Q. I am a registered lobbyist, and based on my time, compensation, and expenses, I have crossed the threshold prescribed by state law requiring registration. My company has employees whose contact with state legislators, executive officials, and employees meets the definition of lobbying, but they do not exceed the threshold requiring registration. Am I under any obligation to disclose their lobbying activities even though they are not registered? Is my employer?

A. This is a good example of something we advise our clients all the time: know your state! Here are examples of jurisdictions where you need to know the nuances of non-lobbyist reporting requirements.

CALIFORNIA: You are only required to register as a lobbyist if you spend at least one-third of your time lobbying in a calendar month. However, other employees at your company might need to report their pro-rata share of compensation if they spend 10 percent or more of their time lobbying in any one calendar month.

This includes time spent involved in grassroots activity, providing research services, and preparing materials to be used for lobbying. This information is disclosed on the lobbyist employer report Form 635 as “Other Payments to Influence Legislative or Administrative Action,” Part III, Section D. Luckily, clerical staff are never considered non-lobbyist employees.

NEW JERSEY: If you are a lobbyist, you must register if you spend more than 20 hours in a calendar year attempting to influence legislation, regulations, or governmental processes by communicating with a state official. Registered governmental affairs agents must disclose their operational costs, including compensation paid to support personnel, including legal, technical, and clerical staff. Now for the big exception. The compensation of an employee working less than 450 hours per calendar year in support of a governmental affairs agent is not reportable. (TIP: We advise you have support personnel track their time to ensure they do not exceed the 450-hour threshold.)

TEXAS: In this state, you are either a lobbyist or not – there is no in-between. In addition, individuals registered in Texas only report their own expenditures. Compensation is not reportable. Ever.

We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need. Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

NEW YORK: A recent examination by New York City’s Campaign Finance Board shows that changes enacted before the 2009 mayoral election encouraged 34,000 New Yorkers to make campaign donations for the first time; drastically curtailed the role of businesses, political committees and lobbyists in campaigns; and caused a major drop in donations from those doing business with the city.

The Campaign Finance Board report found that New York City’s newly promulgated rules diminished the role of businesses, political committees and unions in campaign fund-raising. They now account for 7.2 percent of all funds available to candidates. In the last election for State Assembly and Senate candidates, such contributions accounted for 66.6 percent of all the money raised. New York City’s system has become a model for campaign finance reform based upon these results.

Photo of the New York City Hall by Momos on Wikipedia.

The Nevada Legislative Ethics Commission has announced it will increase lobbyist registration fees for 2011. The fee has been set at $300 for paid lobbyists, triple the current amount. The fee for unpaid lobbyists will remain at $20.

According to the Lobbyist Registration Overview:

“The penalty for failure to file any monthly expenditure report(s) or to file late is $10 per day until the report(s) is submitted.”

If you have any questions, the Registration Office contact is (775) 684-6800.

Here is the overview from the Nevada Legislative Web site.

Photo by Ryan Jerz in Wikipedia.

The proposed Cuyahoga County ethics code is the product of a review conducted by a working group of volunteers who reviewed the ethics practices of 13 similar counties. The proposed code includes provisions for lobbyist registration and reporting, campaign finance disclosure, and “pay-to-play” provisions for public contracts.

The code calls for a new five person entity called the Cuyahoga County Ethics Board which will oversee ethics education and enforcement as well as a County Ethics Officer who would be empowered to render advisory opinions, process and initiate ethics complaints, and conduct investigations.

Finally, the new code provides for whistleblower protection for county employees who report suspected illegal or unethical conduct.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

Here is a question we have been asked many, many times by clients over the years.

Q. How do I most accurately calculate my pro-rata share of compensation when I am registered as a lobbyist in five different states? Do I take my gross annual salary and divide it by five?

A. If you take your gross annual salary and divide it by five, you will undoubtedly over-report your compensation. Although you can never go wrong over-reporting, you should also strive for accurate reporting, especially in this instance.

Think of your lobbying in terms of hours. Review your calendar a month, or even a week, at a time to determine the number of hours you lobbied in a particular state. Now, assign a dollar value to those hours, and the result is accurate reporting.

To do this, follow this formula:

1.    Take your gross annual salary and divide it by 2,080 (52 weeks in a calendar year multiplied by 40 hours per week). This is your hourly rate.

2.    Multiply the number of hours you lobbied by your hourly rate. This amount is the reportable pro-rata share of your compensation for lobbying in that state.

Here’s an example:

1.     Gross annual salary is $120,000.

2.     $120,000 divided by 2,080, is an hourly rate of $57.69.

3.    Fifteen hours lobbied in a particular state during a reporting period, multiplied by the hourly rate of $57.69, is $865.35. In this example, this is your reportable pro-rata share of your compensation for lobbying.

Of course, you have work weeks that exceed 40 hours. And you also go on vacation. Using 2,080 as the number of work hours in a calendar year is a generally accepted accounting principle that will sustain scrutiny of even the most stringent of state auditors.

We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need. Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

The National Park Service’s National Register of Historic Places (NRHP) is a great place to find out more about the history of Washington D.C. One of its fascinating offerings is the Willard Hotel.

Since 1847, the Willard Hotel has been an important political hub and has hosted most of the U.S. Presidents since Zachary Taylor. Starting out as a row of small homes, the beautiful Beaux-Arts hotel you see today was built in 1904.

According to the NRHP site, the hotel has had quite a guest list:

“Presidents Taylor, Fillmore, Pierce, Buchanan, Lincoln, Grant, Taft, Wilson, Coolidge and Harding stayed at the Willard. Other notable guests have included Charles Dickens, Buffalo Bill, David Lloyd George, P.T. Barnum, Lord and Lady Napper, and countless others. Walt Whitman included the Willard in his verses and Mark Twain wrote two books there in the early 1900s.”

Part of the legend of the Willard Hotel is that it is the place where the term “lobbyist” became associated with people who try to influence government. According to the legend, people seeking to gain favor from President Ulysses S. Grant would find him smoking cigars and drinking brandy in the lobby of the Willard Hotel.

Here is a 2006 NPR recording of Liane Hansen on “Weekend Edition Sunday” talking to Barbara Bahny about the hotel’s reopening and its history of lobbying.

Apparently many people called NPR to point out that the term “lobbying” had existed long before the Willard Hotel, so Hansen did a follow-up piece called “A Lobbyist by Any Other Name?” on the history of the term.

In case you would like to visit, here is the Web site for the Willard InterContinental Hotel today. I wonder if they still allow cigar smoking in the lobby?

On that note, I’ll end with this quote from the NRHP Web site:

“It was Vice President Thomas R. Marshall, irritated at the Willard’s high prices, who there coined the phrase ‘What this country needs is a good 5-cent cigar.’”

The photo at the top is by AgnosticPreachersKid on Wikipedia.

North Carolina, which has a notoriously strict gift ban, permits lobbyists to provide meals and beverages at events held in conjunction with legislative conferences, provided certain conditions are met. In order for the gift exception to apply, either all members of the senate, house, recognized legislative caucus, or the entire general assembly must be invited, and at least 10 individuals associated with the lobbyist or the lobbyist’s organization must attend.

Kentucky does not have a strict ban against lobbyists providing meals to legislators, but there is a $100 annual limit. However, if there is an event where all members of the house or senate, or approved caucus are invited, the amount spent on food and beverages is not counted against the $100 limit.

Not only do many states have exceptions to their gift laws in relative to national legislative conferences, but some also have different reporting requirements. States like Missouri and Georgia allow for group reporting, rather than naming each legislator that attended. In South Dakota, lobbyists are not required to report their expenditures at national conferences at all, provided that the legislature is not in session at the time.

Ballot Measure 1 was touted as a way to increase transparency in lobbying and end “pay to play” politics. The measure was strongly and publicly opposed by unions, local governments, and business groups who were concerned the measure would have quieted the voice of many Alaskans in the political arena.

For further reading:

“Ballot Measure 1 soundly rejected,” by Lisa Demer in the Anchorage Daily News.

“Ballot Measure 1 rejected by wide margin,” by Ted Land on KTUU.com.

State officials must report tangible gifts of more than $250 per year from any source and transportation, lodging, and hospitality worth more than $650. Lobbyists were the most generous with legislators who have power to direct and control funding. For instance, Senate Appropriations Committee Chair Jake Corman received a $4,000 Super Bowl trip from a Pittsburgh law firm whose lobbyists represent a variety of clients, including utility companies, hospitals, wine and beer distributors, and banks.

Those who provide the gifts and travel are not necessarily trying to buy support for particular legislation, but they are buying lawmakers’ time according to one Harrisburg lobbyist, who asked not to be named. He said he frequently takes lawmakers to dinner but does not give tangible gifts. He said most often, gifts come from lobbyists whose interests already are in sync with the lawmaker’s policy positions.

The New York Commission on Public Integrity has published Notices of Proposed Rulemaking in the New York State Register to add Title 19 NYCRR Parts 933 and 934. Part 933 governs gift restrictions for state officers and employees, while part 934 governs lobbyists and their clients.

A period for comment is available until September 25, 2010. Those wishing to submit comments may e-mail them to kburgess@nyintegrity.org. Further, those wishing to view the proposed rules can find them at www.nyintegrity.org/law/regulations.html.

According to public filings, more than 130 registered lobbyists gave contributions toward 2010 campaigns. Republicans, who control the House and Senate, received about $190,000, while Democrats got almost $155,000. Another $13,000 went to nonpartisan judicial candidates.

Five statewide candidates each have received more than $20,000 in contributions from registered lobbyists, with Lt. Gov. Jari Askins leading the way at more than $36,000. Askins won a narrow victory over Attorney General Drew Edmonds in the Democratic primary for governor. Edmondson received more than $28,000 from registered lobbyists. The contributions from lobbyists, however, are a small share of overall fundraising for those candidates; the Askins and Edmondson campaigns have each raised more than $2 million.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

Q. I attended the annual meeting of the National Conference of State Legislatures. While there, I took a group of legislators from various states to dinner and picked up the tab. Most of the legislators were accompanied by spouses. In those jurisdictions requiring disclosure of this dinner expenditure, must I also disclose the amount spent on the spouse?

A. Almost all states requiring disclosure of food and beverage expenditures incurred on behalf of reportable officials also require disclosure of the amount spent on the official’s spouse or immediate family member. However, there are exceptions.

• In Idaho, the lobbying law does not require disclosure of expenditures for spouses and family members of legislators. However, it is common practice for lobbyists to report such expenditures anyway.

• In Michigan, food and beverage expenditures on behalf of spouses or family members are not reportable. However, travel expenditures greater than $725 on behalf of spouses or family members are reportable.

• In Montana, a principal is not required to report expenditures made on behalf of a spouse or immediate family member of a legislator, public officer, or employee.

• In Rhode Island, expenditures made on behalf of family members are not reportable as lobbyist expenditures, but are reported by elected officials.

• In Vermont, expenditures on behalf of a spouse or immediate family member are not reportable.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

The Illinois Secretary of State has mailed invoices for the revised lobbyist registration fee.

According to the Index Department, the invoices were sent on August 10, 2010 and the $300 fee is due on September 9, 2010. This invoice must accompany the payment.

The Council of Engineering and Scientific Society Executives [CESSE] held its annual meeting in Pittsburgh from July 13 to July 16, 2010. CESSE is a professional society comprised of over 1,200 executives from 165 science and engineering societies, whose combined memberships total approximately four million.  Some of CESSE’s members include the American Association of Artificial Intelligence, the America Association of Pharmaceutical Scientists, and the Society of Critical Care Medicine.

The objective of CESSE is to advance, in the public interest, the arts and sciences of the management of engineering and scientific societies.  Essentially, CESSE is an “association of associations”….and therein lie the unique compliance challenges when it comes to government relations and grassroots activity.

I was invited to speak to those members attending the conference’s general management and public affairs program tracks.  Not only did this include those individuals working in the company’s public affairs department, but also its senior executives.

At the federal level, the biggest concern for the group was compliance with the Lobbying Disclosure Act of 1995 [LDA], as amended by the Honest Leadership and Open Government Act of 2007 [HLOGA], along with federal lobbying restrictions by nonprofit organizations.  In particular, I addressed the permissible monetary thresholds for lobbying expenditures by a 501(c)(3) nonprofit organization when making an election under Internal Revenue Code Section 501(h).  Group discussion included questions regarding the difference between direct and grassroots communication, both at the state and federal level.  Finally, no discussion about compliance would be complete without addressing the ethical disclosure obligations that accompany the vast array of state and federal gift laws.

Although no ninety minute presentation could ever include an in-depth, detailed discussion of state and federal lobbying regulations, the CESSE group walked away with a very comprehensive and practical overview.  I’d like to take this opportunity to wish CESSE all the best for its 2011 annual meeting in Vancouver!

Photo of Nola Werren and Brad Smith of the American Chemical Society.