The West Virginia Ethics Commission has concluded it cannot prevent an employee of the Legislature from avoiding the state’s newly passed “revolving door” ban if he changes his status from an employee to an independent contractor before the law takes effect on July 1, 2011.

Under the pending law, elected officials and certain high-ranking unelected employees will be forbidden from acting as lobbyists for one year after leaving public employment. The commission decided this law does not include independent contractors.

This decision comes after a request for an opinion by legislative counsel Donnie Adkins. The commission said it “is troubled” by the proposed maneuver but would be unable to bring him within the revolving door ban as an independent contractor.

The West Virginia Ethics Commission offers the opinion on their website.

Here is the Charleston Gazette’s coverage in the story, “Ethics loophole a cause of concern” by Phil Kabler.

The office of the Secretary of State has released an amended version of the Rules Concerning Lobbyist Regulation, 8 CCR 1505-8. The newly amended rules now include an expanded definition of the term “bona fide personal emergency” to be used in conjunction with determining whether a professional lobbyist or lobbyist firm will be granted a waiver or reduction of an imposed fine, as well as provisions for the suspension, revocation, or other action concerning a lobbyist’s certificate of registration.

The amended rules also include additional guidance to be used by a professional lobbyist for a not-for-profit organization seeking a waiver of the filing fee for the professional lobbyist registration statement.

Finally, amendments were made concerning electronic filing of registration and disclosure statements, noting any statement presented for manual filing with the Secretary of State will not be accepted, but a computer terminal will now be made available in the main office to allow lobbyists to electronically file.

A report released by the Government Accountability Office reveals disclosure reporting terminology and reporting requirements are a challenge for some lobbyists. The 2010 Lobbying Disclosure Observations on Lobbyists’ Compliance with Disclosure Requirements also found some lobbyists lacked clarity in determining what constitutes a lobbying activity versus a non-lobbying activity. Generally, however, the findings in the report, which were substantially the same as prior reports, show lobbyists as a whole complying with disclosure and reporting requirements.

The GAO is required by law to prepare reports determining the efficacy of lobbying compliance and reporting, and identify any challenges to compliance. This is their fourth report.

Q: I am a registered lobbyist.  Can a company executive and/or expert accompany me to meetings with public officials without needing to register?

A:  In most instances, individuals are not “insulated” from registration by engaging in lobbying activities in the presence of a registered lobbyist.  California is an example of an exception to this rule.  In California, an individual does not engage in direct communication when he meets or speaks with a qualifying official in the company of a registered lobbyist retained by the individual’s employer, or by a bona fide trade association or membership organization of which the individual’s employer is a member.

The answer will to depend on the jurisdiction’s registration thresholds. Often times, executives and experts will not have to register because their involvement will not meet the compensation, time, or expenditure threshold in the given jurisdiction.  For example, in Connecticut, the expert would have to receive $2,000 in compensation in a calendar year before having to register.  A one-time meeting with public officials would probably not exceed this threshold.  Likewise, in Massachusetts, there is a statutory presumption that an individual is not a lobbyist if he spends 25 hours or less and receives less than $2,500 for lobbying efforts during any semi-annual reporting period.

The context and content of the conversation are also important in determining whether registration is required.  If the executive and/or expert are merely providing testimony at a public hearing, most often this will not be considered lobbying and he will not be required to register.  In some cases, as in Arizona, there are exceptions for individuals providing technical information to public officials.

It is always important to remember the “title” of the person is not relevant in determining whether he or she needs to register as a lobbyist in any given jurisdiction.

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.

(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.

This law, taking effect on July 1, 2011, requires lobbyist registration and reporting only with the legislative branch.

Lobbyists will indicate on this registration whether they will also engage in lobbying executive officials.

Employer reports will still be due each July 31^st.

Photo of Governor Branstad courtesy of the official website for the Office of the Governor.

House File 126 has passed both houses of the Iowa Legislature and now awaits approval from Governor Terry Branstad.

This bill would change the state’s law to require lobbyists to register and report with the legislative branch only; currently there is separate registration and reporting for the legislative and executive branches.

Lobbyists would indicate on the registrations whether they will lobby executive officials in addition to lawmakers. Lobbyists would have a combined annual report due each July 31st and registration would open in December for the following calendar year.

Tennessee Governor Bill Haslam has signed into law Senate Bill 1227, which revises the filing dates for lobbyist employer disclosure reports.

The bill requires that employer disclosure reports be filed within 45 days of June 30 and December 31.

The new law takes effect July 1, 2011, with the first employer disclosure report under the new law covering the time period from April 1, 2011 to December 31, 2011 having a filing deadline of February 14, 2012.

Photo of Governor Bill Haslam courtesy of the Tennessee Governor’s website.

This week our Highlighted Site of the Week is Women in Government Relations (WGR). The site was referred to me by Rebecca South, who is a Federal Compliance Associate at State and Federal Communications. Rebecca has been a member of Women in Government Relations  for seven years.

The group is doing amazing work that deserves attention. Spend some time on the their website and you’ll see how active they are. The group was founded in 1975 and boasts a membership of over 750 women and men from many places in the profession. According to the site, there are 65 U.S. Representatives and seven U.S. Senators who are WGR Emeritus members.

The organization’s goal: “WGR is committed to the advancement and empowerment of women at all career levels of government relations. By offering leadership opportunities, mentoring, partnerships, networking and educational programming, WGR cultivates our members’ personal and professional growth.”

Women in Government Relations offers programs and workshops, as well as a mentoring program and professional internships. They also have a WGR Toastmasters group where members are given the opportunity to improve their public speaking skills. Their website has a career center where job seekers can meet employers online.

The WGR calendar is full with their Signature Events like the Charity Golf Tournament, the Emeritus Member Tea, the Charity Scavenger Hunt (sending members all over Washington, D.C. looking for clues), the Spring Gala, and much more!

Another great resource for members is the WGR Task Forces and Working Groups: “In addition to annual events, WGR hosts regular briefings, roundtables, and panel discussions as well as brown bag luncheons with policymakers and other government affairs professionals.”

WGR’s website is rich with information, but if you want the latest news, I suggest connecting with them via social media. You can find their Facebook here and you can join their LinkedIn Group here.

House Bill 3653, a bill concerning lobbyist registration fees, was brought before the House Appropriations Committee on Monday, April 18, 2011, as the bill moves closer to a vote before the full House.

The bill would provide for lobbyist registration fees of up to $1,000; however, lobbyist registration fees of up to $200 would be assessed if the lobbyist is employed by a 501(c)(3) or 501(c)(4) organization.

If passed, the bill provides for an effective date of September 1, 2011.

Photo of the Texas State Capitol by LoneStarMike on Wikipedia.

The Georgia General Assembly adjourned late Thursday, April 14, 2011. Among the measures passed on the final legislative day was Senate Bill 160, requiring lobbyist reporting of expenditures made on behalf or for the benefit of a public employee for the purpose of influencing a public officer. The measure will now be sent to the desk of Governor Nathan Deal for his signature.

Senate Bill 160 was amended earlier in the week to close a loophole in state ethics law made public after Advisory Opinion 2011-03, released by the Georgia Government Transparency and Campaign Finance Commission, concluded state law did not require the reporting of such expenditures.

The final semi-monthly disclosure report for state level lobbyists will be due May 1, 2011. Further, the first monthly disclosure report for state level lobbyists will be due June 5, 2011.

Photo of the Georgia State Capitol dome by Connor.carey on Wikipedia.

This ethics bill, which takes effect on July 1, 2011, prohibits members of the state legislature, elected executive branch officials, agency heads, and certain other appointed officials from acting as lobbyists for one year after leaving office.

Additionally, this legislation will require a public official who files financial disclosure statements to reveal employment information and other “business interests” of his or her spouse.

The spousal disclosures are designed to shine light on additional conflicts of interest an official may have even without a personal stake in a matter.

Photo of the West Virginia State Capitol by Garkeith on Wikipedia.

The Georgia House of Representatives voted Tuesday to close a loophole in the state ethics law concerning expenditures made on behalf or for the benefit of public employees.

The House voted to amend Senate Bill 160 to add provisions requiring lobbyist reporting of expenditures made on behalf or for the benefit of a public employee for the purpose of influencing a public officer after Advisory Opinion 2011-03, released by the Georgia Government Transparency and Campaign Finance Commission, concluded state law did not require the reporting of such expenditures.

The bill must now return to the Senate for a vote on the House amendment.

Photo of the Georgia State Capitol dome by Connor.carey on Wikipedia.

Individuals and entities using the FEC’s FECFile software to file will have to update to the software’s latest version (7.0.1.0).

Reports using earlier versions will not be accepted.

Those using commercial software are advised to contact his or her vendor to ensure compliance with the latest electronic filing format.

Q. If I receive an invoice from my contract lobbyist for services rendered during one reporting period, but I do not make payment on the invoice until the next reporting period, how do I know when to accurately report the payment?

A. You need to determine whether your particular state uses the cash or accrual method of disclosure.

The cash method is based on when money is actually transacted; in other words, when funds in point of fact change hands from client to contract lobbyist.  In direct contrast to the cash method, the accrual method focuses on the obligation to pay as opposed to when funds actually change hands. Essentially, when you receive the invoice from your contract lobbyist, you are obligated to pay.

So which date do you use for reporting purposes?  Is it the date you actually mail the check to the contract lobbyist, or the date you receive the invoice?  These rarely, if ever, occur on the same date and therein lies the issue:  what happens when these dates fall in different reporting periods?

Some states, such as Tennessee and Texas, specifically provide by statute or rule the method of disclosure that should be followed.  When the law is silent, the most prudent thing to do is call the disclosure office for that particular jurisdiction and get an answer.  Be sure to take the name and title of the person you spoke with and keep it in your records.  You may often hear, “It doesn’t matter; report the expense however you choose.”  This sounds great, but in reality is very frustrating. Whichever method you choose, be consistent. If you decide upon the cash method, document that and use it for all future reports.

When it comes to your contract lobbyists, be sure they are using the disclosure method required by law. This can be important in an audit when the state looks to see if your report aligns with the contract lobbyist’s report.  If the method is optional, discuss with your contract lobbyist which method they intend to use and be consistent.

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.

(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.