NY State Senate Bill 2023-S1091

Senate Bill S1091

2023-2024 Legislative Session

Relates to purchasing restrictions and investment of certain public funds in persons that contract to build a border wall

download bill text pdf

Current Bill Status - In Senate Committee Procurement And Contracts Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to procurement and contracts
Jan 10, 2023	referred to procurement and contracts

2023-S1091 (ACTIVE) - Details

Current Committee:: Senate Procurement And Contracts
Law Section:: State Finance Law
Laws Affected:: Add §165-b, St Fin L; add §423-d, R & SS L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S5405
2019-2020: S2188
2021-2022: S3316

2023-S1091 (ACTIVE) - Summary

Relates to purchasing restrictions and investment of certain public funds in persons that contract to build a border wall; requires the commissioner to develop and publish, using credible information available to the public, a list of persons determined by the commissioner, that have contracted to build a border wall.

2023-S1091 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S1091

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the state finance law, in relation to purchasing
restrictions on persons that contract to build a border wall; to amend
the retirement and social security law, in relation to the investment of
certain public funds in persons that contract to build a border wall;
and providing for the repeal of such provisions upon expiration thereof

 
PURPOSE:

To bar companies working on the construction of the border wall from
contracting with any businesses or investing in any public funds or
assets within New York State.

 
SUMMARY OF PROVISIONS:

Section I of the bill amends state finance law by adding new section
165-b which defines purchasing restrictions and provides that a list of
persons contracting to build a border wall be compiled and made public.

Section II of the bill amends the retirement and social security law by
adding new section 423-d which provides that no assets of any pension or
annuity fund under the jurisdiction of the comptroller, shall further be
invested in any bank or financial institution which directly, or through
a parent or subsidiary contracts to build a border wall and no such
assets shall otherwise be invested in the stocks, securities or other
obligations of any person which directly, or through a parent or subsid-
iary entity, contracts to build a border wall.

Section III of the bill sets forth the effective date.

 
JUSTIFICATION:

This bill is being introduced in response to the recent executive action
ordering the construction of a southern border wall between the United
States and Mexico which will cover about 1,000 miles at the expense of
taxpayers. In New York, we pride ourselves on diversity and this bill is
one of the many efforts on the local level to push back against divisive
actions that are a stark departure from New York's cores values. This
hill mirrors legislation introduced in Illinois and is similar to meas-
ures taken in New York State to divest from companies that do business
in or with Iran.

Passage of this bill would allow New York State to track any businesses
involved with the construction of the border wall and prohibit them from
obtaining in-state contracts and assets. Serving as a voice for immi-
grant communities and safeguarding their rights honors our history of
welcoming people and refugees seeking greater opportunities for their
families. This bill is a significant step in standing up against any
hateful, anti-immigrant rhetoric.

 
FISCAL IMPLICATIONS:

To be determined.

 
PRIOR LEGISLATIVE HISTORY:
2017-2018: Referred to Finance

2019-2020: Referred to Finance

2021-2022: Referred to Procurement and Contracts

 
EFFECTIVE DATE:
This act shall take effect immediately and shall expire and be deemed
repealed January 20, 2027.

2023-S1091 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1091
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 10, 2023
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Procurement and Contracts
 
 AN ACT to amend  the  state  finance  law,  in  relation  to  purchasing
   restrictions on persons that contract to build a border wall; to amend
   the  retirement and social security law, in relation to the investment
   of certain public funds in persons that contract  to  build  a  border
   wall;  and providing for the repeal of such provisions upon expiration
   thereof
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  state finance law is amended by adding a new section
 165-b to read as follows:
   § 165-B. PURCHASING RESTRICTIONS; PERSONS THAT  CONTRACT  TO  BUILD  A
 BORDER WALL. 1. AS USED IN THIS SECTION, THE FOLLOWING DEFINITIONS SHALL
 APPLY:
   (A)  "CONTRACTS  TO  BUILD  A  BORDER WALL" SHALL MEAN ENTERING INTO A
 CONTRACT WITH THE FEDERAL GOVERNMENT FOR THE PURPOSES OF BUILDING A WALL
 ALONG THE BORDER OF MEXICO AND THE UNITED STATES OF AMERICA.
   (B) "PERSON" SHALL  MEAN  ANY  NATURAL  PERSON,  CORPORATION,  LIMITED
 LIABILITY  COMPANY,  UNINCORPORATED  ASSOCIATION OR ANY OTHER NONGOVERN-
 MENTAL ENTITY,  ORGANIZATION,  OR  GROUP,  OR  ANY  SUCCESSOR,  SUBUNIT,
 PARENT, OR SUBSIDIARY OF THE SAME.
   2.  (A)  ANY  PERSON  THAT IS IDENTIFIED ON A LIST CREATED PURSUANT TO
 PARAGRAPH (B) OF THIS SUBDIVISION AS A PERSON THAT CONTRACTS TO BUILD  A
 BORDER  WALL,  AS  DEFINED  IN  PARAGRAPH (A) OF SUBDIVISION ONE OF THIS
 SECTION, SHALL NOT BE DEEMED A RESPONSIVE BIDDER OR OFFERER, PURSUANT TO
 SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE.
   (B) NOT LATER THAN NINETY  DAYS  AFTER  THE  EFFECTIVE  DATE  OF  THIS
 SECTION,  AND  THEN  ANNUALLY THEREAFTER, THE COMMISSIONER SHALL DEVELOP
 AND PUBLISH, USING CREDIBLE INFORMATION AVAILABLE TO THE PUBLIC, A  LIST
 OF PERSONS DETERMINED BY THE COMMISSIONER, THAT HAVE CONTRACTED TO BUILD
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03293-01-3

 S. 1091                             2
 
 A  BORDER WALL. SUCH LIST, WHEN DEVELOPED AND PUBLISHED, SHALL BE POSTED
 ON THE WEBSITE OF THE OFFICE OF GENERAL SERVICES.
   (C)  IN THE EVENT A PERSON INCLUDED BY THE COMMISSIONER ON THE LIST TO
 BE DEVELOPED AND PUBLISHED IN ACCORDANCE  WITH  PARAGRAPH  (B)  OF  THIS
 SUBDIVISION,  DEMONSTRATES  TO  THE  COMMISSIONER  THAT  SUCH PERSON HAS
 PERMANENTLY CEASED CONTRACTING TO BUILD A  BORDER  WALL,  OR  OBTAINS  A
 COURT  ORDER FROM A SUPREME COURT THAT SUCH PERSON SHALL BE REMOVED FROM
 SUCH LIST DUE TO THE COURT'S DETERMINATION THAT SUCH PERSON  HAS  PERMA-
 NENTLY  CEASED CONTRACTING TO BUILD A BORDER WALL, THEN THE COMMISSIONER
 SHALL REMOVE SUCH PERSON FROM SUCH LIST SO DEVELOPED  AND  PUBLISHED  IN
 ACCORDANCE WITH PARAGRAPH (B) OF THIS SUBDIVISION.
   (D)  PRIOR  TO  THE  FINAL  DEVELOPMENT  AND  PUBLICATION  OF THE LIST
 REQUIRED TO BE PRODUCED PURSUANT TO PARAGRAPH (B) OF  THIS  SUBDIVISION,
 THE  COMMISSIONER  SHALL  PROVIDE  WRITTEN  NOTICE  OF ALL PERSONS TO BE
 INCLUDED ON THE LIST, OF THE COMMISSIONER'S INTENT TO  SO  INCLUDE  SUCH
 PERSON  ON SUCH LIST, TOGETHER WITH WRITTEN NOTICE INFORMING SUCH PERSON
 THAT INCLUSION ON SUCH LIST WOULD  MAKE  SUCH  PERSON  A  NON-RESPONSIVE
 BIDDER  OR  OFFERER, AND THAT SUCH PERSON MAY APPLY TO THE COMMISSIONER,
 OR TO A SUPREME COURT, TO BE REMOVED FROM  SUCH  LIST  PURSUANT  TO  THE
 REQUIREMENTS OF PARAGRAPH (C) OF THIS SUBDIVISION.
   (E)  NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, A STATE AGENCY
 MAY PERMIT A PERSON CONTRACTING TO BUILD A BORDER WALL TO  BE  DEEMED  A
 RESPONSIVE BIDDER OR OFFERER, ON A CASE-BY-CASE BASIS WITH A STATE AGEN-
 CY IF:
   (I)  THE  CONTRACTING  TO  BUILD  A  BORDER WALL OCCURRED PRIOR TO THE
 EFFECTIVE DATE OF THIS SECTION, SUCH ACTIVITIES HAVE NOT  BEEN  EXPANDED
 OR  RENEWED AFTER THE EFFECTIVE DATE OF THIS SECTION, AND THE PERSON HAS
 ADOPTED,  PUBLICIZED,  AND  IS  IMPLEMENTING  A  FORMAL  PLAN  TO  CEASE
 CONTRACTING  TO  BUILD A BORDER WALL AND TO REFRAIN FROM ENGAGING IN ANY
 NEW CONTRACTING TO BUILD A BORDER WALL; OR
   (II) THE STATE AGENCY MAKES A FORMAL, WRITTEN DETERMINATION  THAT  THE
 COMMODITIES  OR  SERVICES  OFFERED  BY  THE  PERSON  NAMED  ON THIS LIST
 PRODUCED BY THE COMMISSIONER PURSUANT TO PARAGRAPH (B) OF THIS  SUBDIVI-
 SION,  ARE  NECESSARY  FOR THE STATE AGENCY TO PERFORM ITS FUNCTIONS AND
 THAT, ABSENT SUCH AN EXEMPTION, THE STATE  AGENCY  WOULD  BE  UNABLE  TO
 OBTAIN THE COMMODITIES OR SERVICES FOR WHICH THE CONTRACT IS OFFERED.
   3.  (A)  A STATE AGENCY SHALL REQUIRE ALL PERSONS THAT SUBMIT A BID OR
 OFFER IN RESPONSE TO A NOTICE OF PROCUREMENT, OR THAT PROPOSE  TO  RENEW
 AN  EXISTING PROCUREMENT CONTRACT, OR THAT PROPOSE TO ASSUME THE RESPON-
 SIBILITY OF A CONTRACTOR PURSUANT TO A PROCUREMENT CONTRACT,  OR  OTHER-
 WISE  PROPOSE  TO ENTER INTO A CONTRACT WITH A STATE AGENCY WITH RESPECT
 TO A CONTRACT FOR  COMMODITIES,  SERVICES,  CONSTRUCTION,  OR  CONTRACTS
 ENTERED  INTO  PURSUANT  TO SECTION EIGHT OF THE PUBLIC BUILDINGS LAW OR
 SECTION THIRTY-EIGHT OF THE HIGHWAY LAW, TO CERTIFY, AT THE TIME THE BID
 IS SUBMITTED, OR THE CONTRACT IS RENEWED OR ASSIGNED, THAT THE PERSON OR
 THE ASSIGNEE IS NOT IDENTIFIED  ON  THE  LIST  DEVELOPED  AND  PUBLISHED
 PURSUANT  TO  PARAGRAPH  (B) OF SUBDIVISION TWO OF THIS SECTION, AND ALL
 STATE AGENCIES SHALL  INCLUDE  SUCH  CERTIFICATION  INFORMATION  IN  THE
 PROCUREMENT RECORD.
   (B)  ALL PERSONS THAT SUBMIT A BID OR OFFER IN RESPONSE TO A NOTICE OF
 PROCUREMENT, OR THAT PROPOSE TO RENEW AN EXISTING  PROCUREMENT  CONTRACT
 WITH  A  STATE AGENCY, OR THAT PROPOSE TO ASSUME THE RESPONSIBILITY OF A
 CONTRACTOR PURSUANT TO A PROCUREMENT CONTRACT WITH A  STATE  AGENCY,  OR
 OTHERWISE  PROPOSE  TO  ENTER  INTO  A CONTRACT WITH A STATE AGENCY WITH
 RESPECT TO  A  CONTRACT  FOR  COMMODITIES,  SERVICES,  CONSTRUCTION,  OR
 CONTRACTS ENTERED INTO PURSUANT TO SECTION EIGHT OF THE PUBLIC BUILDINGS
 S. 1091                             3

 LAW  OR SECTION THIRTY-EIGHT OF THE HIGHWAY LAW, SHALL CERTIFY THAT THEY
 HAVE NOT CONTRACTED TO BUILD A BORDER WALL, AND THAT THEY ARE NOT  IDEN-
 TIFIED  ON THE LIST DEVELOPED AND PUBLISHED PURSUANT TO PARAGRAPH (B) OF
 SUBDIVISION TWO OF THIS SECTION.
   4.  UPON  RECEIVING INFORMATION THAT A PERSON WHO HAS MADE THE CERTIF-
 ICATION REQUIRED BY SUBDIVISION THREE OF THIS SECTION, IS, IN  FACT,  IN
 VIOLATION  OF  SUCH  CERTIFICATION,  THE  STATE AGENCY SHALL REVIEW SUCH
 INFORMATION, NOTIFY SUCH PERSON AND OFFER THEM AN OPPORTUNITY TO RESPOND
 TO SUCH INFORMATION, WITHIN THIRTY DAYS OF  SUCH  NOTICE,  AND  IF  SUCH
 PERSON FAILS TO DEMONSTRATE THAT THEY HAVE CEASED CONTRACTING TO BUILD A
 BORDER  WALL,  THEN,  THE  STATE AGENCY SHALL TAKE SUCH ACTION AS MAY BE
 APPROPRIATE AND PROVIDED FOR BY LAW, RULE OR  CONTRACT,  INCLUDING,  BUT
 NOT LIMITED TO, NOTIFYING THE COMMISSIONER OF SUCH PERSON'S CONTRACTS TO
 BUILD  A BORDER WALL, IMPOSING SANCTIONS, SEEKING COMPLIANCE, RECOVERING
 DAMAGES, AND/OR DECLARING SUCH PERSON IN DEFAULT.
   5. ON OR BEFORE DECEMBER FIFTEENTH,  TWO  THOUSAND  TWENTY-THREE,  AND
 EVERY  YEAR  THEREAFTER,  THE  COMMISSIONER  SHALL ISSUE A REPORT TO THE
 GOVERNOR, THE COMPTROLLER, THE TEMPORARY PRESIDENT OF  THE  SENATE,  AND
 THE  SPEAKER OF THE ASSEMBLY, ON ALL THE ACTIONS TAKEN, AND ALL DETERMI-
 NATIONS MADE, BY THE COMMISSIONER PURSUANT TO THIS SECTION, AND ANY  AND
 ALL RULES OR REGULATIONS ADOPTED.
   § 2. The retirement and social security law is amended by adding a new
 section 423-d to read as follows:
   §  423-D. PROHIBITION ON INVESTMENT OF CERTAIN PUBLIC FUNDS IN PERSONS
 THAT CONTRACT TO BUILD A BORDER WALL. 1. AS USED IN  THIS  SECTION,  THE
 FOLLOWING DEFINITIONS SHALL APPLY:
   (A)  "CONTRACTS  TO  BUILD  A  BORDER WALL" SHALL MEAN ENTERING INTO A
 CONTRACT WITH THE FEDERAL GOVERNMENT FOR THE PURPOSES OF BUILDING A WALL
 ALONG THE BORDER OF MEXICO AND THE UNITED STATES OF AMERICA.
   (B) "PERSON" SHALL  MEAN  ANY  NATURAL  PERSON,  CORPORATION,  LIMITED
 LIABILITY  COMPANY,  UNINCORPORATED  ASSOCIATION OR ANY OTHER NONGOVERN-
 MENTAL ENTITY,  ORGANIZATION,  OR  GROUP,  OR  ANY  SUCCESSOR,  SUBUNIT,
 PARENT, OR SUBSIDIARY OF THE SAME.
   2.  (A)  ANY PERSON THAT IS IDENTIFIED ON THE LIST CREATED PURSUANT TO
 PARAGRAPH (B) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FIVE-B  OF
 THE  STATE  FINANCE  LAW,  AS  BEING  A PERSON THAT CONTRACTS TO BUILD A
 BORDER WALL, SHALL NOT BE ELIGIBLE TO RECEIVE INVESTMENT OF  ANY  MONEYS
 OR  ASSETS  OF  THE  COMMON RETIREMENT FUND IN ANY STOCKS, SECURITIES OR
 OTHER OBLIGATIONS OF SUCH PERSON SO IDENTIFIED ON  SUCH  LIST  DEVELOPED
 AND PUBLISHED BY THE COMMISSIONER OF GENERAL SERVICES.
   (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, NO ASSETS OF
 ANY  PENSION  OR ANNUITY FUND UNDER THE JURISDICTION OF THE COMPTROLLER,
 SHALL FURTHER BE INVESTED IN ANY BANK  OR  FINANCIAL  INSTITUTION  WHICH
 DIRECTLY,  OR THROUGH A PARENT OR SUBSIDIARY CONTRACTS TO BUILD A BORDER
 WALL AND NO SUCH ASSETS SHALL OTHERWISE BE INVESTED IN THE STOCKS, SECU-
 RITIES OR OTHER OBLIGATIONS OF ANY PERSON WHICH DIRECTLY, OR  THROUGH  A
 PARENT OR SUBSIDIARY ENTITY, CONTRACTS TO BUILD A BORDER WALL.
   3.  THE  COMPTROLLER  SHALL  TAKE  APPROPRIATE ACTION TO SELL, REDEEM,
 DIVEST OR WITHDRAW ANY INVESTMENT HELD IN VIOLATION OF THE PROVISIONS OF
 THIS SECTION. THIS SECTION SHALL NOT BE CONSTRUED TO REQUIRE THE  PREMA-
 TURE  OR  OTHERWISE IMPRUDENT SALE, REDEMPTION, DIVESTMENT OR WITHDRAWAL
 OF AN INVESTMENT, BUT SUCH  SALE,  DIVESTMENT  OR  WITHDRAWAL  SHALL  BE
 COMPLETED NO LATER THAN THREE YEARS FOLLOWING THE EFFECTIVE DATE OF THIS
 SECTION.
   4.  ON  OR  BEFORE  DECEMBER FIFTEENTH, TWO THOUSAND TWENTY-THREE, AND
 EVERY YEAR THEREAFTER, THE COMPTROLLER  SHALL  ISSUE  A  REPORT  TO  THE
 S. 1091                             4
 
 GOVERNOR,  THE COMMISSIONER OF GENERAL SERVICES, THE TEMPORARY PRESIDENT
 OF THE SENATE, AND THE SPEAKER OF  THE  ASSEMBLY,  ON  ALL  THE  ACTIONS
 TAKEN, AND ALL DETERMINATIONS MADE, BY THE COMPTROLLER, PURSUANT TO THIS
 SECTION, AND ANY AND ALL RULES OR REGULATIONS ADOPTED.
   §  3.  This  act shall take effect immediately and shall expire and be
 deemed repealed January 20, 2027.

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