An advisory opinion has been requested as to whether an invitation and event is covered by the special reporting provisions of §15-704(e) of the Public Ethics Law (State Government Article, Title 15, Annotated Code of Maryland, the Ethics Law) and the reporting exception under §§15-704(e)(2) and 15-704(b)(2)(vi) of the Law. We advise that where there are invitations to all members to the types of activities set forth in the Law, these are to be considered as qualifying events, unless the facts of particular situations are inconsistent with this statutory approach, as is the situation in this request.
This request arose as a result of information provided to the Commission regarding an invitation extended to members of the General Assembly by a lobbyist (the Lobbyist) to attend a reception being sponsored by a lobbying employer (the Employer) of the Lobbyist's firm. On July 22, 1996 invitations were issued on behalf of the Employer to members of the Legislature to attend a reception sponsored by the company at the annual conference of the National Conference of State Legislatures. The conference was held in St. Louis, Missouri from July 25-30, 1996. The invitation, issued only a few days before the start of a conference which required registration fees, hotel accommodations, and transportation plans, stated that "This invitation is extended to all members of the General Assembly."
The nature of this invitation is important because of amendments to the lobbyist reporting requirements added to the Ethics Law in 1995. The Law as a general matter requires lobbyists to report all expenditures in connection with lobbying activities, including all meals and beverages, all compensation, and all expenditures for "special events." Section 15-704(b)(2)(vi) deals with special events, defining them to include "parties, meals, athletic events, entertainment, or other functions to which were invited all members of the General Assembly, either house of the General Assembly, or a standing committee of the General Assembly." Prior to 1995 the Law provided for a special report identifying recipients of gifts from lobbyists under certain quite limited circumstances. The 1995 legislation amended the reporting requirements to substantially expand the "special reporting" requirements where legislator recipients would need to be identified. Particularly, the Law now requires (at §15-704(e)) the identification of State officials of the legislative branch who receive meals and beverages valued at $15 or more. This provision, however, waives the special disclosure requirement if the meals or beverages are in connection with a special event as defined in §15-704(b)(2)(vi). As a result of the expanded identification requirement, there has been a very substantial increase in the incidence of special event activities over individual and targeted entertainment. Specifically, special event entertainment increased from $415,549 in the year ending October 31, 1995 to $569,371 in the lobbying year ending October 31, 1996.
The Commission has reviewed a variety of issues regarding the amended reporting requirements, and a general information memo on the provisions has been issued, along with several special report forms and instructions. There have been some informal inquiries regarding invitations extended to all members, including a situation where a lobbyist who previously held 6 regional receptions has now characterized all 6 as special events by changing his invitation so that all members are invited to all 6 receptions (despite the fact that the receptions continue to be held in 6 widely separated geographical locations within the State). Questions have also been raised about "all members" invitations to events that are ancillary to other activities that are totally independent of the legislature, such as a lobbyist reception for all members at an annual event of another large lobbying organization in Ocean City where all members were also invited by that entity. We have not taken exception to these approaches where the invitation process and other facts are appropriate, despite our concerns that in some situations they reflect an approach to circumvent the 1995 legislation expanding reporting and identification of gift recipients. There have, however, been some questions informally raised in the past regarding lobbyist entertainment of legislators at regional out-of-State conferences and these have not been considered to be "all member" events.
As to this particular situation, moreover, we are aware of the general practice and past involvement by the General Assembly in national or regional meetings. We are also aware that lobbyists attend these meetings and use them apparently to lobby those legislative leaders that attend. Generally, only a few members are designated for official attendance by the presiding officers, though other legislators may attend. The individuals identified by the Presiding officers would often attend at State expense, and attendance by others tends to be limited due to cost and other factors. Given these facts as to the Lobbyist's event, the timing of the invitation very close to the event when the general outline of those attending (or not) would be known, and the fact that the conference was hundreds of miles away in St. Louis (requiring substantial travel commitments), our informal view of this situation was that it could not be viewed as an all members event and that expenditures should be reported on a non-special event basis.
The Lobbyist has subsequently filed an activity report for this client disclosing costs of the activity as meals and beverages expenditures, and indicating that 17 of the 188 members of the General Assembly attended the reception and that the cost per person did not exceed $15, thus obviating the need for a special meals and beverages report even if not considered to be a qualifying event. Nevertheless, he has expressed the view that his invitation was appropriately characterized as an all members invitation within the strict language of §15-704(b)(2)(vi). The Lobbyist maintains that if an event is a party or otherwise included in the list of gatherings in §15-704(b)(2)(vi), and the invitation on its face says it is to all members, then it meets the statutory criteria and is a special event for reporting purposes under the Law. He states that a geographical or other standard should not be applied and indicates that his invitation was genuinely extended to any member who wanted to attend, and not targeted at any particular member. It should be noted, however, that the Lobbyist indicated in his discussion that he was aware of the list that was kept of the persons anticipated to be attending and apparently had a fairly complete understanding at the time the invitations were sent of who would be in St. Louis to attend the conference.
It is our view that a bona fide invitation to all members of the General Assembly or other qualifying groups to an event of the type described in §15-704(b)(2)(vi) would be a special event reportable as such on a lobbying activity report, without special reporting identifying recipients, and that a strictly geographical standard need not be read into the special event provisions of the Law. We believe, however, that the approach suggested by the Lobbyist is of such a literal construction that it places form over substance and allows inclusion of the magic words that "this is an all members invitation" to make an event into an all members special event even where reason or actual knowledge suggests it could not possibly be so.
We believe our advisory obligations under the Law require us to consider the language of the Law in the context of particular factual circumstances, and provide advice regarding application of the Law in specific situations. In our view given the timing and the historical and specifically known attendance practice regarding these events, as well as its location hundreds of miles away from Maryland, this invitation cannot be viewed as an invitation to all members that would qualify it for special event treatment and reduced disclosure. We therefore affirm our previous informal advice and advise the Lobbyist that his disclosure of the expenditures related to the activity as meals and beverages, and not a special event, was correct. This approach ensures the correct application of the disclosure requirements both as to lobbyists and officials who receive such benefits, and avoids creation by statutory interpretation of a loophole that would raise real questions as to whether the intention of the legislatively amended more detailed reporting requirements is being met.1
Mark C. Medairy, Jr.,
Charles O. Monk, II,
Robert J. Romadka,
April E. Sepulveda
Date: July 15, 1997
1 In view of the fact that we have concluded this was not a qualifying event under §15-704(b)(2)(vi), there is no need under the facts presented to address whether in view of the circumstances additional disclosure should be required under §15-704(f).