The Federal Election Commission has issued Advisory Opinion AO2010-30 Citizens United, allowing Citizens United to rent its email subscriber mailing list to federal candidates, political party committees, and political committees.

The commission concluded the rental is not a coordinated expenditure or a coordinated communication. Citizens United plans to rent its list at fair market prices using a commercial list brokerage firm.

The commission did not have enough votes to approve a response as to whether using the list to solicit contributions or invite recipients to a fundraiser violates the prohibition against corporate facilitation of contributions to candidates or political committees.

Q. If I provide a gift to a covered official exceeding the gift limit in that jurisdiction, can the covered official reimburse my employer for the difference?

A. This is a situation you never, ever want to be in, but sometimes it happens. Fortunately, most of the states allow for the covered official to reimburse the donor in order to rectify the situation.

One of the circumstances precluding reimbursement is when too much time has elapsed between providing the excessive gift and reimbursement by the official. If too much time has passed, the state considers the gift to have been “accepted” by the official, and reimbursement is not an option.

Also, even if the official reimburses the overage, sometimes the lobbyist, the official, or both must nonetheless report the total value of the gift. From a disclosure standpoint, this makes a precarious situation even more suspect.

Some examples of these rules include the following:

• In Connecticut, the gift limit is $10. The official may not partially reimburse a more expensive gift to bring the final cost to the lobbyist below $10, because the overall value of the item is still over $10 [Advisory Opinion 1997-15].

• In the state of Washington, an official’s name cannot be removed from a filed lobbying report, regardless of whether the official has fully reimbursed the lobbyist for the reported expenditure. In addition, an official cannot partially reimburse a lobbyist for an expense to bring the total cost below the $50 reporting threshold. Even if a partial reimbursement occurs, both the lobbyist and the official must report the full amount. The only way an expenditure exceeding the threshold does not have to be reported is if the official fully reimburses the lobbyist prior to the lobbyist filing the lobbying report disclosing the expenditure.

• In New York, public officials and employees may completely reimburse the donor of a gift if the reimbursement is not removed or remote in time in order to comply with the gift ban [Advisory Opinion No. 97-03]. If an item, entertainment, or other benefit is received and payment of its market value is made prior to or simultaneously with receipt, there is no gift [Advisory Opinion No. 97-03].

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.

State and Federal Communications, Inc. had a month-long gift wrapping fundraiser to benefit the United Way of Summit County.  Promoted as “giving YOU the gift of time” employees in the building brought their unwrapped gifts to be expertly wrapped and returned ready to be put under the tree.

Packages of all sizes and shapes came through the doors and the elves tackled each corner to impress.  Participants of the fundraiser made personal donations to the United Way.  All donations were matched by State and Federal Communications and were forwarded to United Way.

Happy Holidays.

The New York State Commission on Public Integrity has released an advisory opinion making it easier for state employees targeted by layoffs to gain new employment.  The commission announced that the 30-day recusal period set forth in Advisory Opinion No. 06-01 has been suspended as it applies to state officers or employees who have been targeted for layoffs or state employees who may opt for relocation or layoff because their position will be eliminated.

State employees who pursue potential post-government employment opportunities must still recuse themselves from any matters pertaining to that private entity for the duration that the employee remains employed by the state agency, if targeted for layoff.

Flag of New York image courtesy of Wikipedia.

The new ethics code is an extension of previous code which had been passed during the summer of 2010 to institute such a standard on the county commissioners. Following a training session scheduled for spring of 2011, all county employees who receive perishable gifts will be required to place them in an area where other employees and the public will be free to enjoy them, while non-perishable gifts will have to be turned over to the administration to be put to the public use.

Further, employees will not be permitted to accept personal gifts outside the office which could be perceived as being intended to influence their decisions as an employee of Broward County.

MAINE: The Maine Commission on Governmental Ethics and Election Practices will be closed December 23rd for a state government closure day. The Commission will also be closed the following day, December 24th, in observance of the Christmas holiday and on December 31st in observance of the New Year’s holiday.

WISCONSIN: The Government Accountability Board will be closed on December 24th, 2010 in observance of the Christmas holiday and on December 31st in observance of the New Year’s holiday.

A special legislative session has been announced for March 30, 2011 to redraw state and federal districts. The redistricting will include congressional, state education board, and judicial districts.

Significant district changes are anticipated due to overall population decline and shifts in population concentration as a result of Hurricane Katrina. The session has been called by legislators, not the governor, for the first time in state history.

Photo of Louisiana State Capitol building by Bluepoint951 on Wikipedia.

Paul M. Nick has been designated Interim Director of the Ohio Ethics Commission beginning January 1, 2011.

The Commission will meet on January 6, 2011 to formalize the appointment. Due to unforeseen circumstances, the Ohio Ethics Commission was unable to convene with a required quorum on December 20, 2011 to select an Interim Director. After consulting with the Commission Chair, Ben Rose, Executive Director David Freel designated Mr. Nick to succeed him in the interim. The Ohio Ethics Commission has begun a search for a permanent replacement for Director Freel who retires at the end of this year.

Paul Nick currently serves as the Ohio Ethics Commission’s Chief Investigative Attorney and has held the position since 2000. Mr. Nick joined the Commission in 1995 as Investigative Counsel. Prior to his experience with the Commission, Mr. Nick was an Assistant City Prosecutor with the City of Columbus.

You may read the Ohio Ethics Commission press release announcing Mr. Nick’s appointment here.

While not as strict as the bills originally proposed by the Governor, the newly passed rules represent a dramatic overhaul to Alabama ethics law. Under the new rules, PACs will be forbidden from making transfers of funds to other PACs with a few exceptions.

State lawmakers will be unable to hold a second public job, and one bill imposes a ban on “pass-through pork” whereby a legislator can appropriate funds to a specific agency or project without legislative approval. In the new year, lobbyists will be required to complete a training program, and the State Ethics Commission will have subpoena power.

Another bill signed by Governor Riley will forbid public employees from donating to political groups via payroll deduction. This law has been criticized as politically motivated by state Democrats.

A panel of the Administrative Conference of the United States has made a recommendation of ethics standards for government contractors and their employees. Under the proposed rules, a contractor would be prohibited from accepting gifts from anyone who is seeking an official action from the contract work or who has some interest substantially affected by the contract.

A contractor would also have to certify, prior to commencing work on any contract, no participating employee has a conflict. If conflicts do exist, the contractor would be required to request waivers for such conflicts, or disclose any conflicts and propose a mitigation plan.

The Conference is an independent agency of the federal government serving as an advisory organization.

Update: Kathy Kyle, Communications Director with the Administrative Conference of the United States, sent us a wonderful clarification, which we quote here:

The “recommendation” that you reference in your blog is an initial draft recommendation that was considered by the Committee at its most recent meeting, on December 3, 2010.  Over the course of the next several months, the Committee plans to hold one or more additional meetings wherein it will further discuss the issues related to the project and will revise the recommendation.  Once the Committee has produced its final recommendation, the recommendation will then be presented to the ACUS Council and then to the full Conference meeting in plenary session, set for a vote.  If approved, the final recommendation will then be published in the Federal Register.

Just as the use of social media has exploded with the average person in everyday interaction, so it goes with the use the of social media in political campaigns. And just as political ads have prompted regulations in traditional media – in print, radio, and television – ethics oversight agencies in the states are now facing the need to regulate political ads in social media.

In essence, we have a 1970s post-Watergate system of political ads regulation facing a completely new set of challenges with today’s political activity on the internet. How do you get all parties to agree on meanings and terms for features in electronic ads when there is no industry standard? How do you identify the source of funding for a Google or Facebook ad? How would you fit a disclosure statement into a tweet when you are limited to 140 characters? Some have said regulation of political ads in social media constitutes a restriction of the exercise of freedom of speech. Others have argued that endorsements by influential bloggers should be considered as in-kind contributions.

Two states to watch are Maryland and California. The Maryland State Board of Elections and California’s Fair Political Practices Commission (FPPC) have established rules for proper use of social media by political campaigns, PACs, and private individuals. At the Council on Government Ethics Laws 2010 conference in Washington, D.C., I had the privilege of meeting Jared DeMarinis, Maryland’s Director for the Maryland Board of Elections Division of Candidacy and Campaign Finance, and Roman Porter, Executive Director of the FPPC. It was a COGEL breakfast group discussion with them that prompted me to offer these resources in this post.

Here is the link for Maryland’s Summary Guide to Candidacy and Campaign Finance Laws. Chapter 12, section 6 deals with electronic media. Maryland’s answer to the issue of disclosure within the limited space of a social network appears to be requiring a hyperlink to a landing page that would host the disclosure information. Government Technology has a nice article from August 3, 2010 called, “Maryland Social Media Campaign Rules Take Effect,” which describes the new regulations.

California’s FPPC offers a report from the Subcommittee on Internet Political Activity called “Internet Political Activity and the Political Reform Act,” dated August 11, 2010. Here is a memorandum describing amendments, from October 2010. They also offer a helpful online FAQ page called “Electronic Media: Paid Political Advertisements.” These resources have a great deal of guidance regarding disclosure in social media political ads, what triggers the need for disclosure, and how disclosure is to be done in social media.

Perhaps the work of these two agencies will be the template for other jurisdictions! We will be watching…

Web 2.0 tag cloud graphic by Markus Angermeier on Wikipedia. Seal of California by Zscout370 on Wikipedia.

In honor of the holidays, we highlight two Web sites featuring two national holiday traditions. One is a Christmas tree tradition associated with the White House, and the other a Christmas tree associated with the United States Capitol.

The National Christmas Tree event at the White House and its Web site are both hosted by the National Park Foundation. This has been a tradition with the White House since Calvin Coolidge was President:

According to the site: “In 1923, President Calvin Coolidge walked from the White House to the Ellipse to light a 48-foot fir tree decorated with 2,500 electric bulbs in red, white and green, as a local choir and a “quartet” from the U.S. Marine Band performed. 86 years later, this American holiday tradition continues to bring citizens together to share in a message of hope and peace.”

That first tree was donated by the President of Middlebury College in Vermont. You can find much more about the tradition of the tree lighting since that first ceremony. On the National Christmas Tree site you can visit Santa, get safety tips, decorate your own virtual tree, and see a timeline of National Christmas tree pictures from the 1920s forward. This year, the National Tree lighting ceremony was on December 9 and featured performers such as B.B. King, Sarah Bareilles, and Maroon 5.

The National Park Foundation has not neglected our beloved social media – they have a Twitter account, a Facebook page, a picture-rich Flickr account, and a YouTube account where you can visit Santa’s Workshop at the Ellipse in Washington, D.C.:

On the rival Web site, you can see that this year’s Capitol Christmas Tree came all the way from Bridger-Teton National Forest in Wyoming! The tree has a celebrated travel route, including scheduled stops. Kids could track the progress of the tree via a Google map. The Capitol Christmas Tree has an official song, “The Cowboy Chrismtas Tree Song,” which can be downloaded for your mp3 player.

This year the tree lighting at the U.S. Capitol was on December 7. According to the Architect of the Capitol Web site, this tradition began in 1964 1964, at the request of Speaker of the House John W. McCormack. The Architect of the Capitol Web site has a list of trees used for the displays over the years.

A great deal of hard work and loving-care went into decorating the tree: “The people of Wyoming will make the 5,000 ornaments used to decorate the tree. The ornaments will be 9 to 12 inches tall and must be made to withstand 3 weeks of harsh winter weather.”

Photo of the National Christmas Tree at the White House courtesy of Chris Greenberg on Wikipedia, the photo of the Capitol Christmas Tree by the Office of Senator Patrick Leahy on Wikipedia, and the Santa video courtesy of the National Park Foundation hosted on YouTube.

On December 15, State and Federal Communications celebrated the season with an office holiday extravaganza! It began with an eclectic array of sushi, pulled pork, and brisket, and beverages and desserts to please any palate. Before long, though, the time for camaraderie was over and claws came out during the fast-paced treasure hunt and controversial Ethics Jeopardy, both of which pitted departments against each other in a quest for prizes.

All participants in the cubicle decorating contest received prizes for their efforts, and the winner was awarded first possession of what will become our traveling trophy—an authentic leg lamp, straight from “A Christmas Story” (which was filmed in our neighbor to the north, Cleveland, back in the ‘80’s). The day ended with the finals of our second annual Cornhole Tournament.

While we took the time to celebrate another successful year, State and Federal remained true to our philosophy of giving back and remembering it’s never all about us. For the second year in a row, our aforementioned activities were “pay-to-play,” with all non-perishable items collected going to the Greater Akron-Canton Regional Foodbank.

All of us at State and Federal Communications wish you and yours a safe and happy holiday season!

The Alabama legislature concluded its special session late Thursday. The lawmakers passed versions of all seven bills proposed by Governor Bob Riley.

The new laws modify and strengthen state lobbying, campaign finance, and ethics rules. Among the highlights of the laws heading to the Governor’s desk is a requirement for those seeking a state grant or contract with the executive branch to register as lobbyists.

Under another pending bill, a lobbyist will be forbidden from giving an official a “thing of value” with certain exceptions, such as a meal costing $25 with a total limit of $125 per year. Governor Riley’s office has indicated each of the seven passed bills will be signed into law unless the staff reviewing them discovers mistakes or errors.

Photo of Alabama State Capitol by Jim Bowen on Wikipedia.