As Introduced

125th General Assembly Regular Session 2003-2004

H. B. No. 145

Representatives Buehrer, Aslanides, Brinkman, C. Evans, Fessler, D. Evans, Schaffer, White, Gilb 

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A BILL

To amend section 1306.20 and to enact sections

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1306.25, 1306.26, 1306.27, 1306.28, and 1306.29 of

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the Revised Code to adopt the Electronic

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Government Services Act to prohibit a government

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agency from providing duplicative or competing

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electronic commerce services with the private

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sector, other than described cable service, unless

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the government agency complies with procedures

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established by the Act.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 1306.20 be amended and sections	10
1306.25, 1306.26, 1306.27, 1306.28, and 1306.29 of the Revised	11
Code be enacted to read as follows:	12

Sec. 1306.20.  (A) Subject to section 1306.11 and to sections	13
1306.25 to 1306.29 of the Revised Code, each state agency shall	14
determine if, and the extent to which, it will send and receive	15
electronic records and electronic signatures to and from other	16
persons and otherwise create, generate, communicate, store,	17
process, use, and rely upon electronic records and electronic	18
signatures.	19

(B)(1) Subject to division (B)(2) of this section, a state	20
agency may waive a requirement in the Revised Code, other than a	21
requirement in sections 1306.01 to 1306.15 of the Revised Code,	22
that relates to any of the following:	23

(a) The method of posting or displaying records;

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(b) The manner of sending, communicating, or transmitting	25
records;	26

(c) The manner of formatting records.

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(2) A state agency may exercise its authority to waive a	28
requirement under division (B)(1) of this section only if the	29
following apply:	30

(a) The requirement relates to a matter over which the state	31
agency has jurisdiction;.	32

(b) The waiver is consistent with criteria set forth in rules	33
adopted by the state agency. The criteria, to the extent	34
reasonable under the circumstances, shall contain standards to	35
facilitate the use of electronic commerce by persons under the	36
jurisdiction of the state agency consistent with rules adopted by	37
the department of administrative services pursuant to division (A)	38
of section 1306.21 of the Revised Code.	39

(C) If a state agency creates, uses, receives, or retains	40
electronic records, both of the following apply:	41

(1) Any rules adopted by a state agency relating to	42
electronic records shall be consistent with rules adopted by the	43
department of administrative services pursuant to division (A) of	44
section 1306.21 of the Revised Code.	45

(2) Each state agency shall create, use, receive, and retain	46
electronic records in accordance with section 149.40 of the	47
Revised Code.	48

(D) If a state agency creates, uses, or receives electronic	49
signatures, the state agency shall create, use, or receive the	50
signatures in accordance with rules adopted by the department of	51
administrative services pursuant to division (A) of section	52
1306.21 of the Revised Code.	53

(E)(1) To the extent a state agency retains an electronic	54
record, the state agency may retain a record in a format that is	55
different from the format in which the record was originally	56
created, used, sent, or received only if it can be demonstrated	57
that the alternative format used accurately and completely	58
reflects the record as it was originally created, used, sent, or	59
received.	60

(2) If a state agency in retaining any set of electronic	61
records pursuant to division (E)(1) of this section alters the	62
format of the records, the state agency shall create a certificate	63
of authenticity for each set of records that is altered.	64

(3) The department of administrative services, in	65
consultation with the state archivist, shall adopt rules in	66
accordance with section 111.15 of the Revised Code that establish	67
the methods for creating certificates of authenticity pursuant to	68
division (E)(2) of this section.	69

(F) Whenever any rule of law requires or authorizes the	70
filing of any information, notice, lien, or other document or	71
record with any state agency, a filing made by an electronic	72
record shall have the same force and effect as a filing made on	73
paper in all cases where the state agency has authorized or agreed	74
to such electronic filing and the filing is made in accordance	75
with applicable rules or agreement.	76

(G) Nothing in sections 1306.01 to 1306.23 of the Revised	77
Code shall be construed to require any state agency to use or	78
permit the use of electronic records and electronic signatures.	79

(H)(1) Notwithstanding division (C)(1) or (D) of this	80
section, any state agency that, prior to the effective date of	81
this sectionSeptember 14, 2000, used or permitted the use of	82
electronic records or electronic signatures pursuant to laws	83
enacted, rules adopted, or agency policies adopted before the	84
effective date of this sectionSeptember 14, 2000, may use or	85
permit the use of electronic records or electronic signatures	86
pursuant to those previously enacted laws, adopted rules, or	87
adopted policies for a period of two years after the effective	88
date of this sectionSeptember 14, 2000.	89

(2) Subject to division (H)(3) of this section, after the	90
two-year period described in division (H)(1) of this section has	91
concluded, all state agencies that use or permit the use of	92
electronic records or electronic signatures before the effective	93
date of this sectionSeptember 14, 2000, shall only use or permit	94
the use of electronic records or electronic signatures consistent	95
with rules adopted by the department of administrative services	96
pursuant to division (A) of section 1306.21 of the Revised Code.	97

(3) After the two-year period described in division (H)(1) of	98
this section has concluded, the department of administrative	99
services may permit a state agency to use electronic records or	100
electronic signatures that do not comply with division (H)(2) of	101
this section, if the state agency files a written request with the	102
department.	103

(I) For the purposes of this section, "state agency" means	104
every organized body, office, or agency established by the laws of	105
the state for the exercise of any function of state government,	106
but does not include the general assembly, any legislative agency,	107
the supreme court, the other courts of record in this state, or	108
any judicial agency.	109

Sec. 1306.25. As used in sections 1306.25 to 1306.29 of the	110
Revised Code:	111

(A) "Commercial activity" means performing services or	112
providing goods that normally can be obtained from a private	113
enterprise.	114

(B) "Direct costs" means all costs, whether capital costs,	115
operating costs, or otherwise, that would be eliminated if the	116
service or function to which the costs relate is discontinued.	117

(C) "Electronic commerce services" means services relating to	118
commercial activity that are the same as, similar to, or overlap	119
information technology-based services provided to the public by	120
two or more competing private enterprises. "Electronic commerce	121
services" includes services made in connection with a transaction	122
completed over a computer network, such as the buying of goods or	123
services over the internet.	124

(D) "Full cost accounting" means, in accordance with	125
generally accepted accounting principles, accounting for all	126
direct costs and indirect costs, including capital costs, that are	127
incurred in the ownership, management, or operation of electronic	128
commerce services.	129

(E) "Government agency" means either of the following:

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(1) A state agency as defined in section 117.01 of the	131
Revised Code or a similar agency of a county, township, municipal	132
corporation, or other political subdivision of this state;	133

(2) Any entity that is not majority-owned as private property	134
and is established by law or by order or action of a state agency	135
or similar agency of a county, township, municipal corporation, or	136
other political subdivision, or an officer of that state or	137
similar agency.	138

(F) "Indirect costs" means all costs, whether capital costs,	139
operating costs, or otherwise, that are not direct costs.	140

(G) "Private enterprise" means an individual, firm,	141
partnership, joint venture, corporation, association, or other	142
legal entity engaging, in the private sector, in the	143
manufacturing, processing, sale, offering for sale, rental,	144
leasing, delivery, dispensing, distributing, or advertising of	145
goods or services for profit.	146

Sec. 1306.26. (A) The general assembly finds and declares	147
that the growth of private enterprises is essential to the health,	148
welfare, and prosperity of this state, and that government	149
competes with the private sector when it provides goods and	150
services to the public.	151

(B) It is the intent of the general assembly and the purpose	152
of sections 1306.25 to 1306.29 of the Revised Code to protect	153
economic opportunities for private industry against unfair	154
competition by government agencies and to enhance the efficient	155
provision of public goods and services.	156

(C) Sections 1306.25 to 1306.29 of the Revised Code may be	157
cited as the "electronic government services act."	158

Sec. 1306.27. (A) Except as provided in section 1306.28 of	159
the Revised Code, if two or more competing private enterprises	160
provide electronic commerce services, a government agency shall	161
not engage, through the expenditure of public moneys, in any	162
activity to provide or offer those electronic commerce services to	163
the public or expand similar electronic commerce services to the	164
public.	165

(B) Any provider of electronic commerce services that resides	166
or does business in this state has standing to bring a cause of	167
action for appropriate relief in a court of competent jurisdiction	168
challenging the provision of electronic commerce services by a	169
government agency not made in accordance with sections 1306.25 to	170
1306.29 of the Revised Code.	171

(C) Nothing in sections 1306.25 to 1306.29 of the Revised	172
Code prohibits a government agency from providing electronic	173
commerce services to the public in the absence of two or more	174
competing private enterprises providing those services.	175

Sec. 1306.28. (A) A government agency may provide duplicative	176
or competing electronic commerce services to the public if the	177
agency complies with this section.	178

(B)(1) Before a government agency provides duplicative or	179
competing electronic commerce services to the public, the	180
government agency shall hold a public hearing to allow public	181
comment about the agency's proposed electronic commerce services.	182

(2) The government agency shall provide at least thirty days'	183
public notice of the time and place of the public hearing	184
described in division (B)(1) of this section in one or more	185
newspapers of general circulation in the county or counties within	186
the jurisdiction of the government agency. During the thirty-day	187
period before the public hearing, the government agency shall make	188
its proposal for providing duplicative or competing electronic	189
commerce services to the public available for public inspection in	190
a prominent public location within the county or counties where	191
the public notice described in this division is provided.	192

(C) The public notice described in division (B) of this	193
section also shall set forth all of the following:	194

(1) The government agency's proposed findings of fact and	195
conclusions of law describing the reasons why it believes it is	196
necessary and in the public interest to provide duplicative or	197
competing electronic commerce services to the public and citing	198
the legal authority that permits the government agency to do so;	199

(2) The initial and total lifecycle costs of the proposed	200
duplicative or competing electronic commerce services, which	201
include, but are not limited to, all technology, infrastructure,	202
services, contracts, and direct or indirect personnel costs;	203

(3) The individual per taxpayer cost of the proposed	204
duplicative or competing electronic commerce services on an	205
annualized basis and the cost of these services per user on an	206
annualized basis;	207

(4) The government agency's reasons for believing that the	208
cost benefits of providing duplicative or competing electronic	209
commerce services require the expenditure of public moneys;	210

(5) An identification of unmet needs in the consumer	211
marketplace that the proposed duplicative or competing electronic	212
commerce services would fulfill;	213

(6) A description of how the proposed duplicative or	214
competing electronic commerce services would differ from those	215
provided by two or more competing private enterprises;	216

(7) An economic impact analysis demonstrating that the	217
offering of the proposed duplicative or competing electronic	218
commerce services by the government agency will not be	219
anticompetitive in its effect on the existing industry and will	220
not adversely impact or distort the marketplace of two or more	221
competing private enterprises providing the same or similar	222
electronic commerce services.	223

(D)(1) After reviewing comments from the public following the	224
public hearing described in this section, if the head of a	225
government agency decides to proceed with offering duplicative or	226
competing electronic commerce services to the public, the head of	227
the government agency shall sign factual and legal conclusions	228
addressing the comments and each of the factors set forth in the	229
public notice described in division (C) of this section, and send	230
a written notice to the controlling board that sets forth these	231
conclusions and the government agency's decision to proceed.	232

(2) A government agency shall not offer duplicative or	233
competing electronic commerce services to the public without the	234
approval of the controlling board.	235

(3) The controlling board may continue to exercise oversight	236
with respect to any approval decision it makes under division	237
(D)(2) of this section.	238

(E)(1) Any government agency providing electronic commerce	239
services in a jurisdiction where a private enterprise provides the	240
same electronic commerce services shall prepare and publish an	241
annual report about its electronic commerce services.	242

(2) The annual report described in division (E)(1) of this	243
section substantially shall be in accordance with full cost	244
accounting and shall disclose the amount, source, and cost of	245
working capital utilized by the government agency for providing	246
electronic commerce services.	247

(F) For purposes of providing the public notice and preparing	248
and publishing the annual report described in this section, a	249
government agency, by any reasonable method consistent with	250
applicable generally accepted accounting principles, shall	251
allocate indirect costs that support multiple electronic commerce	252
services or functions among those services and functions in	253
proportion to the relative burden each service or function places	254
on the cost category.	255

Sec. 1306.29. (A) Nothing in sections 1306.25 to 1306.28 of	256
the Revised Code applies to the installation, construction,	257
expansion, maintenance, or operation of any physical	258
infrastructure by a political subdivision that is a public cable	259
service provider, in accordance with Chapter 1332. of the Revised	260
Code and whether on its own or in conjunction with other public	261
cable service providers or private cable service providers, for	262
the sole purpose of providing cable service under such authority	263
as otherwise conferred by law.	264

(B) For purposes of division (A) of this section, "public	265
cable service provider," "private cable service provider," and	266
"cable service" have the same meanings as in section 1332.01 of	267
the Revised Code.	268

Section 2. That existing section 1306.20 of the Revised Code	269
is hereby repealed.	270