Citations Affected: IC 4-4-30 ; IC 4-21.5-2-5 ; IC 5-14; IC 6-3.1-24 .
Synopsis: Venture capital investments. Establishes the venture capital
fund. Authorizes the fund to sell contingent tax credits to public
utilities to obtain capital to be used to invest in new high technology
ventures in Indiana. Authorizes the fund to invest in local certified
equity pools and other investment groups. Requires that each dollar of
investment from the fund must be matched by two dollars of private
Effective: January 1, 2003.
January 7, 2002, read first time and referred to Committee on Finance.
A BILL FOR AN ACT to amend the Indiana Code concerning
economic development and taxation.
IS ADDED TO THE INDIANA CODE AS
A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2003]:
Chapter 30. Venture Capital Fund
Sec. 1. (a) As used in this chapter, "fund" means the venture capital fund established by section 2 of this chapter.
(b) As used in this chapter, "investor group" means an individual, a corporation, a partnership, a local certified equity pool, or another lawfully organized entity.
(c) As used in this chapter, "local certified equity pool" means a for-profit partnership, corporation, trust, or limited liability company that:
(1) is located, headquartered, and registered to conduct business in Indiana;
(2) has as its primary business activity the investment of cash in qualified Indiana businesses; and
(3) is certified by the fund as meeting the criteria of this
(d) As used in this chapter, "private investment" means an investment of money that:
(1) is not derived from federal, state, or local taxes; and
(2) is not made by a person owning more than five percent (5%) of the company seeking an investment from the venture capital fund.
(e) As used in this chapter, "qualified Indiana business" means an independently owned and operated business that:
(1) is a seed, a startup, or an early stage venture, as defined by the fund in its written guidelines, taking into account the United States Small Business Administration's definition of a small business (13 CFR 121.301(c));
(2) is a high growth company with high skilled jobs (as defined in IC 4-4-10.9-9.5 );
(3) has its headquarters in Indiana;
(4) employs at least seventy percent (70%) of its employees in Indiana, ninety-five percent (95%) of whom are Indiana residents;
(5) is in need of venture capital and is unable to obtain capital using conventional financing;
(6) is not involved in:
(A) real estate;
(B) real estate development;
(D) professional services provided by:
(ii) lawyers; or
(E) retail sales, except when the primary purpose of the business is developing or supporting electronic commerce using the Internet; or
(F) gas and oil exploration.
Sec. 2. (a) There is established a body politic and corporate, not a state agency but an independent instrumentality exercising essential public functions, to be known as the venture capital fund.
(b) The fund is composed of the following nine (9) members:
(1) The lieutenant governor, or the lieutenant governor's designee.
(2) The treasurer of state, or the treasurer of state's designee.
(3) Seven (7) members appointed by the governor, not more than four (4) of whom may be from the same political party.
(c) All members must be residents of Indiana.
Sec. 3. All appointments to the fund are for terms of four (4) years. Each member holds office for the term of the appointment and continues to serve after the member's appointment expires until the member's successor is appointed and qualified. A member is eligible for reappointment. A member may be removed from office by the governor and serves at the governor's pleasure.
Sec. 4. (a) The governor shall name the chairperson from among the members to serve at the governor's pleasure. The members shall elect from among their number a vice chairperson and other officers as they determine.
(b) The members of the fund appointed by the governor under section 2(b)(3) of this chapter are entitled to a per diem allowance for attending meetings equal to that provided by law for members of the general assembly. All the members of the fund are entitled to receive reimbursement for actual and necessary expenses on the same basis as state employees.
Sec. 5. The powers of the fund are vested in the members. Five (5) members of the fund constitute a quorum for the transaction of business. The affirmative vote of at least five (5) members is necessary for any action to be taken by the fund. A vacancy in the membership of the fund does not impair the right of a quorum to exercise all rights and perform all duties of the fund.
Sec. 6. Meetings of the members of the fund shall be held at the call of the chairperson or whenever any three (3) members so request. The members shall meet at least once every three (3) months to attend to the business of the fund.
Sec. 7. The lieutenant governor shall serve as the secretary-manager of the fund. The secretary-manager shall administer, manage, and direct the affairs and activities of the fund in accordance with the policies and under the control and direction of the members. The secretary-manager shall approve all accounts for salaries, allowable expenses of the fund or of any employee or consultant, and expenses incidental to the operation of the fund. The secretary-manager shall perform other duties as directed by the members in carrying out this chapter.
Sec. 8. (a) The secretary-manager shall do the following:
(1) Attend the meetings of the fund.
(2) Keep a record of the proceedings of the fund.
(3) Maintain and be custodian of all books, documents, and papers filed with the fund and its official seal.
(b) The secretary-manager may make copies of all minutes and
other records and documents of the fund and may give certificates
under seal of the fund to the effect that the copies are true copies.
All persons dealing with the fund may rely upon such certificates.
Sec. 9. The fund may, without the approval of the attorney general or any other state officer, employ legal counsel, technical experts, and other officers, agents, and employees, permanent or temporary, as it considers necessary to carry out the efficient operation of the fund, and shall determine their qualifications, duties, compensation, and terms of service. The members may delegate to the secretary-manager or one (1) or more agents or employees of the fund the administrative duties they consider proper, including the powers of the fund set forth in this section. Employees of the fund shall not be considered employees of the state.
Sec. 10. Any member or employee of the fund who has, will have, or later acquires an interest, direct or indirect, in any transaction with the fund shall immediately disclose the nature and extent of the interest in writing to the fund as soon as the member or employee has knowledge of the actual or prospective interest. The disclosure shall be announced in an open meeting and entered upon the minutes of the fund. Upon disclosure, the member or employee shall not participate in any action by the fund authorizing the transaction. However, the interest does not invalidate actions by the fund with the participation of the disclosing member before the time the member became aware of the interest or should reasonably have become aware of the interest.
Sec. 11. Notwithstanding any other law, an officer or employee of the state does not forfeit office or employment by accepting membership in the fund or by providing services to the fund.
Sec. 12. Each member of the fund shall execute a surety bond in the penal sum of twenty-five thousand dollars ($25,000). To the extent any member of the fund is already covered by a bond required by state law, the member need not obtain another bond if the bond required by state law is in at least the penal sum specified in this section and covers the member's activities for the fund. Instead of a bond, the chairperson of the fund may execute a blanket surety bond covering each member and the employees or other officers of the fund. Each surety bond must be conditioned upon the faithful performance of the duties of the office of the member and shall be issued by a surety company authorized to transact business in Indiana as surety. At all times after the
issuance of any surety bonds, each member shall maintain the
surety bonds in full force and effect. All costs of the surety bonds
shall be borne by the fund.
Sec. 13. (a) The fund is granted all powers necessary or appropriate to carry out and effectuate its public and corporate purposes under this chapter, including but not limited to the following:
(1) Have perpetual succession as a body politic and corporate and an independent instrumentality exercising essential public functions.
(2) Without complying with IC 4-22-2 , adopt, amend, and repeal bylaws, rules, and regulations that are not inconsistent with this chapter, IC 4-4-21 , and IC 15-7-5 and are necessary or convenient to regulate its affairs and to carry into effect the powers, duties, and purposes of the fund and conduct its business.
(3) Sue and be sued in its own name.
(4) Have an official seal and alter it at will.
(5) Maintain an office or offices at a place or places within Indiana as it may designate.
(6) Make and execute contracts and all other instruments necessary or convenient for the performance of its duties and the exercise of its powers and functions under this chapter.
(7) Employ attorneys, accountants, financial experts, and other advisers, consultants, and agents as may be necessary in its judgment and fix their compensation.
(8) Procure insurance against any loss in connection with its property and other assets, including loans and loan notes in amounts and from insurers as it considers advisable.
(b) The fund's powers under this chapter shall be interpreted broadly to effectuate the purposes of this chapter and may not be construed as a limitation of powers.
Sec. 14. (a) The fund shall:
(A) rules under IC 4-22-2 ; or
(B) a policy;
establishing a code of ethics for its employees; or
(2) operate under the jurisdiction and rules adopted by the state ethics commission.
(b) A code of ethics adopted by rule or policy under this section must be consistent with state law and approved by the governor.
Sec. 15. The assets of the fund consist of the capital obtained
from the pledge of contingent tax credits authorized under
Sec. 16. (a) The fund shall solicit proposals from qualified investor groups for investment of capital in qualified Indiana business in accordance with this chapter. The board shall establish criteria for selection of investor groups considered qualified to generate capital for investment in a manner that will result in significant potential to create jobs and to diversify the economy of Indiana.
(b) The criteria must include:
(1) the applicant's:
(A) level of experience;
(B) quality of management;
(C) investment philosophy and success;
(D) historical investment performance; and
(E) probability of success in fundraising;
(2) the amount and timing of fees to be paid; and
(3) other investment criteria commonly used in professional portfolio management as considered appropriate by the fund.
Sec. 17. An investment by the fund in a qualified Indiana business is limited by the following:
(1) Each dollar of the fund's investment must be matched by at least two dollars ($2) of private investment; and
(2) the fund's investment in any one (1) qualified Indiana business may not exceed ten percent (10%) of the fund's assets.
SECTION 2. IC 4-21.5-2-5 , AS AMENDED BY P.L.172-1999, SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2003]: Sec. 5. This article does not apply to the following agency actions:
(1) The issuance of a warrant or jeopardy warrant for the collection of taxes.
(2) A determination of probable cause or no probable cause by the civil rights commission.
(3) A determination in a factfinding conference of the civil rights commission.
(4) A personnel action, except review of a personnel action by the state employees appeals commission under IC 4-15-2 or a personnel action that is not covered by IC 4-15-2 but may be taken only for cause.
(5) A resolution, directive, or other action of any agency that relates solely to the internal policy, organization, or procedure of
that agency or another agency and is not a licensing or
enforcement action. Actions to which this exemption applies
include the statutory obligations of an agency to approve or ratify
an action of another agency.
(6) An agency action related to an offender within the jurisdiction of the department of correction.
(7) A decision of the department of commerce, the department of environmental management, the enterprise zone board, the tourist information and grant fund review committee, the Indiana development finance authority, the Indiana business modernization and technology corporation, the corporation for innovation development, the Indiana small business development corporation, the venture capital fund, or the lieutenant governor that concerns a grant, loan, bond, tax incentive, or financial guarantee.
(8) A decision to issue or not issue a complaint, summons, or similar accusation.
(9) A decision to initiate or not initiate an inspection, investigation, or other similar inquiry that will be conducted by the agency, another agency, a political subdivision, including a prosecuting attorney, a court, or another person.
(10) A decision concerning the conduct of an inspection, investigation, or other similar inquiry by an agency.
(11) The acquisition, leasing, or disposition of property or procurement of goods or services by contract.
(12) Determinations of the department of workforce development under IC 22-4-18-1 (g)(1), IC 22-4-40 , or IC 22-4-41.
(13) A decision under IC 9-30-12 of the bureau of motor vehicles to suspend or revoke the driver's license, a driver's permit, a vehicle title, or a vehicle registration of an individual who presents a dishonored check.
(14) An action of the department of financial institutions under IC 28-1-3.1 or a decision of the department of financial institutions to act under IC 28-1-3.1.
(15) A determination by the NVRA official under IC 3-7-11 concerning an alleged violation of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg) or IC 3-7.
(16) Imposition of a civil penalty under IC 4-20.5-6-8 if the rules of the Indiana department of administration provide an administrative appeals process.
SECTION 3. IC 5-14-1.5-6.1 , AS AMENDED BY P.L.37-2000, SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JANUARY 1, 2003]: Sec. 6.1. (a) As used in this section, "public
official" means a person:
(1) who is a member of a governing body of a public agency; or
(2) whose tenure and compensation are fixed by law and who executes an oath.
(b) Executive sessions may be held only in the following instances:
(1) Where authorized by federal or state statute.
(2) For discussion of strategy with respect to any of the following:
(A) Collective bargaining.
(B) Initiation of litigation or litigation that is either pending or has been threatened specifically in writing.
(C) The implementation of security systems.
(D) The purchase or lease of real property by the governing body up to the time a contract or option to purchase or lease is executed by the parties.
However, all such strategy discussions must be necessary for competitive or bargaining reasons and may not include competitive or bargaining adversaries.
(3) For discussion of the assessment, design, and implementation of school safety and security measures, plans, and systems.
(4) Interviews with industrial or commercial prospects or agents of industrial or commercial prospects by the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, the venture capital fund, or economic development commissions.
(5) To receive information about and interview prospective employees.
(6) With respect to any individual over whom the governing body has jurisdiction:
(A) to receive information concerning the individual's alleged misconduct; and
(B) to discuss, before a determination, the individual's status as an employee, a student, or an independent contractor who is a physician.
(7) For discussion of records classified as confidential by state or federal statute.
(8) To discuss before a placement decision an individual student's abilities, past performance, behavior, and needs.
(9) To discuss a job performance evaluation of individual employees. This subdivision does not apply to a discussion of the salary, compensation, or benefits of employees during a budget
(10) When considering the appointment of a public official, to do the following:
(A) Develop a list of prospective appointees.
(B) Consider applications.
(C) Make one (1) initial exclusion of prospective appointees from further consideration.
Notwithstanding IC 5-14-3-4 (b)(12), a governing body may release and shall make available for inspection and copying in accordance with IC 5-14-3-3 identifying information concerning prospective appointees not initially excluded from further consideration. An initial exclusion of prospective appointees from further consideration may not reduce the number of prospective appointees to fewer than three (3) unless there are fewer than three (3) prospective appointees. Interviews of prospective appointees must be conducted at a meeting that is open to the public.
(11) To train school board members with an outside consultant about the performance of the role of the members as public officials.
(12) To prepare or score examinations used in issuing licenses, certificates, permits, or registrations under IC 15-5-1.1 or IC 25.
(c) A final action must be taken at a meeting open to the public.
(d) Public notice of executive sessions must state the subject matter by specific reference to the enumerated instance or instances for which executive sessions may be held under subsection (b). The requirements stated in section 4 of this chapter for memoranda and minutes being made available to the public is modified as to executive sessions in that the memoranda and minutes must identify the subject matter considered by specific reference to the enumerated instance or instances for which public notice was given. The governing body shall certify by a statement in the memoranda and minutes of the governing body that no subject matter was discussed in the executive session other than the subject matter specified in the public notice.
(e) A governing body may not conduct an executive session during a meeting, except as otherwise permitted by applicable statute. A meeting may not be recessed and reconvened with the intent of circumventing this subsection.
SECTION 4. IC 5-14-3-4 , AS AMENDED BY P.L.201-2001, SECTION 1, AND AS AMENDED BY P.L.271-2001, SECTION 1, IS AMENDED AND CORRECTED TO READ AS FOLLOWS [EFFECTIVE JANUARY 1, 2003]: Sec. 4. (a) The following public
records are excepted from section 3 of this chapter and may not be
disclosed by a public agency, unless access to the records is
specifically required by a state or federal statute or is ordered by a court
under the rules of discovery:
(1) Those declared confidential by state statute.
(2) Those declared confidential by rule adopted by a public agency under specific authority to classify public records as confidential granted to the public agency by statute.
(3) Those required to be kept confidential by federal law.
(4) Records containing trade secrets.
(5) Confidential financial information obtained, upon request, from a person. However, this does not include information that is filed with or received by a public agency pursuant to state statute.
(6) Information concerning research, including actual research documents, conducted under the auspices of an institution of higher education, including information:
(A) concerning any negotiations made with respect to the research; and
(B) received from another party involved in the research.
(7) Grade transcripts and license examination scores obtained as part of a licensure process.
(8) Those declared confidential by or under rules adopted by the supreme court of Indiana.
(9) Patient medical records and charts created by a provider, unless the patient gives written consent under IC 16-39.
(10) Application information declared confidential by the twenty-first century research and technology fund board under IC 4-4-5.1.
(11) The following personal information concerning a customer of a municipally owned utility (as defined in IC 8-1-2-1 ):
(A) Telephone number.
(B) Social Security number.
(11) (12) A photograph, a video recording, or an audio recording
of an autopsy, except as provided in
(b) Except as otherwise provided by subsection (a), the following public records shall be excepted from section 3 of this chapter at the discretion of a public agency:
(1) Investigatory records of law enforcement agencies. However, certain law enforcement records must be made available for inspection and copying as provided in section 5 of this chapter.
(2) The work product of an attorney representing, pursuant to
state employment or an appointment by a public agency:
(A) a public agency;
(B) the state; or
(C) an individual.
(3) Test questions, scoring keys, and other examination data used in administering a licensing examination, examination for employment, or academic examination before the examination is given or if it is to be given again.
(4) Scores of tests if the person is identified by name and has not consented to the release of
his the person's scores.
(5) The following:
(A) Records relating to negotiations between the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, the venture capital fund, or economic development commissions with industrial, research, or commercial prospects, if the records are created while negotiations are in progress.
(B) Notwithstanding clause (A), the terms of the final offer of public financial resources communicated by the department of commerce, the Indiana development finance authority, the film commission, the Indiana business modernization and technology corporation, the venture capital fund, or economic development commissions to an industrial, a research, or a commercial prospect shall be available for inspection and copying under section 3 of this chapter after negotiations with that prospect have terminated.
(C) When disclosing a final offer under clause (B), the department of commerce shall certify that the information being disclosed accurately and completely represents the terms of the final offer.
(6) Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.
(7) Diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal.
(8) Personnel files of public employees and files of applicants for public employment, except for:
(A) the name, compensation, job title, business address, business telephone number, job description, education and
training background, previous work experience, or dates of
first and last employment of present or former officers or
employees of the agency;
(B) information relating to the status of any formal charges against the employee; and
(C) information concerning disciplinary actions in which final action has been taken and that resulted in the employee being disciplined or discharged.
However, all personnel file information shall be made available to the affected employee or
his the employee's representative.
This subdivision does not apply to disclosure of personnel
information generally on all employees or for groups of
employees without the request being particularized by employee
(9) Minutes or records of hospital medical staff meetings.
(10) Administrative or technical information that would jeopardize a
recordkeeping record keeping or security system.
(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.
(12) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1. However, this subdivision does not apply to that information required to be available for inspection and copying under subdivision (8).
(13) The work product of the legislative services agency under personnel rules approved by the legislative council.
(14) The work product of individual members and the partisan staffs of the general assembly.
(15) The identity of a donor of a gift made to a public agency if:
(A) the donor requires nondisclosure of his identity as a condition of making the gift; or
(B) after the gift is made, the donor or a member of the donor's family requests nondisclosure.
(16) Library or archival records:
(A) which can be used to identify any library patron; or
(B) deposited with or acquired by a library upon a condition that the records be disclosed only:
(i) to qualified researchers;
(ii) after the passing of a period of years that is specified in the documents under which the deposit or acquisition is
(iii) after the death of persons specified at the time of the acquisition or deposit.
However, nothing in this subdivision shall limit or affect contracts entered into by the Indiana state library pursuant to IC 4-1-6-8.
(17) The identity of any person who contacts the bureau of motor vehicles concerning the ability of a driver to operate a motor vehicle safely and the medical records and evaluations made by the bureau of motor vehicles staff or members of the driver licensing advisory committee. However, upon written request to the commissioner of the bureau of motor vehicles, the driver must be given copies of the driver's medical records and evaluations that concern the driver.
(18) School safety and security measures, plans, and systems, including emergency preparedness plans developed under 511 IAC 6.1-2-2.5.
(c) Notwithstanding section 3 of this chapter, a public agency is not required to create or provide copies of lists of names and addresses, unless the public agency is required to publish such lists and disseminate them to the public pursuant to statute. However, if a public agency has created a list of names and addresses, it must permit a person to inspect and make memoranda abstracts from the lists unless access to the lists is prohibited by law. The following lists of names and addresses may not be disclosed by public agencies to commercial entities for commercial purposes and may not be used by commercial entities for commercial purposes:
(1) A list of employees of a public agency.
(2) A list of persons attending conferences or meetings at a state institution of higher education or of persons involved in programs or activities conducted or supervised by the state institution of higher education.
(3) A list of students who are enrolled in a public school corporation if the governing body of the public school corporation adopts a policy:
(A) prohibiting the disclosure of the list to commercial entities for commercial purposes; or
(B) specifying the classes or categories of commercial entities to which the list may not be disclosed or by which the list may not be used for commercial purposes.
A policy adopted under subdivision (3) must be uniform and may not discriminate among similarly situated commercial entities.