SPECIAL ETHICS LAW MEMO
To: Regulated Lobbyists, Prospective
Regulated Lobbyists, Employers, and Interested Persons
Subject: Lobbying Law Provisions – Frequently Asked
Questions
The lobbying provisions of the Public Ethics Law were amended substantially during both the 2001 and 2002 legislative sessions. This memorandum addresses questions that have been asked frequently of Commission staff regarding the amendments to the law and the Commission’s implementation of the changes. The memorandum has been prepared by the Commission staff based on prior Commission opinions and interpretation of the lobbying provisions, the history of the lobbying registration program, and guidance provided by the report issued by the Study Commission on Lobbyist Ethics (“Study Commission”). Although the Commission has reviewed this document, its contents do not constitute an advisory opinion of the Commission. Should you have any questions related to specific factual situations not addressed by this or other Commission memoranda, you should request advice from the Commission staff.
QUESTIONS AND ANSWERS
A. Lobbying
Registration Requirements
1. How
have the registration requirements changed for persons who “communicate” with
officials or employees to influence “legislative action” or “executive action?”
Answer: The registration requirements set forth in § 15-701 have been amended as follows:
· Raises the threshold of compensation earned from lobbying employers for “in-the-presence of” lobbying from $500 per client to $2,500 cumulatively from all lobbying employers and provides that calculation of the $2,500 include all such communication and activities relating to the communication during the reporting period.
·
Raises the expense threshold per client
that requires the person to register as a lobbyist from $100 to $500.
·
Changes the calculation of the $5,000 of
compensation earned from lobbying employers for “not-in-the-presence-of” lobbying
to include all such communication and activities relating to the
communication during the reporting period.
·
Changes the amount of expenditure by an entity as
compensation for lobbying activities from $500 to $2,500.
· Exempts from the expense threshold requirement to register an elementary, secondary, or postsecondary school student or student organization that communicates as part of a course or student activity.
·
Exempt from registration volunteer and pro bono activities by
attorneys, who are not employed by the organized bar as regulated lobbyists, in
the course of serving as an officer, committee or section chair, or representative
designated to represent a section, committee, or the organized bar at large, including: testimony before either the
Senate or the House of Delegates; testimony before a committee or subcommittee
of the Senate or the House of Delegates; communication with an official or
employee of the Legislative Branch or Executive Branch in the presence of that
official or employee; or communication with an official or employee of the
Legislative Branch or Executive Branch not in the presence of that official or
employee.
· If you are a registered lobbyist for any employer or any purpose and you seek to secure a business grant or loan for an employer, you must register as a lobbyist for that employer.
·
If you are not a registered lobbyist for any
employer or any purpose and you engage in no other acts during the reporting
period that require registration, you need not register as a
lobbyist for seeking to secure for an employer a business grant or loan for the
purposes of locating, relocating or expanding a business in or into the State.
·
The law did not change with regard to the $100
threshold for gifts for executive branch lobbying, the procurement registration
requirements, or grassroots lobbying requirements.
2. In
a situation in which a lobbyist arranges for a group to come to Annapolis for
an Annapolis Day or a Meet-and-Greet reception, what are the reporting
requirements for a registered lobbyist if no one from the employer or
association is required to register?
Answer: The registered lobbyist is required to report the expenses associated with the activity. This includes compensation paid to the employee(s) and official(s) of the employer or association who participated in the activity as well as related expenses for the lobbying effort.
3. How
does the registration exemption work for individuals testifying before a
legislative committee at a lobbyist’s request?
Answer: If the individual engages in no other activities during the reporting period that require registration, and the individual notifies the committee that he or she is testifying at the request of a regulated lobbyist, the individual is not required to register as a lobbyist. The exemption requires that both conditions be met. If the individual testifies and then follows-up with visits and phone calls to legislators, registration would be required when the compensation, expense or gift giving standard has been met.
4. What
are the registration exemptions for executive branch lobbying?
Answer: If the individual engages in no other actions requiring registration and no gifts are made during the reporting period at or above the $100 threshold:
· Appearances before an executive unit at the request of the executive unit involved. The exemption applies if a person is asked to provide information to a State agency and his or her activity is limited to meetings with agency representatives pursuant to that particular request from the agency. Generally, this will be a documented request and involve a specific and time limited activity.
· Appearances before an executive unit at the specific request of a regulated lobbyist. This exemption is broader than the one above in that it can be triggered by a lobbyist rather than by an agency request, but it is narrower in that it contemplates serving as a witness at something more than a meeting with agency staff. It contemplates a formal structured assembly, hearing, or equivalent. For example, an agency may hold an open meeting to get formal comments on proposed or existing regulations. A lobbyist may want to ask client, staff or other experts to make presentations. Generally, ordinary business contacts with agencies do not include activities that can be considered as witness testimony.
· A person seeking to secure a business grant or loan for the purpose of locating, relocating or expanding a business into the State who is not a regulated lobbyist for any other purpose.
·
A bona fide full-time official or employee of a business
entity seeking to secure a business grant or loan.
5. Are
there any general exemptions from the requirement to register as a lobbyist?
6. If
the Executive Director of an organization holds a special event in Annapolis to
educate legislators on the purposes of the organization, is the Executive
Director required to register? Is the
organization required to register?
Answer: The Executive Director would need to register if he or she was “in the presence” for the purpose of influencing legislative action and received cumulative compensation of $2,500 for all such communication and activities. The Commission recognizes that the purpose of special events is to help organization members and State officials get to know each other. This purpose does not exclude the consideration that such events are also designed to create a favorable atmosphere among legislators or members of the executive branch for the consideration of legislative or executive action, present or future. If the organization’s special event expenditures exceed $500 during the given reporting period, it must register as well.
7. If,
as part of an organization’s lobbying efforts, they publish a newsletter that
may include articles designed to encourage its members to “communicate” the
organization’s position to legislators, are the members who do communicate with
legislators required to register? What
is the obligation of the organization to advise the members of the registration
requirements?
Answer: The law requires registration for persons who “communicate with officials or employees to influence “legislative action” or “the development or adoption of regulations or the development or issuance of an executive order” to register if they earn at least $5,000 cumulatively as compensation for such activity during the six-month lobbying reporting period. Therefore, if an individual, responding to a “grass roots” publication in fact makes phone calls, sends emails, or otherwise communicates with legislators, and is compensated at least $5,000 cumulatively for these efforts, he or she is required to register.
Organizations implementing grass
roots lobbying programs may want to advise their members of this registration
requirement. The organization itself,
as a general matter, is not necessarily required to report the activities of
individuals responding to a grass roots publication to contact officials or
legislators.
8. Is
a law firm with registered lobbyists required to register as a firm where it
hosts an event for legislators on behalf of one of its lobbying clients? What if the law firm says it is sponsoring
the event for marketing purposes, but firm lobbyists will be attending the
reception “on behalf of” lobbying
clients?
Answer: Yes. The event would place the law firm in the presence of legislative officials for the purpose of influencing legislative actions because of the activity of firm attorneys who are lobbyists on behalf of the client. If the expenses for the event exceed $500 during the six-month lobbying reporting period, registration and reporting is required. The lobbyist must be mindful that § 15-713 prohibits the lobbyist from requesting an official or employee to recommend to a potential client the services of a regulated lobbyist.
9. Does
a member of the board of directors of a non-profit organization, who also is
the President of his own business that is unrelated to the non-profit
organization, need to register as a lobbyist if he or she comes to Annapolis
and appears as part of the Bond Day activities and testifies?
Answer: Similar to the Annapolis Day events, the Commission recognizes that the purpose of the statute is to disclose lobbyists’ activities and not to require an infrequent visitor to register and report in situations in which the testimony is limited and part of a standard and recognized legislative process. Absent any additional lobbying activity that takes the individual over the spending or compensation thresholds, the board member is unlikely to reach the compensation standard and because his or her testimony at the request of a regulated lobbyist would be exempt from registration.
10. If a
non-registered individual sits on a State board or commission that is subject
to the Public Ethics Law and has members who are legislators or executive
officials, and the board or commission discusses legislation, must the
individual register as a lobbyist?
Answer: Absent other facts requiring registration,
service on the board with legislators and executive officials does not trigger
the need to register as a lobbyist. The
individual serving on the board is a public official and has a duty of loyalty
to the Board.
11. Does an
out-of-State lobbyist who comes into Maryland only a few days each session need
to attend the lobbying training?
Answer: The lobbyist will need to attend the
required training if he or she is registered in any two consecutive year
period. There is no exception in the
law, § 15-205(e)(ii), addressing this circumstance. The Commission anticipates the future development of a training
program that will be available on-line.
B. MEAL OR RECEPTION FOR A LEGISLATIVE UNIT, INVITATION AND REPORTING
1. What is required to be reported for meal and reception special events?
Answer: If a regulated lobbyist plans to hold a legislative meal or reception event, § 15-708 provides the following general requirements:
· The invitees must be a qualified group. Qualified groups include all members of the General Assembly, either house thereof, all members of any standing committee or all members of a formally recognized (for ethics disclosure purposes) county or regional delegation;
· At least five days before the event, there must be a written invitation to all members of the legislative unit and an invitation disclosure form (Form No. 13E) must be filed with the Department of Legislative Services at 90 State Circle, Annapolis, MD 21401.
· Within fourteen days after the event, the lobbyist must file an expenditure report with the State Ethics Commission, 45 Calvert Street, 3rd Floor, Annapolis, MD 21401.
2. Are
tickets and free admission to members of a legislative unit to attend
charitable, cultural and political events included in the disclosure reports
required by § 15-708?
Answer: No. Tickets and free admissions to attend charitable, cultural and political events may be extended only by the sponsor of the event and not by a regulated lobbyist. Section 15-704(b)(x) of the Public Ethics Law governs the reporting requirements and requires that the lobbyist report this on the General Lobbyist Activity Report (Ethics Form No. 4) within 30 days after the end of the six-month lobbying reporting period.
3. Do
the reporting requirements of § 15-708 apply if the lobbyist invites a
legislative unit to a meeting at which either no food and beverages or only
snacks and beverages are served, but no meal is served?
Answer: If it is a meeting with no food, beverages or entertainment, the reporting provisions of § 15-708 do not apply. If snacks, finger foods, and/or beverages are served, then the reporting provisions of § 15-708 (the five-day notice on Form 13E and the 14-day report on Form 13F) apply and the reports must be filed.
4. If
a lobbyist invites a legislative unit to (a) a ceremonial reception to which
the public is also invited and (b) to a regular membership meeting of an
association, must the lobbyist file a five-day notice and a fourteen-day
report? Does the lobbyist need to
report the “total cost” of the event if only one or two legislators attend a public
event, or should the lobbyist prorate the legislative share?
Answer: The five-day notice must be filed for both a ceremonial reception to which the public is also invited and for a regular membership meeting of an association to which a legislative unit has been invited. With regard to whether the lobbyist needs to report the “total cost” on the fourteen-day report if only one or two legislators appeared will need to be addressed on an individual basis in accordance with the specific circumstances involved. The Commission staff has received numerous questions related to “total cost” reporting requirement for the event, particularly if the event is open to the public or others and a legislative unit is invited as a matter of courtesy or ceremony. Under these circumstances, the lobbyist should speak to Commission staff for advice. The statute speaks in terms of “total cost” but the Commission’s concern is focused on accurate disclosure of the costs associated with the meals for the legislators and officials. The best practice is to report the total cost, the number of legislators attending, and the per capita cost. Again, any specific questions should be directed to the Commission staff.
5. If
a lobbyist hosts a meal or reception for a legislative unit and, as part of the
event, gifts, flowers, or some other mementos were given to either members of
the legislative unit or to Executive elected officials, how is this expense
reported?
Answer: The 14-day report (Form #13F) should include the total cost of the meal or reception, but should not reflect the cost of any gifts, flowers or mementos. Any gifts associated with the meal or reception should be disclosed on line B-6 of the General Lobbying Activity Report (Form #4) filed at the end of the six-month reporting period. If one or more of the four elected Executive officials (Governor, Lt. Governor, Attorney General, or Comptroller) attends the reception, in addition to including the cost related to the official(s) on the 14-day report, a Form #13A or #13B should be submitted with the General Lobbying Activity Report at the end of the reporting period. Gifts of meals and beverages to these four elected Executive officials must be disclosed regardless of the dollar amount.
6. An
organization has a ticketed fundraising event for the organization that is
funded solely by its members and does not cost the organization any money. If members of the General Assembly are
invited to attend and given tickets by the sponsoring organization, what should
be reported on line B-5 of the Lobbying Activity Report (Form #4)?
Answer: The face value of the ticket should be reported on the Activity Report.
7. If
all members of a legislative unit are invited to speak at a meal or reception
of members of an association or entity pursuant to § 15-505(c)(2)(vi), are the
five-day notice and fourteen-day report required?
Answer: No.
If all members of a legislative unit are invited to participate on a
panel or a speaking engagement at a meeting pursuant to § 15-505(c)(2)(vi),
notice and reporting are not required pursuant to § 15-708. However, the lobbyist must report the
expenses related to this activity on the General Lobbying Activity Report (Form
#4) pursuant to § 15-704(b)(ix).
C. LOBBYIST CAMPAIGN FINANCE ACTIVITY LIMITATIONS
1. What
are the limitations on a lobbyist’s ability to solicit and transmit campaign
contributions?
Answer: In accordance with § 15-714, a lobbyist who lobbies the executive or Legislative branch of State government, or a person acting on behalf of the lobbyist may not, for the benefit of the Governor, Lt. Governor, Attorney General, Comptroller, member of the General Assembly or a candidate for these offices engage in the following activities:
· Solicit or transmit a contribution from any person or political committee.
· Serve on a fund raising committee or a political committee.
· Act as a treasurer for a candidate or official, or treasurer, or chairman of a political committee.
· Organize or establish a political committee for the purpose of soliciting or transmitting contributions from any person.
· Forward tickets for fundraising activities or other solicitations for political contributions to a potential contributor.
The Public Ethics Law specifically allows the lobbyist to 1) make a personal political contribution under the Election Law and 2) inform the lobbyist’s employer, or others of the position taken by a particular candidate for office. The law allows activities not specifically prohibited.
2. How
does the Commission interpret the language regarding a person acting on behalf
of a lobbyist?
Answer: The purpose of the language is to close the loop-hole that might permit a non-lobbyist to act on behalf of a lobbyist to carry out prohibited campaign finance activities. Persons engaged in soliciting or transmitting contributions should not do so under the direction, supervision, or control of a regulated lobbyist. The test is whether the non-lobbyist is acting on behalf of the lobbyist in carrying out prohibited solicitation and transmittal activities. If a lobbyist or a group of lobbyists owns a law firm or lobbying firm, the Commission generally will presume that the firm’s employees are acting on behalf of a lobbyist.
3. May
an Executive Director of a non-profit advocacy organization who is required to
register as a lobbyist participate in PAC activities?
Answer: Assuming the lobbyist is not serving on a fundraising committee or acting as an officer or treasurer of a committee, the lobbyist may perform very limited ministerial tasks that do not amount to solicitation, transmittal, contribution or organizing a PAC. Great care should be taken to avoid activities that could identify or otherwise directly involve the lobbyist as making, soliciting, transmitting or organizing a committee. For example, lobbyists should not write texts for fundraising appeals; contact, schedule, or attend meetings with potential contributors; facilitate events by contacting potential hosts for fundraising activities; or participate in telemarketing activities. The lobbyist should not direct the staff in these activities and the lobbyist’s name should not appear on contribution solicitations or transmittal documents.
4. Is
the Executive Director of a non-profit advocacy organization who is required to
register as a lobbyist permitted to do the computer bookkeeping for a PAC?
Answer: If the bookkeeping is limited to the use of a computer program and has no soliciting or transmitting activity, it is a permissible activity, but any reports or filings should be signed and delivered by the Treasurer, who is not a lobbyist. The best practice would have the lobbyist avoid any PAC activity in order to assure compliance with the law.
5. May
the Executive Director of a non-profit advocacy organization who is required to
register as a lobbyist forward mail to the PAC chairman? The organization and the PAC have the same
mailing address, and the lobbyist or lobbyist’s staff sorts the mail.
Answer: The registered lobbyist may not forward solicitations from covered officials or candidates. The best practice under the circumstances is to have separate mailing addresses for the organization and the organization related PAC.
6. What
should a registered lobbyist do with fundraising tickets he or she receives in
the mail?
Answer: The lobbyist may accept the tickets for his or her own personal use. The law specifically permits the lobbyist to make personal contributions. The tickets may also be discarded or returned to the sender.
7. If
the registered lobbyist returns the tickets to the sender, may he or she advise
the sender of the appropriate mailing address for his or her employer or
employer’s PAC? If asked by a
legislator, may a registered lobbyist provide a list of his or her employers
for political contribution purposes?
Answer: Yes, but it must be done in all instances and without any solicitation language. The answer to the second question is also yes, but the list should include all employers.
8. The
law permits political action committees of an affiliated entity to collect
contributions paid voluntarily by members’ voluntary contributions by members
through payroll deductions together with payroll withholdings from employees
that are made for the payment of dues to the affiliated entity. May an
employee-lobbyist of the affiliated entity prepare and send dues billing
statements to its members containing a request for a voluntary contribution to
the PAC, assuming the PAC solicits and transmits contributions to the State
officials and candidates covered by the law?
Answer: No. The law specifically prohibits soliciting of contributions. It also should not be done by anyone acting on behalf of the lobbyist.
9. May
a contract lobbyist respond to questions from his or her employer(s) providing
advice as to whether or not it should organize a PAC?
Answer: If the lobbyist is asked, he or she may advise the employer that a PAC may be a good or bad idea. If asked how to organize a PAC, the lobbyist may advise only that the employer should contact the State Board of Elections for that information. The lobbyist should have no other activity related to participating in the organization of a PAC for one of his or her clients.
10. If asked by
an employer about a State official or candidate covered by the law, how should
the lobbyist respond?
Answer: The lobbyist may say anything if he or she does not engage in soliciting, transmitting or other specific conduct prohibited under the statute. The general intent of the legislation is that communication with employers should not be limited except in the circumstances prohibited by the law. For example, a lobbyist may respond to reasonably contemporaneous contribution related questions from his or her employer regarding a State official or candidate. Discussions may include substantive evaluation and may also include specific contribution recommendations if such information is requested. The central test for compliance with § 15-714 is whether the lobbyist’s conduct is in fact a solicitation or transmittal of a contribution in violation of the statute. A key factor in evaluating this activity is whether the lobbyist is responding to an inquiry or initiating a solicitation.
11. If asked by
a legislator, may a lobbyist prepare and give to the legislator a list of
appropriate PAC contact persons for all of his or her clients?
Answer: Yes, if it is done in response to a legislator’s request for the information, and the list is provided to any legislator who makes such a request.
12. If the
owner of a business that makes occasional political contribution and has an
affiliated PAC finds that he has to register as a lobbyist due to having met the
expense threshold, do the limitations on soliciting or transmitting campaign
contributions affect his business’ political contributions and the affiliated
PAC contribution? The owner of the
business signs all of the checks.
Answer: If the owner of the business were to designate an employee to solicit and transmit a contribution, the employee would appear to be a person acting on behalf of the owner and would be considered to be under the direction and control of the owner. Under the circumstances described, the business and the affiliated PAC would not be able to make political contributions to State officials and candidates covered by the Public Ethics Law.
13. How do the
restrictions on campaign contributions have an impact on lobbyists who choose to
be candidates for elective office?
Answer: Section 15-714 prohibits regulated lobbyists from “soliciting and transmitting” campaign contributions on behalf of the Governor, Lt. Governor, Attorney General, Comptroller, members of the General Assembly or candidates for those offices. It does not prohibit personal contributions. The law also addresses situations in which the regulated lobbyist is a candidate for office. Section 15-714(d)(3) provides that the section does not apply to “…a regulated lobbyist who is a candidate with respect to the regulated lobbyist’s own campaign….” The Commission views this section as allowing the individual to solicit campaign contributions for his or her personal campaign after he or she files the certificate of candidacy with the appropriate elections office. It does not, however, allow the lobbyist-candidate to transfer funds raised by his or her campaign to the benefit of other State officials and candidates covered by the restrictions in the law. Therefore, transfers from the lobbyist-candidate’s campaign to slate and other candidates’ campaign accounts would not be allowed if covered officials and candidates are involved.
14. With regard
to reporting a lobbyist’s personal campaign contributions, what date should be used
to determine the date of the contribution?
Does a lobbyist need to report an independent contribution by a spouse
on a joint checking account?
Answer: The effective date of the contribution is the date it was mailed or delivered. With regard to the joint bank account, the Commission will not “go behind” the signature on the check, and it would presume that the spouse’s check was issued as an independent contribution. However, this is a rebuttable presumption.
15. May a lobbyist solicit contributions for
a major political party?
Answer: If any of the money is to be used for the benefit of a member of the General Assembly or one of the four statewide executive offices or a candidate for one of those offices, the lobbyist may not solicit contributions. If the money is to pay only for administrative and overhead costs of the party’s offices, the solicitation is permissible.
16. May a
lawyer-lobbyist do the legal work to form a PAC for his lobbyist client? May a lawyer-lobbyist do the legal work to
form a PAC for his non-lobbying client?
May a lawyer-lobbyist refer his lobbyist client to a partner in his or
her law firm to do the legal work to form a PAC?
Answer: No. Section 15-714(d)(iv) prohibits a
regulated lobbyist, or a person acting on behalf of a regulated lobbyist, from
organizing or establishing a political action committee for the benefit of the
Governor, Lt. Governor, Attorney General, Comptroller, or a member of the
General Assembly, or a candidate for any of those offices. The plain meaning of “organize” is to put in
working order, which the drafting of legal documents would do. The same answer pertains to doing legal work
to form a PAC for a non-lobbying client and for referring the work to a partner
in the firm.
D. INDIVIDUAL LOBBYIST CAMPAIGN CONTRIBUTION REPORTING
1. What
lobbyist campaign contributions are reportable under § 15-707 of the Public
Ethics Law?
Answer: At
the time of filing the six-month lobbying activity report, a regulated lobbyist
must disclose on a separate report any
contributions made directly or indirectly
by the individual regulated lobbyist during the reporting period, as required
in the Election Article, for the benefit of the Governor, Lt. Governor,
Attorney General, Comptroller, member of the General Assembly or candidate for
election to any of those offices. The
lobbyist must report contributions to a political committee for an applicable
candidate or a slate in which the candidate is a member, contributions to a PAC
created to support a specific candidate or a group of candidates, or a PAC
contribution if a contribution is designated for transfer to a particular
candidate or candidates. The lobbyist
must also report contributions which the lobbyist directs or arranges for
another person to make the contribution and the funds contributed may be
considered to be the lobbyist’s funds or, in some special way, under the
lobbyist’s control. The contributions
must be reported on Ethics Form #22.
2. Does
a lobbyist with multiple clients need to file a report of contributions form
(Ethics Form #22) with each of the General Lobbying Activity Report forms for
each of the lobbyist’s clients, or may the lobbyist file just one Form #22?
Answer: The lobbyist is required to file only one form #22 during the six-month lobbying reporting period listing all reportable campaign contributions.
E. CAMPAIGN CONTRIBUTION REPORTS BY EMPLOYERS OF LOBBYISTS
1. Section
15-715 of the Public Ethics Law addresses a lobbyist’s employer’s campaign
contribution disclosure that is filed with the State Board of Elections. How is this program administered?
Answer: The purpose of the disclosure of campaign contributions is to promote public confidence in government and is similar to a long-standing reporting requirement with the State Board of Elections for persons doing $100,000 or more of business with the State or a local government of the State. Section 15-715 of the Public Ethics Law describes the program and gives the State Board of Elections the authority to prescribe the forms for the disclosure statement and the responsibility to report violations to the Ethics Commission. You should contact the Board of Elections for details of this program (410) 269-2840 or (800) 222-VOTE ext.4, or view their web site: www.elections.state.md.us/.
2. What
are the reporting periods for the lobbyist’s employer’s disclosure program, and
are the reporting periods different from the lobbyist’s reporting periods?
Answer: The lobbyist reporting period are November 1 through the following April 30, and May 1 through the following October 31. The lobbyists’ reports are due to the State Ethics Commission 30 days after the April 30th and October 31st dates.
The Employer’s Contribution Disclosure Form reporting periods are August 1 through January 31 and February 1 through July 31. The reports are due to the Board of Elections five days after the end of the reporting period.
F. LOBBYISTS SERVING ON STATE BOARDS AND COMMISSIONS
1. May
lobbyists serve on boards and commissions?
Answer: Yes, with the following caveats:
Subtitles 5 and 7 of the State Ethics Law (Md. Code Ann.,
State Gov’t, Title 15 (Supp. 2002)) address the ability of individual regulated
lobbyists to serve on State boards and commissions. Subtitle 5 looks at the conflict of interest issues, and subtitle
7 focuses on the lobbying law.
HB 1076, enacted on May 6, 2002, directed the Commission to promulgate
regulations applicable to regulated lobbyists serving on boards and commissions. The
regulations have been approved in emergency status and have also been submitted for approval in the
normal course. Presently they are
published in the Maryland Register and may be found in 29:20 Md. R.
1605--1611 (October 4, 2002) and the Emergency
notice will be at 29:20 Md. R. 1584 (October 4, 2002). When approved, they will be included in
COMAR at 19A.07.01.05 and .06.
Title
7 (Lobbying)
Generally, boards and commissions are subject to the Ethics Law if they are created by statutory authority, pursuant to an Executive Order having the force of Law, or by regulation. The State Ethics Commission maintains a comprehensive list of boards and commissions governed by the Ethics Law. The Ethics Law does not govern boards or commissions created by Executive Orders not having the force of law, by legislative resolution, or by executive letter. Questions regarding whether a specific board is subject to the jurisdiction of the Ethics Commission should be referred to the Commission.
Subtitle 5
(Conflict of Interest)
Subtitle 5 applies to all members of boards and commissions subject to State Ethics Commission authority and governs all conflict issues whether or not the board or commission member is a regulated lobbyist.
If the Ethics Commissions concludes that a board or commission is within its jurisdiction, the conflict of interest provisions in Subtitle 5 will determine to what extent a lobbyist may serve on the board or commission.
All members of State boards, commissions and similar entities that are created by statute, executive order, or regulation having the force of law are “public officials” of the State and are subject to the State Ethics Law. As public officials, these individuals in their board capacities, are subject to ethical standards of conduct covering recusal, prohibited employment, prohibited interests, gift restrictions, abuse of position, misuse of confidential information, post service limits, procurement specifications, assistance limitation and other requirements. Members of boards are also required to file limited public financial disclosure statements unless the Commission determines that the board member is exempt from this requirement. All Board and Commission members are required to complete a Time-of-Appointment conflicts disclosure form that provides the appointing authority with information regarding the nature and extent of any conflicts that the appointee may have as a result of the appointment to the board or commission. The specific conflicts exemption resulting from this disclosure attaches to the appointee throughout his or her tenure on the board or commission.
A lobbyist faces special issues if the lobbyist’s private affiliation or work relates to the subject matter or specific activities of the board or commission, particularly if compensated by an employer (or client) to influence the board.
If a regulated lobbyist is appointed to a board or commission under the jurisdiction of the Commission, or if a board or commission member becomes a regulated lobbyist, he or she:
· must
file a disclosure report with the Commission within 5 days of the dual status
reporting any:
Ø
current representation of a person for compensation before a
State governmental unit, except in a judicial or quasi-judicial
proceeding; any current representation of a State agency for compensation;
Ø
current contractual relationship with State government;
Ø
transaction with State government for monetary consideration;
Ø
current interest held by the regulated lobbyist, the regulated
lobbyist’s spouse or dependent children, together or separately, having either
10 percent or more of the capital stock, or stock worth $25,000 or more, in a
corporation subject to regulation by or doing business with the board or commission; and
Ø
interest in a partnership, limited liability partnership, or
limited liability company subject to regulation by or doing business with the
board or commission.
· shall update
the information required to reflect the lobbyist’s current
registrations throughout each reporting period; and
· whenever
an
issue arises within the board or commission related to the disclosed
information, shall submit a statement on the record of the board or commission
of recusal from discussion of, voting on, or any other action required by the
circumstances concerning the issue.
In some instances, a lobbyist may serve on a State board unrelated to his or her lobbying activity, but after the board has completed its work or after the lobbyist leaves the board, the lobbyist may wish to lobby the board, or perhaps lobby on the legislative recommendations the board or commission developed while the lobbyist was a member. This activity is impacted by §15-504(d), a provision that former officials, including members of State boards and commissions, may not assist or represent anyone for compensation in any specific matter where they significantly participated in the matter as officials or employees. Therefore, in some instances, subsequent activity by a lobbyist related to the work of the former member’s board is barred by the Public Ethics Law.
G. GENERAL PROHIBITED PRACTICES
1. What are the prohibitions on lobbyists’ practices?
Answer: The following activities are prohibited:
· Initiating or encouraging the introduction of legislation for the purpose of opposing it;
· Knowingly counseling any person to violate any provision of the Public Ethics Law or any other State or federal law;
· Engaging in or counseling any person to engage in fraudulent conduct;
· Knowingly making to an official or employee a statement of material fact relating to lobbying activity that the lobbyist knows to be false;
· Engaging in lobbying without being properly registered as a lobbyist;
· Requesting an official or employee to recommend to a potential client the lobbying services of a lobbyist;
· Making a gift to an official or employee that the official or employee is not permitted to receive;
· Making a gift that has been solicited in violation of the Law;
· Engaging in any charitable fund-raising activity at the request of an official or employee, including soliciting or transmitting a charitable contribution;
· Making or facilitating the making of any loan of money, goods, or services to an official or employee, except in the ordinary course of business;
· Knowingly concealing the identity of a lobbying client from an official or employee;
· Committing a criminal offense arising from lobbying activity;
· Serving as an officer or participating in fund-raising or in actions relating to filling a vacancy in a public office while serving on a State or local central committee;
· Forwarding fund-raiser tickets or other fund-raising solicitations to benefit a member of the General Assembly, the incumbent in one of the four statewide offices, or candidates for any of those positions. Also prohibited are soliciting or transmitting a contribution from any person or a political committee to these persons, serving on fundraising committees or political committees for these persons, or acting as a treasurer or chairman for such committees; and
· Organizing or establishing a political committee for the purpose of soliciting or transmitting contributions to benefit a member of the General Assembly, the incumbent in one of the four statewide offices, or a candidate for any of those positions.
H.
GENERAL QUESTIONS
1. How
may a lobbyist obtain advice from the Ethics Commission?
Answer: A lobbyist may call the Commission’s Executive Director or General Counsel. If it is possible for them to answer the lobbyist’s question based on prior Commission advice, they will do so. If the inquiry is a matter that will require some analysis and research, they will ask the lobbyist to submit the question, and any view he or she may have on the issue, to them in writing. If, as a result of analysis and research, they can respond to the inquiry, they will do so in writing. If they deem that the Commission must review the inquiry, the question will be presented for an informal opinion at a regularly scheduled Commission meeting. They will then provide the Commission’s response to the lobbyist. If the lobbyist disagrees with the informal opinion, he or she may request a formal opinion from the Commission, a process that may involve the lobbyist’s appearance before the commission. The formal advisory opinion will then appear in the Maryland Register.
2. How
does the Commission provide new lobbyists with training and specific
information about the Ethics Law?
Answer: Effective November 1, 2001, the Law required an individual regulated lobbyist to attend training at least once during any two-year period during which the lobbyist has been registered. For example, if, during the lobbying years of November 1, 2004 to October 31, 2005, and November 1, 2005 to October 31, 2006, the lobbyist has been registered for the requisite period of time during both lobbying years, they must receive training before the end of the two-year period. Subsequently, if the lobbyist continues to meet the requirements, training is required once during each subsequent two-year period.
The Commission provides training programs for lobbyists at least twice each year including once in January. The training courses are approximately two-hours long, and as time progresses, the Commission will offer a variety of courses directed at different subject matter areas. The Commission’s web site, http://ethics.gov.state.md.us has the dates, times and places for scheduled training, and registration forms may be downloaded for your convenience.
3. What
are the Commission’s procedures for levying fines, taking suspension or
revocation action, or reinstating lobbyists who have been revoked or suspended?