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In accordance with 5 C.F.R. 2634.404(a), any executive branch employee, spouse, or minor or dependent child (or that person's representative) who is interested in establishing a qualified blind trust or a qualified diversified trust must consult with the U.S. Office of Government Ethics (OGE) before beginning the process of creating the trust. OGE is the only entity that has the authority to certify a qualified blind trust or a qualified diversified trust. Consulting with OGE early in the process can help determine if a trust is the most appropriate approach and, if so, will ensure that all requirements of the regulation are met. An employee interested in establishing a qualified blind trust or a qualified diversified trust should reach out to their agency's ethics office for OGE contact information.
In some cases, the same experience that qualifies an individual for a role may create potential conflicts of interest. Legislators with experience in an industry are more likely to be given committee assignments involving the regulation of that industry. However, that experience may be tied to ongoing personal financial interests that would require recusal from participating in those matters. Some legislators may use blind trusts in an attempt to ethically balance private interests with public duties.
In a blind trust, an individual places assets that could otherwise create conflicts of interest into an asset vehicle ("trust"). Control over the trust and its assets are given to an independent trustee, who may buy and sell assets without the knowledge or consent of the beneficiary ("blind"). In theory, a public official with a blind trust would be immunized from potential conflicts stemming from the assets held in trust because the legislator-beneficiary would have no knowledge of the impact of official actions on the personal financial interests.
The following table lists blind trust statutes in each state, D.C., Virgin Islands, Guam and Puerto Rico. Relevant administrative rules, advisory opinions and other authoritative sources of interpretation are cited where found. Note: legislators in states lacking relevant laws may still form blind trusts. Conflict and disclosure rules may require knowledge of a potential conflict, so the lack of awareness created by a blind trust might provide protection from conflicts. Officials in some states that lack blind trust rules have relied on federal law as a guide. 5 U.S.C.A. App. 4. However, some interpretations of the absence of state statutory or regulatory direction have taken the opposite interpretation (see e.g. Ohio, below).
The original assets placed in the blind trust shall be listed by the official in a statement, together with a description of the actual or potential conflicts of interest, or appearance of conflict, that the official seeks to avoid by the use of the trust. A copy of the instrument creating the blind trust must be included with the statement. A person initiating a written communication under this section shall cause a copy of the communication to be filed with the commission within five days after the date of the communication. The trustee shall maintain and make available for inspection by the commission at the commission's request the trust's tax returns, books of account, and other records and, on or before May 15 of each year, shall file with the commission a notarized document certifying compliance with this section for the preceding calendar year. AK ST 39.50.040.
Note: this seems to apply to only executive branch officials and employees. AS 39.50.200. However, the Alaska Public Offices Commission, which has jurisdiction over the legislature, appears to require the same financial disclosures of legislators. 2 AAC 50.680 (Current as of 07/20/2021).
Normally it would be a conflict of interest for a state employee to participate in any proceeding, application, ruling, determination, claim, controversy, or any other matter relating to a contract or subcontract in which the employee or an immediate family member thereof has a financial interest, or an associated business has such interest, or an organization in which the employee or member of their family has an arrangement concerning prospective employment has such an interest. However, if the interest is held in a blind trust, then the employee shall not be deemed to have a conflict of interest regarding the matter. A.C.A. 19-11-705. Any employee who has or obtains a benefit from any state contract with a business in which the employee has a financial interest shall report the benefit to the Director of the Department of Finance and Administration, unless the interest has been placed in a disclosed blind trust. A.C.A. 19-11-706.
"Employee" means an individual drawing a salary from a state agency, whether elected or not, and any nonsalaried individual performing personal services for any state agency. "State agency" definition includes, among others, any legislative body or other establishment of the legislative branch of the state. A.C.A. 19-11-701.
No statutory definition was found. However, California's administrative code states that a blind trust must meet the following conditions: (1) trustee must be a disinterested party other than the filer's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, aunt, uncle, or first cousin or the spouse of any such person; (2) trustee must be given complete discretion to manage the trust; (3) trustee must be required to notify the filer of the date of disposition and value at disposition of any original investments or interests in real property so that information can be reported on the filer's next Statement of Economic Interests; (4) trustee must be prohibited from disclosing to the filer any information concerning the replacement assets except for information required under this subsection or the minimum tax information which lists only the totals of taxable items from the trust and does not describe the source of any individual item of income; and (5) if the trust is revoked while the filer is a public official, or if the filer learns of any replacement assets of the trust, the filer must file an amendment to the most recent Statement of Economic Interests disclosing the date of revocation and the previously unreported pro rata share of the trust's interests in real property or investments or income deriving from any such interests in real property or investments and disqualify himself or herself, as necessary. 2 CCR 18235.
A filer with a beneficial interest in a blind trust is not required to disclose the pro rata share of the trust's interests in real property or investments, or income deriving from any such interests or investments, if those interests or investments are acquired after the trust becomes "blind." 2 CCR 18235.
Disclosure requirements for candidates for state elective offices state that individual items in a blind trust or mutual fund need not be disclosed if the trust or fund has been disclosed. HRS 84-17.
None found that relate to state legislators. However, other state officers and employees' financial disclosure requirements include a provision that exempts stocks held in a blind trust from the requirement that the disclosures include the name of any corporation in which the state officer, candidate, or employee of their spouse or unemancipated children own stock or stock options valued over $10,000. IC 4-2-6-8.
No statutory definition was found. However, Kansas's administrative regulations define "blind trust" as a trust established by a state officer or state employee or the individual's spouse for the purpose of divestiture of all control and knowledge of assets. K.A.R. 19-41-1. (Current as of 07/20/2021).
No statutory definition was found. However, Maryland's administrative regulations under Title 19a (State Ethics Commission) requires a blind trust to be: (1) Well diversified (describes a factor test for determining if a trust is well diversified); (2) Readily marketable (describes a factor test); (3) Not a holding in an entity where the official or employee has as his primary State function regulatory or procurement duties relating to the entity, unless, due to the size of the holdings and the nature of the official's or employee's duties, a conflict of interest or appearance of conflict is unlikely; (4) Free of any restriction or encumbrance that would interfere with the trustee's ability to manage and control them. Code Md. Regs. 19A.06.02.02. Qualifications for the trustee of a blind trust are further defined in Code Md. Regs. 19A.06.02.01 et seq. (Current as of 07/20/2021).
No specific impact found in state statutes. However, Maryland administrative regulations state that for purposes of disqualification requirements, interests held in a blind trust do not trigger the requirements and limitations of disqualification provisions. Code Md. Regs. 19A.06.01.03 (Current as of 07/20/2021).
No specific impact found in state statutes. However, Maryland administrative regulations state that for purposes of disqualification requirements, interests held in a blind trust do not trigger state disclosure or requirements. Code Md. Regs. 19A.06.01.03 (Current as of 07/20/2021).
None found. However, the definitions section of the Minnesota chapter on Campaign Finance and Public Disclosure excludes from the definition of "securities" any of the underlying assets owned in a blind trust. M.S.A. 10A.01. This could indicate that the individual owned assets within a blind trust do not need to be disclosed, only the blind trust itself.
A blind trust shall comply with the following conditions: (a) The trustee of a blind trust shall be: A bank, trust or brokerage company authorized to exercise fiduciary powers, an individual who is an employee of any such fiduciary, a law firm or an attorney, AND a disinterested party other than the public official or employee's spouse, child, parent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, aunt, uncle, first cousin, or the spouse of any such person, AND someone who is not a public official or public employee, AND someone who has not been appointed to a public entity by the public official or public employee, or by a public official or public employee supervised by the filer. (b) The trustee shall be given complete discretion to manage the trust, including, but not limited to, the power to dispose of and acquire trust holdings without consulting or notifying the filer. (c) The trustee is prohibited from disclosing to the filer any information concerning the replacement holdings except for information required under this subsection or the minimum tax information which lists only the totals of taxable items from the trust and does not describe the source of individual items of income. (d) A copy of the trust agreement shall be filed with the commission within 5 business days after execution, including an identification of the holdings placed in trust, a statement detailing the date of its creation, and the name and address of the trustee. (e) The trustee annually shall file with the commission a signed statement, under penalty of perjury, stating that he or she has not revealed any information to the filer other than as permitted under this section and that, to the best of the trustee's knowledge, the trust is in compliance with this section. (f) The trustee and the public official or public employee shall not communicate about the blind trust, directly or indirectly, except in writing, and a copy of all such written communications shall be transmitted to the commission. (g) If the trust is revoked during the period of the public official's or public employee's tenure in office, then the public official or public employee, within 10 business days, shall file a statement disclosing all of the assets of the trust at the time of its revocation. MS ST 25-4-28.
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