission, institution, authority, or other
entity of the state, any article, material, merchandise, ware, commodity, or
other thing of value for the personal or individual ownership of himself or
herself or other person or persons. All articles, materials, merchandise,
wares, commodities, or other things of value purchased, directly or indirectly,
by or through the Department of Administrative Services or by or through any
office, agency, department, board, bureau, commission, institution, authority,
or other entity of the state shall be and remain the property of the state until
sold or disposed of by the state in accordance with the laws governing the
disposition or sale of other state
property
person to
obtain for his or her own personal benefit, or for the benefit of any other
person, any goods, services or other things of value, through any resource or
method established pursuant to this article, including, but not limited to,
purchase orders, government contracts, credit cards, charge cards, or debit
cards.
(c)(1)
It shall be
unlawful for any person knowingly to sell or deliver any article, material,
merchandise, ware, commodity, or other thing of value to any person, directly or
indirectly, by or through the Department of Administrative Services or by or
through any office, agency, department, board, bureau, commission, institution,
authority, or other entity of the state for the individual and personal
ownership of such person or other person or persons except that property of the
state may be sold or otherwise disposed of in accordance with the laws governing
the sale or other disposition of state
property.
Any person who
violates subsection (b) of this Code section by obtaining any goods, services,
or other things of value in the aggregate value of less than $500.00 shall be
guilty of a misdemeanor of a high and aggravated nature which shall be
punishable by not more than 12 months´ imprisonment and a fine not to
exceed $5,000.00. In addition to the foregoing criminal penalties, any such
person shall also be subject to immediate termination of state employment and
shall owe restitution to the state equal to the amount of such unlawful
purchases, plus interest to be assessed at a rate of 12 percent per annum to be
calculated from the date each unlawful purchase was made.
(2)
Any person who violates subsection (b) of this Code section by obtaining any
goods, services, or other things of value in the aggregate value of $500.00 or
more shall be guilty of a felony which shall be punishable by not less than one
nor more than 20 years´ imprisonment and a fine not to exceed $50,000.00 or
triple the amount of such unlawful purchases, whichever is greater. In addition
to the foregoing criminal penalties, any such person shall also be subject to
immediate termination of state employment and shall owe restitution equal to the
amount of such unlawful purchases, plus interest to be assessed at a rate of 12
percent per annum to be calculated from the date each such unlawful purchase was
made. If any person who is convicted of a felony pursuant to this subsection is
a participant in any government funded retirement system, such person´s
retirement benefits shall be paid to the state until such fines, restitution,
and interest have been paid in full.
(d)(1)
Any person
who violates any provision of this Code section shall be guilty of a
misdemeanor.
Any person who
knowingly assists another person in violating subsection (b) of this Code
section shall be guilty of a misdemeanor of a high and aggravated nature which
shall be punishable by not more than 12 months´ imprisonment and a fine not
to exceed $5,000.00 if the unlawfully purchased goods, services, or other things
of value are valued in the aggregate of less than $500.00. In addition to such
criminal penalties, any such person shall also be subject to immediate
termination of state employment and shall owe restitution equal to the amount of
such unlawful purchases, plus interest to be assessed at a rate of 12 percent
per annum to be calculated from the date each unlawful purchase was
made.
(2)
Any person who knowingly assists another person in violating subsection (b) of
this Code section shall be guilty of a felony which shall be punishable by not
less than one nor more than 20 years´ imprisonment and a fine not to exceed
$50,000.00 or triple the amount of the unlawful purchases, whichever is greater,
if the goods, services, or other things of value are in the aggregate value of
$500.00 or more. In addition to such criminal penalties, any such person shall
also be subject to immediate termination of state employment and shall owe
restitution for the amount of such unlawful purchases, plus interest to be
assessed at a rate of 12 percent per annum to be calculated from the date each
unlawful purchase was made. If any person who is convicted of a felony pursuant
to this subsection is a participant in any government funded retirement system,
such person´s retirement benefits shall be paid to the state until such
fines, restitution, and interest have been paid in full.
(e)
This Code section shall not apply to any official employee purchase program for
technology resources facilitated by and through the Georgia Technology Authority
for state employees and public school employees of county or independent boards
of education."
SECTION
2.
Said
part is further amended by adding a new Code section to read as
follows:
"50-5-83.
(a)
As used in this Code section, the term:
(1)
'Department' means the Department of Administrative Services.
(2)
'Purchasing card' means a credit or debit card issued by a credit card company,
bank, or other financial institution and provided by the State of Georgia or any
of its departments or agencies under the State of Georgia Purchasing Card
Program to state employees for the purpose of making purchases on behalf of such
departments or agencies or the state.
(b)
Any purchasing card program established by the department or by any other
department or agency of the state shall conform to the following
requirements:
(1)
Purchasing cards shall only be issued to state employees whose job duties
require the use of a purchasing card;
(2)
Each department or agency of the state that allows the use of purchasing cards
by its employees shall develop policies and procedures consistent with
guidelines developed by the department pursuant to this Code section to identify
those job positions within each department or agency of the state that would
require the use of a purchasing card;
(3)
Each employee receiving a purchasing card shall be required to sign an ethical
behavior agreement for the use of the card which shall be developed by the
department;
(4)
Each department or agency of the state that allows its employees to use
purchasing cards shall provide for the review of all purchases on such cards,
shall maintain receipts for each purchase, and shall maintain a log showing each
purchase, the relevant vendor´s name, the item purchased, the date of the
purchase, the amount of the purchase, the name of the employee making the
purchase, and any other information that shall be specified by the
department;
(5)
Purchases made on purchasing cards shall be reviewed and approved by supervisory
personnel at least quarterly;
(6)
Purchasing cards shall not be used for items over $5,000.00 unless the item
is:
(A)
Purchased pursuant to a valid state contract; and
(B)
Purchased in compliance with state procurement policy;
(7)
Purchasing cards shall not be used to purchase gift cards;
(8)
Purchasing cards shall not be used to purchase gift cards, alcoholic beverages,
tobacco products, or personal items that are not job related, and state
contracts for purchasing cards shall contain such prohibitions on the use of
such purchasing cards;
(9)
The department shall develop a training manual on the use of purchasing cards
which shall instruct users of purchasing cards on the maximum value utilization
of such purchasing cards and employees who use such purchasing cards shall
comply with the provisions of such manual;
(10)
Departments and agencies of the state shall review not less than annually all
purchasing cards issued to their employees and shall eliminate purchasing cards
for employees who demonstrate consistently low usage of such purchasing
cards;
(11)
Departments and agencies of the state which have more than 100 purchasing cards
issued to employees shall establish goals to reduce such number of purchasing
cards by at least 10 percent by December 31, 2009;
(12)
Employees hired for job positions for which purchasing cards are issued shall be
subjected to criminal background checks before hiring and a credit check shall
be completed by the hiring department or agency on all employees to whom a
purchasing card is issued prior to issue;
(13)
Purchasing cards shall be issued only to employees of departments and agencies
of the state and no purchasing cards shall be issued to employees of foundations
associated with departments and agencies of the state;
(14)
Each purchase made with a purchasing card shall be accompanied by a receipt or
other documentation listing each item purchased, the purchase price for each
item, and any taxes, fees, or other amounts paid in connection with such
purchase; and
(15)
With respect to any purchase made with a purchasing card, if the employee to
whom such card was issued does not provide documentation meeting the
requirements of paragraph (14) of this subsection to his or her supervisor for
recording on the purchasing log required to be maintained as provided in
paragraph (4) of this subsection, such employee shall be personally responsible
for such purchase.
(c)
Any employee of a department or agency of the state who knowingly:
(1)
Uses a purchasing card for personal gain;
(2)
Purchases items on such purchasing card that are not authorized for purchase by
such employee;
(3)
Purchases items in violation of this Code section; or
(4)
Retains for such employee´s personal use a rebate or refund from a vendor,
bank, or other financial institution for a purchase or the use of a purchasing
card
shall
be subject to immediate termination of employment, restitution for the amount of
the improper purchases, and criminal prosecution. Any person violating this
subsection shall be guilty of a misdemeanor of a high and aggravated nature if
the value of the items improperly purchased or retained is less than $500.00 in
the aggregate and shall be guilty of a felony if the value of the items
improperly purchased or retained is $500.00 or more in the aggregate and, upon
conviction of such felony, shall be sentenced to not less than one nor more than
20 years imprisonment, a fine not to exceed $50,000.00, or both.
(d)
An employee´s supervisor who knowingly intentionally, willfully, wantonly,
or recklessly allows or who conspires with an employee who is issued a
purchasing card to violate subsection (c) of this Code section shall be subject
to immediate termination of employment and criminal prosecution. Any person
violating this subsection shall be guilty of a misdemeanor of a high and
aggravated nature if the value of the items improperly purchased or retained is
less than $500.00 in the aggregate and shall be guilty of a felony if the value
of the items improperly purchased or retained is $500.00 or more in the
aggregate and, upon conviction of such felony, shall be sentenced to not less
than one nor more than 20 years imprisonment, a fine not to exceed $50,000.00,
or both.
(e)
The department is authorized to promulgate such rules and regulations as
necessary to implement this Code section."
SECTION
3.
Article
2 of Chapter 7 of Title 45, relating to reimbursement expenses for public
officers and employees, is amended by revising Code Section 45-7-32 of the
Official Code of Georgia Annotated, relating to reimbursement for expenses of
lodging and airfare and penalty for violations, as follows:
"45-7-32.
Any
person who intentionally violates Code Sections 45-7-29 through 45-7-31 shall be
guilty of a misdemeanor.
(a)
It shall be unlawful for any person to use any travel advance received from
public funds, for nongovernmental purposes or to submit or approve, knowingly or
through willful and wanton neglect, a fraudulent request to the state for
reimbursement of expenses.
(b)
Any person who, in violation of subsection (a) of this Code section, uses any
travel advance for nongovernmental purposes or submits or approves, knowingly or
through willful and wanton neglect, a fraudulent request for reimbursement of
expenses, valued in the aggregate at less than $500.00 shall be guilty of a
misdemeanor of a high and aggravated nature which shall be punishable by not
more than 12 months´ imprisonment and a fine not to exceed $5,000.00. In
addition to the foregoing criminal penalties, any such person shall also be
subject to immediate termination of state employment and shall owe restitution
to the state equal to the amount of such misappropriated travel advances or
fraudulent reimbursements, plus interest to be assessed at a rate of 12 percent
per annum to be calculated from the date each misappropriated travel advance or
fraudulent reimbursement payment was made.
(c)
Any person who, in violation of subsection (a) of this Code section, uses any
travel advance for nongovernmental purposes or submits or approves knowingly, or
through willful and wanton neglect, a fraudulent request for reimbursement of
expenses valued in the aggregate at $500.00 or more shall be guilty of a felony
which shall be punishable by not less than one nor more than 20 years´
imprisonment and a fine not to exceed $50,000.00 or triple the amount of such
misappropriated travel advances or fraudulent reimbursement payments, whichever
is greater. In addition to such criminal penalties, any such person shall also
be subject to immediate termination of state employment and shall owe
restitution to the state equal to the amount of such misappropriated travel
advances or fraudulent reimbursements, plus interest to be assessed at a rate of
12 percent per annum to be calculated from the date each misappropriated travel
advance or fraudulent reimbursement payment was made. If any person who is
convicted of a felony pursuant to this subsection is a participant in any
government funded retirement system, such person´s retirement benefits
shall be paid to the state until such fines, restitution, and interest have been
paid in full."
SECTION
4.
For
the purpose of promulgating rules and regulations, policies, procedures, and
manuals, this Act shall become effective upon its approval by the Governor or
upon its becoming law without such approval. For all other purposes, this Act
shall become effective on July 1, 2008, and shall apply to all transactions
occurring on and after such date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.