Senate Bill 2736

(COMMITTEE SUBSTITUTE)

AN ACT TO CREATE NEW SECTION 25-9-120.1, MISSISSIPPI CODE OF 1972, TO PROHIBIT STATE AGENCIES FROM USING RADIO AND TELEVISION ADVERTISING TO PROMOTE AGENCY PROGRAMS, EXCEPT IN CERTAIN INSTANCES; TO AMEND SECTION 25-9-120, MISSISSIPPI CODE OF 1972, TO REQUIRE THE BIDDING OF AGENCY ADVERTISING CONTRACTS, AND TO PROVIDE A PROCEDURE FOR BIDDING CONTRACTS FOR TELEVISION AND RADIO ADVERTISING WHEN PROCURED WITH FEDERAL FUNDS; AND FOR RELATED PURPOSES.

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

SECTION 1. The following shall be codified as Section 25-9-120.1, Mississippi Code of 1972:

25-9-120.1. (1) No state agency, as defined in Section 25-9-107(d), shall expend any appropriated funds for the purpose of advertising any program of the agency on radio or television. For purposes of this section, "advertising" shall mean the purchase of promotional time the purpose of which is to promote agency programs and activities. Any contract entered into between an agency and a radio or television broadcaster, or any agent hired by the agency, to buy radio or television time for advertising shall be void and unenforceable.

(2) The Department of Finance and Administration shall not issue any warrant to pay for any radio or television advertising described herein.

(3) The provision of this section shall not apply in cases wherein the agency has received grants from the United States government the terms of which require that the grant recipient use radio or television advertising to assist in accomplishing the purposes of the grant. Any agency wishing to procure advertising for such purposes must comply with the provisions of Section 25-9-120. Any agency using federal funds to procure radio or television advertising shall, upon requesting the issuance of a warrant through the Department of Finance and Administration to pay for such services, provide the Department of Finance and Administration with all necessary documentation supporting the purchase, including any federal requirement that the agency use radio or television advertising, and all procedures followed to comply with a competitive procurement.

(4) This section shall not be applicable to any agency that obtains public service announcements from radio and television broadcasters at no cost to the agency and shall not apply to agency use of services offered by the Mississippi Authority for Education Television.

(5) This section shall not apply to any state institution of higher learning or any community and junior college.

SECTION 2. Section 25-9-120, Mississippi Code of 1972, is amended as follows:

25-9-120. (1) Contract personnel, whether classified as contract workers or independent contractors shall not be deemed state service or nonstate service employees of the State of Mississippi, and shall not be eligible to participate in the Public Employees' Retirement System, or the State and School Employees Health Insurance Plan, nor be allowed credit for personal and sick leave and other leave benefits as employees of the State of Mississippi, notwithstanding Sections 25-3-91 through 25-3-101; 25-9-101 through 25-9-151; 25-11-1 through 25-11-126; 25-11-128 through 25-11-131; 25-15-1 through 25-15-23 and for the purpose set forth herein. Contract workers, i.e., contract personnel who do not meet the criteria of independent contractors, shall be subject to the provisions of Section 25-11-127.

(2) There is hereby created the Personal Service Contract Review Board, which shall be composed of the State Personnel Director, the Executive Director of the Department of Finance and Administration, or his designee, the Commissioner of Corrections, or his designee, the Executive Director of the Mississippi Department of Wildlife, Fisheries and Parks, or his designee, and the Executive Director of the Department of Environmental Quality, or his designee. The State Personnel Director shall be chairman and shall preside over the meetings of the board. The board shall annually elect a vice chairman, who shall serve in the absence of the chairman. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by the chairman and two (2) other of those members present and voting, entered upon the minutes of the board and signed by the chairman. Necessary clerical and administrative support for the board shall be provided by the State Personnel Board. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the Legislative Budget Office.

(3) The Personal Service Contract Review Board shall have the following powers and responsibilities:

(a) Promulgate rules and regulations governing the solicitation and selection of contractual services personnel including personal and professional services contracts for any form of consulting, policy analysis, public relations, marketing, public affairs, legislative advocacy services or any other contract that the board deems appropriate for oversight, with the exception of any personal service contracts entered into for computer or information technology-related services governed by the Mississippi Department of Information Technology Services, * * * and any contract for attorney, accountant, auditor, physician, dentist, architect, engineer, veterinarian and utility rate expert services. Any such rules and regulations shall provide for maintaining continuous internal audit covering the activities of such agency affecting its revenue and expenditures as required under Section 7-7-3(6)(d), Mississippi Code of 1972;

(b) Approve all personal and professional services contracts involving the expenditures of funds in excess of One Hundred Thousand Dollars ($100,000.00);

(c) Develop standards with respect to contractual services personnel which require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Personal Service Contract Review Board may, in its discretion, require the agency involved to advertise such contract for public bid, and may reserve the right to reject any or all bids;

(d) Prescribe certain circumstances whereby agency heads may enter into contracts for personal and professional services without receiving prior approval from the Personal Service Contract Review Board. The Personal Service Contract Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;

(e) To provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;

(f) To present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;

(g) To authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Personal Service Contract Review Board procurement regulations;

(h) To request the State Auditor to conduct a performance audit on any personal or professional service contract;

(i) Prepare an annual report to the Legislature concerning the issuance of personal service contracts during the previous year, collecting any necessary information from state agencies in making such report;

(j) (i) Promulgate rules and regulations for the procurement of advertising by state agencies. For purposes of this paragraph, the term "advertising" shall include state agency purchases of promotional space or time with appropriated funds from newspapers, radio and television advertising described in Section 1(3) of this act, billboards, pamphlets, brochures, flyers, professional publications, magazines, yellow pages and telephone directories, Internet or other similar media, the purpose of which is to promote a program or other activity of an agency.

(ii) For purposes of this paragraph, advertising shall not include classified advertisements purchased in newspapers or other media announcing employment opportunities or the placement of legal notices in newspapers of general circulation.

(iii) Regulations promulgated under this paragraph shall be applicable to all advertising purchases made by state agencies without regard to the value of the purchase. The board shall review all proposed state agency advertising contracts prior to their becoming effective to ensure compliance with board regulations and this paragraph.

(iv) This paragraph shall not apply to any state institution of higher learning or any community and junior college.

(4) No member of the Personal Service Contract Review Board shall use his official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities or the contracting for personal or professional services under this section.

SECTION 3. This act shall take effect and be in force from and after July 1, 2012.