SECOND REGULAR SESSION
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES STEVENSON (Sponsor), BEARDEN, DEMPSEY, WASSON, DEEKEN, WILSON (130), JOHNSON (47), KINGERY, TILLEY, MAY, ERVIN, CUNNINGHAM (86), BEHNEN, WRIGHT (159), FISHER, RUPP, RECTOR, DENISON, FRANZ, SILVEY, DUSENBERG, THRELKELD, SCHLOTTACH, WETER, ROBB, BAKER (123), CUNNINGHAM (145), SCHAD, PEARCE, RUESTMAN, NOLTE, BIVINS, COOPER (155), HOBBS, LOEHNER, RICHARD, CHINN, WOOD, SUTHERLAND, FAITH, NANCE, DAY, JONES, SMITH (150), JETTON AND COOPER (158) (Co-sponsors).
Read 1st time March 8, 2006 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To repeal sections 105.473 and 105.955, RSMo, and to enact in lieu thereof five new sections relating to regulation of conflict of interest and lobbying.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 105.473 and 105.955, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 105.469, 105.471, 105.473, 105.955, and 105.960, to read as follows:
105.469. The general assembly finds and declares that:
(1) The operation of responsible democratic government requires that the fullest opportunity be afforded to the people to petition their government for the redress of grievances and to express freely to appropriate officials their opinions on legislation and governmental operations; and
(2) To preserve and maintain the integrity of the governmental decision-making process in this state, it is necessary that the identity, expenditures, and activities of persons and organizations retained, employed, or designated to influence the passage or defeat of any legislation by either house of the general assembly or the approval or veto of any legislation by the governor, and attempts to influence the adoption or rejection of any rule having the force and effect of law or the outcome of any ratemaking proceeding by a state agency, and attempts to influence the passage or defeat of any local law, ordinance, or regulation be publicly and regularly disclosed.
105.471. 1. No lobbyist shall pay the travel expenses for any member of the general assembly, any member's legislative staff or employees, or any member's spouse or dependent children. This section shall not apply to incidental travel expenses, such as car pooling or ride-sharing arrangements to and from work, or car pooling or ride-sharing arrangements for travel of less than fifty miles to and from meetings, meals, social events, or other similar gatherings or functions.
2. If any individual, corporation, or other entity not otherwise exempt from the reporting requirements of this chapter pays the travel expenses for any member of the general assembly, any member's legislative staff or employees, or any member's spouse or dependent children, such individual, corporation, or other entity shall disclose the total of all such travel expenditures made on behalf of any member of the general assembly, any member's legislative staff or employees, or any member's spouse or dependent children.
105.473. 1. Each lobbyist shall, not later than five days after beginning any activities as a lobbyist, file standardized statement of registration forms, verified by a written declaration that it is made under the penalties of perjury, along with a filing fee of ten dollars, with the commission. The [forms] statements of registration shall include the following:
(1) The lobbyist's name [and], business address, and telephone number;
(2) The name and address of all persons such lobbyist employs for lobbying purposes[,];
(3) The name and address of each lobbyist principal by whom such lobbyist is employed or in whose interest such lobbyist appears or works;
(4) The name, address, and telephone number of the client by whom or on whose behalf the lobbyist is retained, employed, or designated;
(5) A general description of the subject or subjects on which the lobbyist expects to lobby;
(6) The name of the person, organization, or legislative body before which the lobbyist is or expects to lobby;
(7) If the lobbyist is retained, employed, or designated by more than one client, a separate statement of registration shall be required for each such client.
No attorney providing lobbying services shall invoke attorney-client privilege for any client for whom such attorney is providing lobbying services to limit, restrict, or otherwise prevent the disclosures required in subdivisions (1) to (7) of this subsection. The commission shall maintain files on all lobbyists' filings, which shall be open to the public. Each lobbyist shall file an updating statement under oath within one week of any addition, deletion, or change in the lobbyist's employment or representation. The filing fee shall be deposited to the general revenue fund of the state. The lobbyist principal or a lobbyist employing another person for lobbying purposes [may] shall notify the commission that a judicial, executive or legislative lobbyist is no longer authorized to lobby for the principal or the lobbyist and should be removed from the commission's files.
2. Each person shall, before giving testimony before any committee of the general assembly, give to the secretary of such committee such person's name and address and the identity of any lobbyist or organization, if any, on whose behalf such person appears. A person who is not a lobbyist as defined in section 105.470 shall not be required to give such person's address if the committee determines that the giving of such address would endanger the person's physical health.
3. (1) During any period of time in which a lobbyist continues to act as an executive lobbyist, judicial lobbyist or a legislative lobbyist, the lobbyist shall file with the commission on standardized forms prescribed by the commission monthly reports which shall be due at the close of business on the tenth day of the following month;
(2) Each report filed pursuant to this subsection shall include a statement, verified by a written declaration that it is made under the penalties of perjury, setting forth the following:
(a) The total of all expenditures by the lobbyist or his or her lobbyist principals made on behalf of all public officials, their staffs and employees, and their spouses and dependent children, which expenditures shall be separated into at least the following categories by the executive branch, judicial branch and legislative branch of government: printing and publication expenses; media and other advertising expenses; travel; entertainment; honoraria; meals, food and beverages; and gifts;
(b) An itemized listing of the name of the recipient and the nature and amount of each expenditure by the lobbyist or his or her lobbyist principal, including a service or anything of value, for all expenditures made during any reporting period, paid or provided to or for a public official, such official's staff, employees, spouse or dependent children;
(c) The total of all expenditures made by a lobbyist or lobbyist principal for occasions and the identity of the group invited, the date and description of the occasion and the amount of the expenditure for each occasion when any of the following are invited in writing:
a. All members of the senate;
b. All members of the house of representatives;
c. All members of a joint committee of the general assembly or a standing committee of either the house of representatives or senate; or
d. All members of a caucus of the general assembly if the caucus consists of at least ten members, a list of the members of the caucus has been previously filed with the ethics committee of the house or the senate, and such list has been approved by either of such ethics committees;
(d) Any expenditure made on behalf of a public official, or the public official's staff, employees, spouse or dependent children, if such expenditure is solicited by such public official, the public official's staff, employees, or spouse or dependent children, from the lobbyist or his or her lobbyist principals and the name of such person or persons, except any expenditures made to any not-for-profit corporation, charitable, fraternal or civic organization or other association formed to provide for good in the order of benevolence;
(e) A statement detailing any direct business relationship or association or partnership the lobbyist has with any public official.
The reports required by this subdivision shall cover the time periods since the filing of the last report or since the lobbyist's employment or representation began, whichever is most recent.
4. No expenditure reported pursuant to this section shall include any amount expended by a lobbyist or lobbyist principal on himself or herself. All expenditures disclosed pursuant to this section shall be valued on the report at the actual amount of the payment made, or the charge, expense, cost, or obligation, debt or bill incurred by the lobbyist or the person the lobbyist represents. Whenever a lobbyist principal employs more than one lobbyist, expenditures of the lobbyist principal shall not be reported by each lobbyist, but shall be reported by one of such lobbyists.
5. Any lobbyist principal shall provide in a timely fashion whatever information is reasonably requested by the lobbyist principal's lobbyist for use in filing the reports required by this section.
6. All information required to be filed pursuant to the provisions of this section with the commission shall be kept available by the executive director of the commission at all times open to the public for inspection and copying for a reasonable fee for a period of five years from the date when such information was filed.
7. No person shall knowingly employ any person who is required to register as a registered lobbyist but is not registered pursuant to this section. Any person who knowingly violates this subsection shall be subject to a civil penalty in an amount of not more than ten thousand dollars for each violation. Such civil penalties shall be collected by action filed by the commission.
8. No lobbyist shall knowingly omit, conceal, or falsify in any manner information required pursuant to this section.
9. The prosecuting attorney of Cole County shall be reimbursed only out of funds specifically appropriated by the general assembly for investigations and prosecutions for violations of this section.
10. Any public official or other person whose name appears in any lobbyist report filed pursuant to this section who contests the accuracy of the portion of the report applicable to such person may petition the commission for an audit of such report and shall state in writing in such petition the specific disagreement with the contents of such report. The commission shall investigate such allegations in the manner described in section 105.959. If the commission determines that the contents of such report are incorrect, incomplete or erroneous, it shall enter an order requiring filing of an amended or corrected report.
11. The commission shall provide a report listing the total spent by a lobbyist for the month and year to any member or member-elect of the general assembly, judge or judicial officer, or any other person holding an elective office of state government on or before the twentieth day of each month. For the purpose of providing accurate information to the public, the commission shall not publish information in either written or electronic form for ten working days after providing the report pursuant to this subsection. The commission shall not release any portion of the lobbyist report if the accuracy of the report has been questioned pursuant to subsection 10 of this section unless it is conspicuously marked "Under Review".
12. Each lobbyist or lobbyist principal by whom the lobbyist was employed, or in whose behalf the lobbyist acted, shall provide a general description of the proposed legislation or action by the executive branch or judicial branch which the lobbyist or lobbyist principal supported or opposed. This information shall be supplied to the commission on March fifteenth and May thirtieth of each year.
105.955. 1. A bipartisan "Missouri Ethics Commission", composed of six members, is hereby established. The commission shall be assigned to the office of administration with supervision by the office of administration only for budgeting and reporting as provided by subdivisions (4) and (5) of subsection 6 of section 1 of the Reorganization Act of 1974. Supervision by the office of administration shall not extend to matters relating to policies, regulative functions or appeals from decisions of the commission, and the commissioner of administration, any employee of the office of administration, or the governor, either directly or indirectly, shall not participate or interfere with the activities of the commission in any manner not specifically provided by law and shall not in any manner interfere with the budget request of or withhold any moneys appropriated to the commission by the general assembly. All members of the commission shall be appointed by the governor with the advice and consent of the senate from lists submitted pursuant to this section. Each congressional district committee of the political parties having the two highest number of votes cast for their candidate for governor at the last gubernatorial election shall submit two names of eligible nominees for membership on the commission to the governor, and the governor shall select six members from such nominees to serve on the commission.
2. Within thirty days of submission of the person's name to the governor as provided in subsection 1 of this section, and in order to be an eligible nominee for appointment to the commission, a person shall file a financial interest statement in the manner provided by section 105.485 and shall provide the governor, the president pro tempore of the senate, and the commission with a list of all political contributions and the name of the candidate or committee, political party, or continuing committee, as defined in chapter 130, RSMo, to which those contributions were made within the four-year period prior to such appointment, made by the nominee, the nominee's spouse, or any business entity in which the nominee has a substantial interest. The information shall be maintained by the commission and available for public inspection during the period of time during which the appointee is a member of the commission. In order to be an eligible nominee for membership on the commission, a person shall be a citizen and a resident of the state and shall have been a registered voter in the state for a period of at least five years preceding the person's appointment.
3. The term of each member shall be for four years, except that of the members first appointed, the governor shall select three members from even-numbered congressional districts and three members from odd-numbered districts. Not more than three members of the commission shall be members of the same political party, nor shall more than one member be from any one United States congressional district. Not more than two members appointed from the even-numbered congressional districts shall be members of the same political party, and no more than two members from the odd-numbered congressional districts shall be members of the same political party. [Of the members first appointed, the terms of the members appointed from the odd-numbered congressional districts shall expire on March 15, 1994, and the terms of the members appointed from the even-numbered congressional districts shall expire on March 15, 1996. Thereafter all successor] Members of the commission shall be appointed for four-year terms. Terms of successor members of the commission shall expire on March fifteenth of the fourth year of their term. No member of the commission shall serve on the commission after the expiration of the member's term. No person shall be appointed to more than one full four-year term on the commission.
4. Vacancies or expired terms on the commission shall be filled in the same manner as the original appointment was made, except as provided in this subsection. Within thirty days of the vacancy or ninety days before the expiration of the term, the names of two eligible nominees for membership on the commission shall be submitted to the governor by the congressional district committees of the political party or parties of the vacating member or members, from the even- or odd-numbered congressional districts, based on the residence of the vacating member or members, other than from the congressional district committees from districts then represented on the commission and from the same congressional district party committee or committees which originally appointed the member or members whose positions are vacated. Appointments to fill vacancies or expired terms shall be made within forty-five days after the deadline for submission of names by the congressional district committees, and shall be subject to the same qualifications for appointment and eligibility as is provided in subsections 2 and 3 of this section. Appointments to fill vacancies for unexpired terms shall be for the remainder of the unexpired term of the member whom the appointee succeeds, and such appointees shall be eligible for appointment to one full four-year term. If the congressional district committee does not submit the required two nominees within the thirty days or if the congressional district committee does not submit the two nominees within an additional thirty days after receiving notice from the governor to submit the nominees, then the governor may appoint a person or persons who shall be subject to the same qualifications for appointment and eligibility as provided in subsections 2 and 3 of this section.
5. The governor, with the advice and consent of the senate, may remove any member only for substantial neglect of duty, inability to discharge the powers and duties of office, gross misconduct or conviction of a felony or a crime involving moral turpitude. Members of the commission also may be removed from office by concurrent resolution of the general assembly signed by the governor. If such resolution receives the vote of two-thirds or more of the membership of both houses of the general assembly, the signature of the governor shall not be necessary to effect removal. The office of any member of the commission who moves from the congressional district from which the member was appointed shall be deemed vacated upon such change of residence.
6. The commission shall elect biennially one of its members as the [chairman] chair. The [chairman may] chair shall not succeed himself or herself after two years. No member of the commission shall succeed as [chairman] chair any member of the same political party as himself or herself. At least four members are necessary to constitute a quorum, and at least four affirmative votes shall be required for any action or recommendation of the commission.
7. No member or employee of the commission, during the person's term of service, shall hold or be a candidate for any other public office.
8. In the event that a retired judge is appointed as a member of the commission, the judge shall not serve as a special investigator while serving as a member of the commission.
9. No member of the commission shall, during the member's term of service or within one year thereafter:
(1) Be employed by the state or any political subdivision of the state;
(2) Be employed as a lobbyist;
(3) Serve on any other governmental board or commission;
(4) Be an officer of any political party or political organization;
(5) Permit the person's name to be used, or make contributions, in support of or in opposition to any candidate or proposition;
(6) Participate in any way in any election campaign; except that a member or employee of the commission shall retain the right to register and vote in any election, to express the person's opinion privately on political subjects or candidates, to participate in the activities of a civic, community, social, labor or professional organization and to be a member of a political party.
10. Each member of the commission shall receive, as full compensation for the member's services, the sum of one hundred dollars per day for each full day actually spent on work of the commission, and the member's actual and necessary expenses incurred in the performance of the member's official duties.
11. The commission shall appoint an executive director who shall serve subject to the supervision of and at the pleasure of the commission, but in no event for more than six years. The executive director shall be responsible for the administrative operations of the commission and perform such other duties as may be delegated or assigned to the director by law or by rule of the commission. The executive director shall employ staff and retain such contract services as the director deems necessary, within the limits authorized by appropriations by the general assembly.
12. [Beginning on January 1, 1993,] All lobbyist registration and expenditure reports filed pursuant to section 105.473, financial interest statements filed pursuant to subdivision (1) of section 105.489, and campaign finance disclosure reports filed other than with election authorities or local election authorities as provided by section 130.026, RSMo, shall be filed with the commission.
13. [Within sixty days of the initial meeting of the first commission appointed,] The commission shall obtain from the clerk of the supreme court or the state courts administrator a list of retired appellate and circuit court judges who did not leave the judiciary as a result of being defeated in an election. The executive director shall determine those judges who indicate their desire to serve as special investigators and to investigate any and all complaints referred to them by the commission. The executive director shall maintain an updated list of those judges qualified and available for appointment to serve as special investigators. Such list shall be updated at least annually. The commission shall refer complaints to such special investigators on that list on a rotating schedule which ensures a random assignment of each special investigator. Each special investigator shall receive only one unrelated investigation at a time and shall not be assigned to a second or subsequent investigation until all other eligible investigators on the list have been assigned to an investigation. In the event that no special investigator is qualified or available to conduct a particular investigation, the commission may appoint a special investigator to conduct such particular investigation.
14. The commission shall have the following duties and responsibilities relevant to the impartial and effective enforcement of sections 105.450 to 105.496 and chapter 130, RSMo, as provided in sections 105.955 to [105.963] 105.981:
(1) Receive and review complaints regarding alleged violation of sections 105.450 to 105.496 and chapter 130, RSMo, conduct initial reviews and investigations regarding such complaints as provided herein; refer complaints to appropriate prosecuting authorities and appropriate disciplinary authorities along with recommendations for sanctions; and initiate judicial proceedings as allowed by sections 105.955 to [105.963] 105.981;
(2) Review and audit any reports and statements required by the campaign finance disclosure laws contained in chapter 130, RSMo, and financial interest disclosure laws or lobbyist registration and reporting laws as provided by sections 105.470 to 105.492, for timeliness, accuracy and completeness of content as provided in sections 105.955 to [105.963] 105.981;
(3) Develop appropriate systems to file and maintain an index of all such reports and statements to facilitate public access to such information, except as may be limited by confidentiality requirements otherwise provided by law, including cross-checking of information contained in such statements and reports. The commission may enter into contracts with the appropriate filing officers to effectuate such system. Such filing officers shall cooperate as necessary with the commission as reasonable and necessary to effectuate such purposes;
(4) Provide information and assistance to lobbyists, elected and appointed officials, and employees of the state and political subdivisions in carrying out the provisions of sections 105.450 to 105.496 and chapter 130, RSMo;
(5) Make recommendations to the governor and general assembly or any state agency on the need for further legislation with respect to the ethical conduct of public officials and employees and to advise state and local government in the development of local government codes of ethics and methods of disclosing conflicts of interest as the commission may deem appropriate to promote high ethical standards among all elected and appointed officials or employees of the state or any political subdivision thereof and lobbyists;
(6) Render advisory opinions as provided by this section;
(7) Promulgate rules relating to the provisions of sections 105.955 to [105.963] 105.981 and chapter 130, RSMo. All rules and regulations issued by the commission shall be prospective only in operation;
(8) Request and receive from the officials and entities identified in [subdivision (6) of] section 105.450 [designations of] as decision-making public servants;
(9) Conduct a program of random audits as authorized in section 105.960.
The commission shall have jurisdiction to exercise the powers and duties of the commission authorized by law with respect to elected and appointed public officials and employees, lobbyists, and candidates for elective office, and any other persons subject to the provisions of sections 105.450 to 105.496 and chapter 130, RSMo, for any time during the service of such persons or while such persons are candidates for elective office. The jurisdiction of the commission shall continue regarding actions taken by such persons during their service or candidacy for one year after termination or resignation of such service or candidacy notwithstanding the fact that the person has separated from state service or ceases to hold public office, or ceases to be a lobbyist or candidate for elective office.
15. In connection with such powers provided by sections 105.955 to [105.963] 105.981 and chapter 130, RSMo, the commission may:
(1) Subpoena witnesses and compel their attendance and testimony. Subpoenas shall be served and enforced in the same manner provided by section 536.077, RSMo;
(2) Administer oaths and affirmations;
(3) Take evidence and require by subpoena duces tecum the production of books, papers, and other records relating to any matter being investigated or to the performance of the commission's duties or exercise of its powers. Subpoenas duces tecum shall be served and enforced in the same manner provided by section 536.077, RSMo;
(4) Employ such personnel, including legal counsel, and contract for services including legal counsel, within the limits of its appropriation, as it deems necessary provided such legal counsel, either employed or contracted, represents the Missouri ethics commission before any state agency or before the courts at the request of the Missouri ethics commission. Nothing in this section shall limit the authority of the Missouri ethics commission as provided for in subsection 2 of section 105.961; and
(5) Obtain information from any department, division or agency of the state or any political subdivision reasonably calculated to lead to the discovery of evidence which will reasonably assist the commission in carrying out the duties prescribed in sections 105.955 to [105.963] 105.981 and chapter 130, RSMo.
16. (1) Upon written request for an advisory opinion received by the commission, and if the commission determines that the person requesting the opinion would be directly affected by the application of law to the facts presented by the requesting person, the commission shall issue a written opinion advising the person who made the request, in response to the person's particular request, regarding any issue that the commission can receive a complaint on pursuant to section 105.957. The commission may decline to issue a written opinion by a vote of four members and shall provide to the requesting person the reason for the refusal in writing. The commission shall give an approximate time frame as to when the written opinion shall be issued. Such advisory opinions shall be issued no later than ninety days from the date of receipt by the commission. Such requests and advisory opinions, deleting the name and identity of the requesting person, shall be compiled and published by the commission on at least an annual basis. Advisory opinions issued by the commission shall be maintained and made available for public inspection and copying at the office of the commission during normal business hours. Any advisory opinion or portion of an advisory opinion rendered pursuant to this subsection shall be withdrawn by the commission if, after hearing thereon, the joint committee on administrative rules finds that such advisory opinion is beyond or contrary to the statutory authority of the commission or is inconsistent with the legislative intent of any law enacted by the general assembly, and after the general assembly, by concurrent resolution, votes to adopt the findings and conclusions of the joint committee on administrative rules. Any such concurrent resolution adopted by the general assembly shall be published at length by the commission in its publication of advisory opinions of the commission next following the adoption of such resolution, and a copy of such concurrent resolution shall be maintained by the commission, along with the withdrawn advisory opinion, in its public file of advisory opinions. The commission shall also send a copy of such resolution to the person who originally requested the withdrawn advisory opinion. Any advisory opinion issued by the ethics commission shall act as legal direction to any person requesting such opinion and no person shall be liable for relying on the opinion and it shall act as a defense of justification against prosecution. An advisory opinion of the commission shall not be withdrawn unless:
(a) The authorizing statute is declared unconstitutional;
(b) The opinion goes beyond the power authorized by statute; or
(c) The authorizing statute is changed to invalidate the opinion.
(2) Upon request, the attorney general shall give the attorney general's opinion, without fee, to the commission, any elected official of the state or any political subdivision, any member of the general assembly, or any director of any department, division or agency of the state, upon any question of law regarding the effect or application of sections 105.450 to 105.496, or chapter 130, RSMo. Such opinion need be in writing only upon request of such official, member or director, and in any event shall be rendered within sixty days [that] of delivery of such request [is delivered] to the attorney general.
17. The state auditor and the state auditor's duly authorized employees who have taken the oath of confidentiality required by section 29.070, RSMo, may audit the commission and in connection therewith may inspect materials relating to the functions of the commission. Such audit shall include a determination of whether appropriations were spent within the intent of the general assembly, but shall not extend to review of any file or document pertaining to any particular investigation, audit or review by the commission, an investigator or any staff or person employed by the commission or under the supervision of the commission or an investigator. The state auditor and any employee of the state auditor shall not disclose the identity of any person who is or was the subject of an investigation by the commission and whose identity is not public information as provided by law.
18. From time to time but no more frequently than annually, the commission may request the officials and entities described [in subdivision (6) of] as decision-making public servants in section 105.450 to identify for the commission in writing those persons associated with such office or entity which such office or entity has designated as a decision-making public servant. Each office or entity delineated [in subdivision (6) of] as decision-making public servants under section 105.450 receiving such a request shall identify those so designated within thirty days of the commission's request.
105.960. In addition to the duties of the commission under section 105.955, the commission is authorized and empowered to conduct a program of random audits subject to the terms and conditions of this section. Any such program shall be carried out in the following manner:
(1) The commission may randomly select reports or registration statements required to be filed by lobbyists or clients under section 105.469 for audit. Any such selection shall be done in a manner under which the identity of any particular lobbyist or client whose statement or report is selected for audit is unknown to the commission, its staff, or any of their agents prior to selection;
(2) The commission shall develop protocols for the conduct of such random audits. Such random audits may require the production of books, papers, records, or memoranda relevant and material to the preparation of the selected statement or reports for examination by the commission. Any such protocols shall ensure that similarly situated statements or reports are audited in a uniform manner;
(3) The commission shall contract with an outside accounting entity which shall monitor the process under which the commission selects statements or reports for audit and carries out the provisions of subdivisions (1) and (2) of this subsection and certifies that such process complies with the provisions of subdivisions (1) and (2) of this subsection;
(4) Upon completion of a random audit conducted in accordance with this section, the commission shall determine whether there is reasonable cause to believe that any such statement or report is inaccurate or incomplete. Upon a determination that such reasonable cause exists, the commission may require the production of further books, records, or memoranda, subpoena witnesses, compel their attendance and testimony, and administer oaths or affirmations to the extent the commission determines such actions are necessary to obtain information relevant and material to investigating such inaccuracies or omissions.
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