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ENGROSSED SENATE AMENDMENT
TO
ENGROSSED HOUSE
BILL NO. 2034 By: McBride, O'Donnell and West
(Kevin) of the House
and
Taylor of the Senate
An Act relating to state contracts; declaring the oil
and gas industry a vital economic partner;
prohibiting state contracts without c ertain written
certification; prohibiting adoption of procurement,
investment or other policy that requires a person to
boycott the oil and gas industry; authorizing
approval of contracts and waiving of applications;
defining terms; providing for codificat ion; and
providing an effective date.
AUTHOR: Remove as principal Senate author Taylor and substitute as
principal Senate author Allen and a dd the following Senate
coauthors: David and Bullard
AMENDMENT NO. 1. Page 1, strike the title, enacting clause and
entire bill and insert
“An Act relating to state government; creating the
Energy Discrimination Elimination Act of 2022;
defining terms; exempting certain entities from
provisions of act due t o statutory obligations;
providing indemnification for certain entities ;
prohibiting certain persons and entities from
entering into a lawsuit with state or state
affiliate; providing any person entering a lawsuit
against state or state affiliate pursuant to this act
be subject to certain costs and fees; requiring State
Treasurer maintain list of cert ain financial
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companies; establishing provisions for Treasurer
action pursuant to act; requiring written
verification be submit ted by certain financial
companies; requiring written notic e be provided to
certain financial companies; providing that certain
financial companies cease certain boycotts by certain
date; requiring sale, redemption, divestment, or
withdrawal of certain sec urities; establishing
schedule for sale, redemption, divest ment, or
withdrawal of certain securities; establishing
limitations on divestment and divestment schedu le;
requiring report to certain public officials upon
delay of divestment schedule; requiring report to
certain public officia ls upon decision to cease
divestment from certain financial company;
prohibiting acquisition of s ecurities from certain
financial companies; providing for publishing of
report by state governmental entities to certain
public officials; requiring state gove rnmental
entities to receive written verification from certain
companies before entrance into cer tain contracts;
providing for codification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new sec tion of law to be codified
in the Oklahoma Statutes as Section 12001 of Title 74, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cite d as the "Energy
Discrimination Elimi nation Act of 2022".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 12002 of Title 74, unless there
is created a duplication in numbering, reads as fol lows:
A. As used in the Energy Discr imination Elimination Act of
2022:
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1. "Boycott energy company " means, without an ordinary business
purpose, refusing to deal with, terminating business activities
with, or otherwise taking any action that is intended to penali ze,
inflict economic harm on, or limit commercial relatio ns with a
company because the company:
a. engages in the explo ration, production, utilization,
transportation, sale, or manufacturing of fossil fuel -
based energy and does not commit or pledge to meet
environmental standards beyo nd applicable federal and
state law, or
b. does business with a company described by subpa ragraph
a of this paragraph;
2. "Company" means a for-profit sole proprietorship,
organization, association, corporation, partnership, j oint venture,
limited partnership, limited liability part nership, or limited
liability company including a wholly owned subsidiary, majority-
owned subsidiary, parent company, or affiliate of those entities or
business associations, that exists to make a pr ofit;
3. "Treasurer" means the State Treasurer or their designee;
4. "Direct holdings" means, with respect to a finan cial
company, all securities of that financial company held directly by a
state governmental entity in an account or fund in which a stat e
governmental entity owns al l shares or interests;
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5. "Financial company" means a publicly traded financial
services, banking, or investment company;
6. "Indirect holdings" means, with respect to a financial
company, all securities of that financial com pany held in an account
or fund, such as a mutual fund, m anaged by one or more persons not
employed by a state governme ntal entity, in which the state
governmental entity owns shares or interests together with other
investors not subject to the provisions of this chapter. The term
does not include money investe d under a plan described by Section
401(k) or 457 of the Inter nal Revenue Code of 1986;
7. "Listed financial company " means a financial company listed
by the Treasurer; and
8. "State governmental e ntity" means all state retire ment
systems.
B. With respect to actions taken in compliance with the Energy
Discrimination Elimination Act including all good faith
determinations regarding financial companies as required by this
act, a state governmental en tity and the Treasurer are exempt from
any conflicting statutory or common law obligations including any
obligations with respect to making investments, divesting from any
investment, preparing or maintaining any list of financial
companies, or choosing as set managers, investment fund s, or
investments for the state governmental entity 's securities
portfolios.
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C. In a cause of action based on an action, inaction, decision,
divestment, investment, financial company communication, report, or
other determination made or taken in connectio n with the Energy
Discrimination Elimination Act, the state shall indemnify and hold
harmless for actual damages, court costs, and attorney fees adjudged
against, and defend:
1. An employee, a member of the governing body, or any other
officer of a state governmental entity;
2. A contractor of a state governmental entity;
3. A former employe e, a former member of the governing body, or
any other former officer of a state governmental entity who was an
employee, member of the g overning body, or other offic er when the
act or omission on which the damages are based occurred;
4. A former contract or of a state governmental entity who was a
contractor when the act or omission on which the damages are based
occurred; and
5. A state governmental entity.
D. 1. A person including a member, retiree, or beneficiary of
a retirement system to which the E nergy Discrimination Elimination
Act applies, an association, a research firm, a financial company,
or any other person shall not sue or pursue a private cause of
action against the state, a sta te governmental entity, a current or
former employee, a member of the governing body, or any other
officer of a state governmental entity, or a contractor of a state
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governmental entity, for any clai m or cause of action includin g
breach of fiduciary duty, or for violation of any constitutional,
statutory, or regulato ry requirement in connection with any action,
inaction, decision, divestment, investment, financial company
communication, report, or oth er determination made or take n in
connection with this ac t.
2. A person who files suit against the state, a state
governmental entity, an employee, a member of the governing body, or
any other officer of a state governmental entity, or a contractor of
a state governmental entity, is liable for paying the costs and
attorney fees of a person sued in violation of this sectio n.
3. A state governmental entity shall not be subject to any
requirement of this act if the state governmental entity determines
that such requirement would be inco nsistent with its fiduciary
responsibility with respect to the investment of entity assets or
other duties imposed by law relating to the in vestment of entity
assets.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 12003 of Title 74, unless there
is created a duplication in numbering, reads as follows:
A. 1. The Treasurer shall prepare and maintain, and provide to
each state governmental entity, a list of financial companies that
boycott energy companies. In maintaining the list, the Treasurer
may:
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a. review and rely, as appro priate in the Treasurer's
judgment, on publicly available information regarding
financial companies including information provided by
the state, nonprofit or ganizations, research firms,
international organizations, and governmental
entities, and
b. request written verification from a financial company
that it does not boycott energy companies and rely, as
appropriate in the Treasurer's judgment and without
conducting further investigation, resear ch, or
inquiry, on a financial company 's written response to
the request.
2. A financial company that fails to provide to the Treasurer a
written verification under subparagraph b of paragraph 1 of this
subsection before the sixty-first day after receivin g the request
from the Treasurer is presumed to be boycotting energy companies.
3. The Treasurer shall update the list annually or more often
as the Treasurer considers necessary, but not more often than
quarterly, based on information from, among other s ources, those
listed in subparagraph a of paragraph 1 of this subsection.
4. Not later than the thirtieth day after the date the list of
financial companies that boycott energy companies is first provided
or updated, the Treasurer shall file the list with the presiding
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officer of each house of the Legislature and the Attorney General
and post the list on a publicly available Internet website.
5. The Treasurer may retain third party consultants to assist
in the implementation of the provisions of this act.
B. Not later than the thirtieth day after the date a state
governmental entity receives the list provided under paragraph 1 of
subsection A of this section, the state governmental entity shall
notify the Treasurer of the listed financial companies in which the
state governmental entit y owns direct holdings or indir ect holdings.
C. 1. For each listed financial company identified under
paragraph 1 of subsection A of this section, the state governmental
entity shall send a writt en notice:
a. informing the financial company of its status as a
listed financial company,
b. warning the financial company that it may become
subject to divestment by state governmental entities
after the expiration of the period described by
paragraph 2 of this subsection, and
c. offering the financial company t he opportunity to
clarify its activities related to companies described
by paragraph 1 of subsection A of this section.
2. Not later than the ninetieth day after the date the
financial company rec eives notice under paragraph 1 of this
subsection, the financial company shall cease boycotting energy
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companies to avoid qualifying for divestment by state governmental
entities.
3. If, during the time provided by paragraph 2 of this
subsection, the financial company ceases boy cotting energy
companies, the Treasurer shall remove the financial company from the
list maintained under paragraph 1 of subsection A of this section ,
and this subsection will no longer apply to the financial company
unless it resumes boycotting energy com panies.
4. If, after the time prov ided by paragraph 2 of this
subsection expires, the financial company continues to boycott
energy companies, the state governmental entity shall sell, redeem,
divest, or withdraw all publicly trade d securities of the fina ncial
company, except securities de scribed by subsection E of this
section, according to the schedule provided under subsection D of
this section.
D. 1. A state governmental entity required to sell, redeem,
divest, or withdraw all publicly traded securit ies of a listed
financial company shall comply with the following schedule:
a. at least fifty percent (50%) of those assets shall be
removed from the state governmental entity 's assets
under management not later than the one-hundred-
eightieth day after the date the financial company
receives notice pursuant to paragraph 1 of subsection
C of this section unless the state governmental entity
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determines, based on a good faith exercise of its
fiduciary discretion and subject to subparagr aph b of
this subsection, that a later date is more prudent,
and
b. One hundred percent (1 00%) of those assets shall be
removed from the state governmental entity 's assets
under management not later than the three-hundred-
sixtieth day after the date the fi nancial company
receives notice pursuant to paragraph 1 of subsection
C of this section.
2. If a financial company that ceased boycotting energy
companies after receiving notice pursuant to paragraph 1 of
subsection C of this section resumes its boycott, the state
governmental entity shall send a written notice to the financial
company informing it that the state governmental entity will sell,
redeem, divest, or withdraw all publicly traded securities of th e
financial company according to the schedule in p aragraph 1 of
subsection D of this section.
3. Except as provided by paragraph 1 of subse ction D of this
section, a state governmental entity may delay the schedule for
divestment under that subsection onl y to the extent that the state
governmental entity determines, in the stat e governmental entity's
good faith judgment, and consistent with t he entity's fiduciary
duty, that divestment from listed financial companies will likely
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result in a loss in value or a benchmark deviation described by
paragraph 1 of subsection F of this se ction.
4. If a state governmental entity delays the schedule for
divestment, the state governmental entity shall submit a report to
the Treasurer, the presiding officer of each hous e of the
Legislature and the Attorney General stating the reasons and
justification for the delay in divestment by the state governmental
entity from listed financial companies. The report shall include
documentation supporting its determination that the divestment would
result in a loss in value or a be nchmark deviation descri bed by
paragraph 1 of subsection F of this section including objective
numerical estimates. The state governmental entity shall update the
report every six (6) months.
E. A state governmental entity is not required to divest from
any indirect holdings i n actively or passively managed investment
funds or private equity funds. The state governmental entity shall
submit letters to the managers of each investment fund containing
listed financial companies requesting that they remove t hose
financial companies from the fund or create a similar actively or
passively managed fund with indirect holdings devoid of listed
financial companies. If a manager creates a similar fund with
substantially the same management fees and same level of in vestment
risk and anticipated return, the state governmental entity may
replace all applicable investments with investments in the similar
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fund in a time frame consistent with prudent fiduciary standards b ut
not later than the four hundred fiftieth day after the date the fund
is created.
F. 1. A state governmental entity may cease divesting f rom one
or more listed financial companies only if clear and convincing
evidence shows that:
a. the state governmental entity has suffered or will
suffer a loss in the value of assets under management
by the state governmental entity as a result of having
to divest from listed financial companies under this
subsection, or
b. an individual portfolio tha t uses a benchmark-aware
strategy would be subject to an aggregate e xpected
deviation from its benchmark as a result of having to
divest from listed financial companies under this
subsection.
2. A state governmental entity may cease divesting from a
listed financial company as provided by this section only to the
extent necessary to ensure that the state governmental entity does
not suffer a loss in value or d eviate from its benchmark as
described by paragraph 1 of this subsection.
3. Before a state gover nmental entity may cease divesting from
a listed financial company u nder this section, the state
governmental entity shall provide a written report to the Treasurer,
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the presiding officer of each house of the Legislature, and the
Attorney General setting forth the reason and justification,
supported by clear and convincing evidence, for deciding to cease
divestment or to remain invested in a listed financial co mpany. The
state governmental entity shall update the report required by
subsection semiannually, as applicable.
4. This section does not apply to reinvestment in a financial
company that is no longer a listed financial company.
G. Except as provided in subsection F of this section, a state
governmental entity shall not acquire securities o f a listed
financial company.
SECTION 4. NEW LAW A ne w section of law to be codified
in the Oklahoma Statutes as Section 12004 of Title 74, unless there
is created a duplication in numbering, reads as follows:
A. Not later than Jan uary 1 of each year, each state
governmental entity shall file a publicly ava ilable report with th e
Treasurer, the presiding officer of each house of the Legislature,
and the Attorney General that:
1. Identifies securities sold, redeemed, divested, o r withdrawn
in compliance with subsection D of Section 3 of this act;
2. Identifies prohibited investments under subsection F of
Section 3 of this act; and
3. Summarizes any changes made under subsection E of Section 3
of this act.
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B. The Attorney General may bring any action necessary to
enforce the Energy Discrimination Elimination Act of 2022.
SECTION 5. NEW LAW A new section of law to be codifi ed
in the Oklahoma Statutes as Section 12005 of Title 74, unless there
is created a duplication in numbering, reads as follows:
A. As used in this section only of th e Energy Discrimination
Elimination Act of 2022, "governmental entity" means a state agency
or political subdivision of this state.
B. 1. Except for paragraph 4 of this subsection, th is section
applies only to a contract that:
a. is between a governmenta l entity and a company with
ten or more full-time employees, and
b. will pay a company One Hundred Thousand Dollars
($100,000.00) or more over the term of the contract
that is to be paid wholly or partly from public funds
of the governmental entit y; provided, however, the
provisions of this paragraph shall apply separately to
all companies in a multiple party contract.
2. Except as provided by paragraph 4 of this subsection, a
governmental entity shall not enter into a contract with a company
for goods or services unless the contract contains a written
verification from the company that it:
a. does not boycott energy companies, and
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b. will not boycott energy companies during the term of
the contract.
3. Except as provided by paragraph 4 of this subsection, a
governmental entity shall not enter into a contract for goods or
services with a listed financial company under Section 3 of this
act.
4. Paragraphs 2 and 3 of this subsection shall not apply to:
a. a governmental entity that determines the requirement s
of paragraphs 2 or 3 of this subsection are
inconsistent with the governmental entity 's
constitutional or statutory duties related to the
issuance, incurrence, or management of debt
obligations or the deposit, custody, management,
borrowing, or investmen t of funds, and
b. a contract for which a governmental body determ ines
the supplies or services to be provided are not
otherwise reasonably a vailable from a company that is
not a listed financial company under Section 3 of this
act.
SECTION 6. NEW LAW A new se ction of law to be codified
in the Oklahoma Statutes as Sectio n 12006 of Title 74, unless there
is created a duplication in numbering, reads as follows:
Section 5 of the Energy Disc rimination Elimination Act of 2022
applies only to a contract entered into on or after the effective
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date of this act. A contract entered into before that date is
governed by the law in effect on the date the contract was entered
into, and the former law is conti nued in effect for that purpose.
SECTION 7. This act shall become effective November 1, 2022.”
Passed the Senate the 26th day of April, 2022.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2022.
Presiding Officer of the House
of Representatives
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ENGROSSED HOUSE
BILL NO. 2034 By: McBride, O'Donnell and West
(Kevin) of the House
and
Taylor of the Senate
An Act relating to state contracts; declaring the oil
and gas industry a vital economic partner;
prohibiting state contracts withou t certain written
certification; prohibiting adoption of procurement,
investment or other policy that requires a person to
boycott the oil and gas industry; authorizing
approval of contracts and waiving of applications;
defining terms; providing for codifi cation; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 580 of Title 74, unless there is
created a duplication in numbering, reads as follows:
A. The State of Oklahoma hereby declares that the oil and gas
industry is a vital part of the economy of the State of Oklahoma and
that the state, and those companies that do business by and through
the state, in the interest of the state's economic policy, should
not boycott the oil and gas industry.
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B. Except as provided in subsection D of this section, the
state shall not enter into a contract with a company unless the
company submits a written certificatio n that the company is not
currently engaged in a boycott, in any manner, of the oil and gas
industry that constitutes an integral part of business conducted or
sought to be conducted with the state.
C. The state shall not adopt a procurement, investment o r other
policy that has the effect of inducing or requiring a person to
boycott the oil and gas industry, or to boycott a person doing
business with the oil and gas industry.
D. The Oklahoma Secretary of State shall approve contracts or
may waive application of this section on any contract with any state
agency if the Secretary determines that compliance is not
practicable.
E. As used in this section:
1. "Boycott" means engaging in a refusal to deal, terminating
business activities or performing other ac tions that are intended to
limit commercial relations with persons or entities doing business
with the oil and gas industry;
2. "Oil and gas industry" means any company that is engaged in
exploration, production, refining, servicing and transportation of
oil, natural gas or other petroleum products;
3. "Company" means an organization, association, corporation,
partnership, venture or other entity, its subsidiary or affiliate,
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that exists for profit -making purposes or to otherwise secure
economic advantage;
4. "Contract" means a written agreement between the state and a
company to acquire or dispose of goods or services with an aggregate
price of more than One Hundred Thousand Dollars ($100,000.00).
Contract does not mean a written agreement between the s tate and an
individual to acquire or dispose of goods or services, including
employment or consultant services; and
5. "State" means this state or an agency, board, commission or
department of this state.
SECTION 9. This act shall become effective November 1, 2021.
Passed the House of Representatives the 9th day of March, 2021.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2021.
Presiding Officer of the Senate