On Monday, the American League of Lobbyists (ALL)  made a statement against a new Obama administration proposal restricting lobbyists’ gifts to executive branch employees. It would also restrict those employees’ attendance to certain events sponsored by lobbyists, companies, and organizations.

Howard Marlowe, president of the organization, states: “The American League of Lobbyists strongly objects to this proposed rule and asks that it be withdrawn immediately. The Administration has offered no reports of even a single abuse of its current regulations to warrant the severe restrictions it has proposed on the mutual flow of information and expertise between lobbyists, their employers, and Federal workers.”

Here is a draft summary of the Obama administration’s proposed rule.

The “Lobbying in the News” page for ALL lists these three articles covering the news:

• “Lobbyists object to Obama proposal that would tighten rules for federal workers,” by T.W. Farnam in the Washington Post.
• “Lobby league opposes Obama rule,” by Anna Palmer and Dave Levinthal on the Politico Influence page.
• “Lobbyists’ group objects to new rule banning gifts to all federal employees,” by Kevin Bogardus in The Hill.

You can keep up with the latest discussions on the American League of Lobbyists Twitter feed (@LobbyistsLeague).

The Office of Government Ethics (O.G.E.) has issued proposed lobbyist gift ban rules, which would apply to all executive branch employees.

Most of the proposed rules deal with limiting, for lobbyists, the exceptions of the ban on gifts. For example, executive branch employees would not be permitted to accept invitations extended by lobbyists for free attendance at widely attended gatherings that would normally fall under the gift ban exception. Non-profit professional associations, scientific organizations, and learned societies, which are also sometimes registered lobbyists, would still be afforded the exception. The O.G.E. based much of its reasoning on the notion “the cultivation of familiarity and access that a lobbyist [gains]” may be used in the future by lobbyists to obtain more sympathetic hearings for clients.

Another change would preclude lobbyists from the gift ban exception of social invitations, such as invitations to cocktail parties and movie screenings, if the invitations were extended because of the employee’s official position, even if the lobbyist is not a prohibited source. The O.G.E. argues in its proposal that “the lobbyist could use social events as a way to build general good will with a class of employees in case access is needed for a future issue or client.”

The proposed rules arise because an earlier Presidential Executive Order regarding gifts to non-career political appointees, which had called for the O.G.E. “to apply the lobbyist gift ban set forth [in the order] to all executive branch employees.” Written comments about the rule must be received by the O.G.E. before November 14, 2011

One measure limits gifts to the mayor and councilors to $50 or less. Another measure creates an ethics board to enforce the newly created gift limits.

The measures were somewhat controversial because many thought the gift restrictions were not strict enough.

On July 28, 2011 the Chicago City Council passed a new ethics reform ordinance. The ordinance is part of Mayor Rahm Emanuel’s efforts to provide more government transparency.

The new ordinance includes five key provisions. First, it creates a searchable online system for lobbyist registration and reporting. Second, it adds the term “lobbyist” to the group of people subject to the $50 gift restriction per single non-cash gift and $100 aggregated gift limit per each calendar year. Third, the new ordinance prohibits city employees, officials, or their businesses from applying for or receiving loans from lobbyists.

Fourth, the ordinance amends the semi-annual lobbyist activity report form to require lobbyists to disclose all campaign contributions to city elected officials and city employees running for office. Lastly, the ordinance codifies the revolving door provision created by Mayor Emanuel’s May 16, 2011 executive order.

Photo of the Chicago River by Robert S. Donovan on Wikipedia.

The three reissued executive orders include a ban on political contributions to the mayor from the owners of companies that do business with the city, an order requiring city employees to comply with hiring oversight rules, and an order reaffirming that it is the duty of every city employee to report wrongdoing to the inspector general.

The first new executive order prohibits new appointees from lobbying city government for two years after leaving the administration, bars lower level employees from lobbying the departments or agencies in which they work, and bars appointees to boards and commissions from lobbying the board or commission on which they sit.

The second new executive order protects city employees from being pressured to give gifts or make political contributions to their superiors.

The third new executive order prohibits city lobbyists from making political contributions to the mayor.

State Senator Kathy Stein has introduced legislation to make Kentucky a “no cup of coffee” state. The bill would reduce lobbyist’s annual expenditure ceiling from $100 per year on a state official to absolutely nothing.

Additionally, the proposed ethics law would extend Kentucky’s prohibition on lobbyists making campaign contributions during a legislative session to the lobbyists’ employers and to PACs.

Photo courtesy of Julius Schorzman on Wikipedia.

Governor Brian Sandoval signed Executive Order 2011-02 establishing a new ethics gift rule for the governor’s senior staff, cabinet, all division heads of cabinet agencies, and himself as governor.

The order prohibits gifts which might be intended to influence or reward an individual in the performance of his or her official business. The order also requires notification of the ethics requirements to vendors doing business with the state and those receiving state grants.

Photo of Governor Sandoval courtesy of Brian Sandoval on Wikipedia.

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.

The state’s Public Services Commission approved new ethics rules last week by a 3-0 vote of the commissioners. These regulations prohibit a commission employee from soliciting or accepting a gift or campaign contribution from a lobbyist representing an industry regulated by the commission.

The new rules took effect immediately upon approval by the commissioners. The Public Services Commission regulates public utilities and telecommunications providers in Alabama.

Map of Alabama by JimIrwin on Wikipedia.

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.