98.05

OPINION NO. 98-05

An advisory opinion has been requested as to whether the lobbying provisions of the Ethics Law apply to require registration and reporting by two law professors from a District of Columbia university, whose activities before the General Assembly are part of an academic program, and if so whether private college lobbying exemption language in the Law would apply to their activities. We advise that while as a general matter clearly and solely academic actions by students that are not compensated would not trigger the registration requirements of the Law, there is a point in this type of activity where personal appearances and policy influencing activities by compensated professors would bring the lobbying provisions of the Ethics Law into operation.

This request is presented by an institution of higher education in the District of Columbia (the University). The professors work at one of the University's post-graduate professional schools, which includes among its academic programs several public interest programs designed to reflect the school's mission of commitment to the local and national community. They are affiliated with a particular program (the Program) that defines its charter purpose as providing legal and policy services essential for political and economic democracy, and as integrating community service with clinical teaching. The Program's students (who must be second year students) register for the two-semester program, which carries 10 credit hours. The course includes a weekly 3-hour seminar/lecture and in the Fall semester entails work in development of a policy proposal. According to the program materials, the initial part of the course stresses policy design and drafting, while in the second semester students become more interactive with client organizations and other sometimes nationally focused entities. Recent projects have included work with the National Black Caucus of State Legislators on environmental justice issues and work in Maryland regarding pension fund investment, and the materials for the 1997-98 academic year indicate that clinic assignments would relate to community health, capital for community development, and democracy and trade.

The community health projects have been a subject matter area for the policy clinic programs for a few years. Projects began in 1994 relating to a Program Project on Sustainable Services, which is an effort to expand preventive health care through nonprofit, community-based service providers. More recently, during the 1996-97 year, students coordinated their efforts to develop policy options to encourage partnerships between community-based health care providers and managed care organizations. The program description for the 1997-98 academic year anticipated continuance of policy development and proposal preparation relating to the previous years' "sustainable services" programs. In particular, the priorities were to develop two new policy projects, one relating to health care conversions and the other working on issues to promote community health workers as an effective strategy for preventive care.

These projects were to relate to national networks of community health advocates and also seek out individual nonprofit clients committed to these issues. Apparently three students and two professors were a part of the community health team, which included focus on development of policy options designed to support community health workers. According to one of the professors involved, these efforts in the first semester resulted in a presentation to a Black Legislators conference in the late Fall, and apparently as a result of this presentation the professor was approached by a Maryland Delegate regarding assistance by the team in drafting and urging legislation regarding community health workers. The result was that one of the students drafted legislation, and he and the professor worked to recruit additional sponsors. The professor also had discussions with a Senator who is a former student, and who agreed to sponsor the bill in the Senate. The bill was introduced in both the Senate and the House of the Delegates and the professor indicates that in addition to recruiting additional sponsors, the student coordinated with Legislative Services bill drafting staff to make adjustments, and testified in support of the bill. The two also worked with a local grass roots group to engender support among community health worker constituents.

The professor also indicates that the course as a general matter includes an annual field trip to Annapolis, where students meet with the Governor as well as legislative leaders. He says that this year he mentioned the community health workers bill hoping the Governor would support it, and was referred to a legislative aide in the Governor's office. He coordinated with this individual and the Governor's office did in fact support the legislation. Also, he indicates that he and the student involved in this project followed up with House members when the bill stalled in the House, though little additional actions were necessary in the Senate. The bill passed the General Assembly, and apparently there has been some follow up with the DHMH regarding its implementation.1

According to the professor, this type of direct legislative interaction is not the usual situation in the course. More often, possible legislation is generated and legislators are invited to participate in seminars to evaluate it, but this is in a mock legislative type of situation, rather than an actual legislative forum. He says that the recent experience, however, is invaluable and a good learning experience for the quite practical functioning of the legislative process, and he would anticipate that similar opportunities in the future would be pursued. He indicates that the program does not view itself as acting on behalf of a private sector community, business or special interest, though he acknowledges that in fact the positions taken and the legislation urged does have practical substantive impact.

We are further advised that none of the students are in any way compensated for these activities, and that no meals, beverages or other gifts are provided to State employees or officials as part of this activity. Professors involved in the program are compensated by the University as faculty members, and this would as a practical matter include compensation for activities involving legislators that flow from their teaching activities. According to the professor, however, the University does not have a role in policy development and positions taken by students do not reflect a University viewpoint or interest. He thus suggests that faculty are paid by the University to teach but not to engage in communications to influence legislation. He also indicates, however, that all positions taken and documents and comments generated and presented by students in the program are reviewed and approved by faculty as part of the educational function of the programs. Moreover, it is apparent from information provided that there is some general University programmatic oversight, and that this type of lobbying activity is potentially subject to University oversight or control.

The question presented in this request is whether the compensated involvement by the Program faculty members constitutes activity that would be viewed as lobbying for purposes of the registration and reporting requirements of the Public Ethics Law (State Government Article, Title 15, Annotated Code of Maryland), and if so whether an exemption available to private and independent colleges in the State can be applied to excuse the application of the Law to them. Section 15-701(a) of the Ethics Law defines a person/entity as a regulated lobbyist under the Law if during a reporting period, and for the purpose of influencing legislative action, the person/entity communicates with an official in the presence of the official and earns (exclusive of personal travel and subsistence) at least $500 in compensation. It is clear in this situation that both the faculty and the students involved in the programs communicated in the presence of officials for the purpose of influencing legislative action. We also believe, as this activity was in connection with the official duties for the University for which the faculty personnel were compensated by the University, that they were compensated for this activity. The University official who requested the opinion indicated that it is likely the compensation would have been at least $500.

The Commission considered a question similar to this in its Opinion No. 81-12, which involved an individual who was employed by a business that was a member of a trade association. The individual communicated in the presence of officials for the purpose of influencing legislative action directly on behalf of the trade association. He was not compensated by the trade association, and maintained that his activities were personal and therefore also not compensated for by his regular employer. We advised that the individual was required to register, concluding that as his legislative activities involved lobbying efforts in areas closely and integrally related to his employer's interests, and directly on behalf of a trade association of which his employer was a member, the proper approach was to recognize that his legislative efforts were on behalf of his employer and part of the regular duties for which he was compensated by his employer. In subsequent informal advice an attorney in a Baltimore law firm was told that registration was required in connection with legislative activities on behalf of two clients where the attorney was being compensated by the firm to act on the clients' behalf as a firm accommodation to its clients.

While we believe that much of the noncompensated academic activities by the Program's students would be outside of the coverage of the Ethics Law, it is our view that the reasonable implication and application of these prior opinions and the language of the statute suggests that there is a point at which the compensated actions of the professors involved in this activity requires their registration and reporting under the lobbying provisions of the Law. Though the University itself may not have a direct, specific and practical interest in its faculty's ongoing actions in connection with this academic undertaking, we are aware that there are circumstances where the University might take a negative approach and object to its faculty taking particular positions in their role as University staff, even in this type of academic situation. Moreover, whatever its substantive commitment to the positions developed in these types of programs, the University through its compensation of its faculty is subsidizing efforts which have an actual and direct impact on legislative actions by the Maryland General Assembly, and its faculty need to function within the legal framework of that activity in the same way as they are required to comply with applicable rules when they work with students in other clinical settings.

The lobbying law functions primarily as a disclosure provision to enable legislators and the public to know when individuals are being compensated to appear before officials to influence legislative action. The purpose is to enable individuals, organizations and legislators to know who is pursuing legislation and what kinds of resources are being employed to advance legislative policy making that impacts on them and their interests. In our view when Program faculty members who are being compensated for their activities go beyond the academic activity of counseling and advising students or providing general information in response to inquiries and themselves appear before officials to testify, to recruit sponsors, to redraft pending legislation, or otherwise encourage or solicit support by legislators as to legislation, then they are engaging in the types of activities that the Law intends should be disclosed and about which others are entitled to know. When they undertake these types of activities, faculty members (but not the students) meet the statutory criteria of being in the presence of officials for the purpose of influencing legislative action, and they are being compensated for this activity. To look to the motivation, direct knowledge or involvement of the source of the compensation as a basis for determining application of the criteria would result in an impossible standard for coverage that would be inconsistent with the fundamental purpose of the Law, which is to identify individuals and entities that expend funds to influence legislation.

The Requestors suggest that since they are affiliated with an institution of higher education, their activities could be exempt from the registration and reporting requirements of the Law pursuant to §15-701(b)(2)(v), and, further, that not allowing this exemption for non-Maryland institutions would raise issues under the privileges and immunities clause of the U.S. Constitution. This provision in the lobbying subtitle of the Law creates an exemption from the lobbying requirements of the Law for actions of a faculty member of a nonprofit independent college or university in the State, under some circumstances. It applies by its terms to colleges and universities in the State, and the purpose language of this provision in its bill form (HB 761) specifically describes its intention as exempting persons in certain positions with "independent colleges and universities in the State."

This 1996 amendment to the Law appears to reflect a legislative view that private colleges and universities in Maryland receive substantial State funding and have a State role similar to the public institutions that have always been exempt from registration. This legislation was enacted by the Legislature and signed by the Governor based on constitutional review by the Office of the Attorney General. Under the circumstances, we believe ourselves bound as an executive agency to implement this provision of the Law in accordance with its plain terms. In our view the clear language of §15-701(b)(2)(v) allows certain lobbying exemptions for Maryland institutions, and, as noted above, the University is not a Maryland institution of higher education. We therefore advise that if the professors in the future engage in influencing activities that involve personal appearance before officials, and do this as part of their compensated duties for the University, they will meet the criteria of §15-701(a) of the Ethics Law and must register and report their activities as required by the Law.2

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

Date: August 4, 1998

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1 The other project followed a similar process though the activity was actually somewhat more limited as it involved a bill previously introduced at the time the students became involved. Since our concern here is to provide prospective advice based on generally described activities we do not address the other project in detail here. We believe that the circumstances of the community health worker legislation provide sufficient information to advise the University regarding application of the lobbying law to activities of its personnel.

2 We note, of course, that there are other exemptions that may apply in some situations, specifically in §15-701(b)(2)(i) and (ii), which allow for bill drafting activities, as well as appearances before the General Assembly or a committee at their request.