96.09

OPINION NO. 96-09

Ethics Commission advice has been requested as to whether participation by an attorney lobbyist in the activities of a State task force on behalf of a client/employer constitutes lobbying for which registration and reporting is required. Based on the information provided regarding the specific activities of this individual, we advise that registration and reporting of compensation and expenditures related to these activities is required.

This request involves representation activities by a Baltimore attorney in connection with the work of the Task Force to Reform the State Personnel Management System (the Task Force). The Task Force, established by Executive Order in June, 1995, to conduct a comprehensive review of the State Personnel Management System, was charged to provide a preliminary report to the Governor by November 1, 1995, and a final report including findings and legislative recommendations by December 1, 1995. Its membership included 6 legislators (3 from each chamber), 5 cabinet secretaries, and 4 private sector representatives. There was one employee representative and 3 appointees representing employee union organizations. The Task Force met in 23 sessions and studied 15 basic human resource processes and structures. Subcommittees were established to provide a forum for detailed consideration.

There were three appointees on the Task Force representing employee organizations, two of which (AFSCME Council 92 and MCEA) are lobbyist employers. The Requestor is an attorney with a Baltimore law firm, where she indicates that her practice is as labor counsel, representing unions in collective bargaining issues and individual members in particular employee matters as retained by the union client. The Requestor indicates that she has been a registered lobbyist for another public employee organization (the Federation), though generally she does very little lobbying for this or other clients. Her lobbying work is by special agreement for lobbying work separate from her regular legal representation of her union clients. Given the many personnel and legal issues in the 1996 Session, the Requestor advises that she did more than usual this year. Her most recent registration was for the period ending on April 30, 1996, and she is therefore registered for the current period ending in October. Her activity report for the November-April reporting period discloses $2,480 in compensation, which she says reflects an hourly billing rate of $100 per hour, and no gifts or other expenditures.

The Requestor indicates, and her lobbying registration confirms, that she is registered directly for and compensated by the Federation and also speaks on behalf of another employee union (the Union) under this registration. The Executive Director of the Union (which has been one of the constituent members of the Federation) was appointed as the third employee organization member of the Task Force. Given its focus on the State personnel law, and that the Requestor is a lawyer active in personnel work, she was asked by the Union representative on the Task Force to participate with her on the Task Force. This support work was concurred in by the Federation, and the Requestor assisted the Executive Director in her Task Force service as part of her compensated work for the Federation. She indicates that she billed the Federation on an hourly basis at the same $100 rate as for her lobbying work during the Session.

According to the Requestor, she attended the Task Force meetings regularly, participating in about half of the weekly meetings. The Executive Director served as one of eight members of the subcommittee on grievances and terminations, and the Requestor says that she attended all of these meetings (about 6). She says that her role was to represent the employee side from a labor lawyer perspective. She says with the Executive Director generally was there and had the vote, and the Task Force rule that only the appointee could vote was strictly enforced for controversial matters. Each subcommittee produced written documents that were voted on by the subcommittee and distributed to the Full Task Force for consideration. The Requestor says that she worked closely with the Executive Director, reviewing materials with her and assisting in drafting language on certain issues being considered by the subcommittee. Legislation (apparently drafted in the Governor's Office and generally reflecting the Task Force recommendations) was subsequently introduced and enacted as the State Personnel Management System Reform Act of 1996 (Laws of 1996, Ch. 347). The Requestor indicates that she registered as a lobbyist for the Federation during the 1996 Session and that any activities in connection with this legislation and compensation therefor are reflected in the activity report for this registration.

During the time period of her Task Force work (the 1994-95 lobbying reporting year) the Requestor was registered for four employers, including the Federation. She filed activity reports for the May—October 1995 period showing no activity and no compensation. Thus, though the Requestor was registered for the Federation during the period of her Task Force work, she has not reported it or her compensation in connection with it. She indicates that she discussed this with others at the time and that the prevailing view was that they were engaged in discussion and debate as to personnel policy in the State, which was not reportable lobbying activity. Though we understand that the Requestor considered this matter and believed that her assistance to the Federation/Union in connection with its Task Force participation was not a lobbying activity, we conclude that under the circumstances as described here, her involvement did constitute lobbying for purposes of the Ethics Law and that her compensation and any related expenditures should be reported by her on an amended activity report for this period.

Section 15-102 of the Public Ethics Law (State Government Article, §15-102, Annotated Code of Maryland, the Ethics Law) defines legislative action very broadly to include official action or nonaction relating to a bill, resolution, amendment, nomination, appointment, report, or other matter within the jurisdiction of the General Assembly. Lobbying is defined to include the performance of any act that requires registration under §15-701 of the Law. This provision in turn requires registration by an entity/person who, for the purpose of influencing legislative action, communicates with an official of the Legislative or Executive Branch in the official's presence and who earns at least $500 in compensation or incurs expenses of at least $100 (exclusive of personal travel and subsistence).

We have in considering issues regarding the criteria for lobbying registration consistently viewed the very broad definition of legislative action as reflecting a legislative intention to include activities pertaining to any legislative matter, even if there is no specific bill or legislation pending. (See, for example, Opinions No. 88-13, No. 84-11, and No. 82-4.) Thus, even though there were no specific bills being considered by the Task Force, and the Task Force itself did not draft legislative language, we believe in the situation here that the activities of the Task Force constituted legislative action, given the direct focus of the Task Force on statutory provisions, and the clear ultimate intention that legislative proposals be generated to change the Maryland Personnel Management System. Since employees and officials of the Executive and Legislative Branches were present at the Task Force deliberations, the Requestor's involvement in our view constituted appearing in the presence of officials for the purpose of influencing legislative action. In particular, her description of her activities was to present the views of the employee perspective in controversial policy issues, presumably with the intent to influence official action to draft or enact legislation. Since she was compensated $100 per hour and likely invested more than 5 hours work in connection with the Task Force work, we believe that she also meets the compensation as well as the presence and purpose criteria.

We recognize that the Task Force was an official entity established to carry out a State purpose. Where individuals are actually appointed to serve on State boards or commissions, serving as volunteers in an official capacity, we are inclined to conclude that their service would not come within the lobbying provisions of the Law, even where legislation is anticipated, where the basis of the appointment is in a representative capacity as an employee of a private entity. This is the situation for example, with the appointees to the Task Force who were regular employees of the groups they represent.1 This, however, is not the case with the Requestor. As to her situation, she provided services in support of a Task Force member specifically for compensation, and thus could not appropriately be characterized as an individual carrying out a government function. In our view, her provision of compensated services directly on behalf of a lobbyist employer must be viewed as more like the kind of representational activities, aimed at influencing official actions, that are intended to be covered by the Law. We therefore advise the Requestor that these activities are covered by her existing registration for the Federation for this period and that her activity reports for this period should be amended to reflect her compensation and any related expenditures as required by §15-704 of the Law.

Michael L. May, Chairman,
   Mark C. Medairy, Jr.,
   Charles O. Monk, II,
   April E. Sepulveda

Date: September 17, 1996

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1 Less clear, however, is whether registration and reporting would be required where a fee lobbyist is appointed to a board or commission and the activity is charged to a particular client or clients. The propriety of this type of situation would also require specific review.