by Benjamin Fierro III
The Profession
On January 1, 2010, the most sweeping reform of the state’s lobbying law since the early 1990s became effective. As was the case with past reforms, the Legislature was spurred to action by allegations of corruption and unethical behavior by some elected officials and others. The enactment of Chapter 28 of the Acts of 2009, which also amended the state’s campaign finance and ethics laws, was intended to address perceived shortcomings in those laws.
Of particular interest to attorneys are the changes to the state’s lobbying law (G.L. c. 3, §§39-50). That’s because activities previously thought to be the practice of law might now be considered lobbying.
What Is a Lobbyist?
A lobbyist is a person who for compensation or reward engages in lobbying, which includes at least one lobbying communication with a government employee made by said person. To be considered a lobbyist, an individual must be paid for engaging in lobbying activities. However, a person’s compensation, whether salary or fee, need not be specifically allocated to lobbying for that individual to be considered a lobbyist. “Compensation” also includes any additional employee benefits, such as an equity interest in an organization, health insurance, pension contributions, life insurance or commuter benefits. See Lobbying Advisory Opinion 10-16, Secretary of State’s Advisory Opinion.
“Executive Lobbying” and “Legislative Lobbying”
The Statute recognizes two types of lobbying activities. “Executive lobbying” is “any act to promote, oppose, influence, or attempt to influence any officer or employee of the executive branch or an authority, including but not limited to statewide constitutional officers and employees thereof, where such decision concerns legislation or the adoption, defeat or postponement of a standard, rate, rule or regulation . . . or any act to communicate directly with a covered executive official to influence a decision concerning policy or procurement.”
“Legislative lobbying” is “any act to promote, oppose, influence or attempt to influence legislation, or to promote, oppose or influence the governor’s approval or veto thereof, including the introduction, sponsorship, consideration, action or non-action with respect to any legislation.”
The definitions of “executive lobbying” and “legislative lobbying” also include any act to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with lobbying at the state level. An attorney who testifies on behalf of a client before a city council in support of a home rule petition that requires the approval of the Legislature, and who later attends a meeting with a state representative on that petition, would be engaging in lobbying.
Excluded from the definition of “executive lobbying” is providing written information in response to a written request from an officer or employee of the executive branch or an authority for technical advice or factual information regarding a standard, rate, rule, regulation, policy, or procurement. Similarly, “legislative lobbying” excludes providing written information in response to a written request from an officer or employee of the legislative branch for technical advice or factual information regarding any legislation.
What activities constitute lobbying was among the most significant of the changes to the law. The term “lobbying” is no longer limited to direct communication with a covered public official. It was expanded to include “strategizing, planning and research if performed in connection with, or for use in, an actual communication with a government employee.”
The terms “strategizing,” “planning” and “research” are not defined in the law but could easily ensnare an attorney. “Strategizing” and “planning” might encompass advice to a client on how a proposed law, rule, rate, regulation or policy may affect its interests and development of arguments that are used by the client to influence a government official. “Research” would include a legal analysis of comparative statutes from other states that is used by a client to advocate for the enactment of similar legislation. Drafting legislation or testimony to be given to a government employee would constitute lobbying.
While an attorney might engage in the aforementioned lobbying activities for compensation, he or she does not have to register as a lobbyist unless those activities are accompanied by at least one lobbying communication by that attorney. And, even if an attorney does have one lobbying communication with a public official, he or she may nevertheless be exempt from registering as a lobbyist if the lobbying is only “incidental,” as explained below.
Exemption for “Incidental Lobbying”
The Statute has long provided an exemption from lobbyist registration requirements under certain circumstances—even if the activity an individual engages in fits the definition of “lobbying.” However, the reduction in scope of this so-called “safe harbor” provision is especially noteworthy.
Prior law exempted an individual from lobbyist registration if that person engaged in lobbying for not more than 50 hours during a six-month period or received less than $5,000 for such services during that period, because in that case the person’s lobbying was presumed to be incidental to his or her regular and usual business or professional activities. This provision exempted many lawyers who were not full-time lobbyists.
Chapter 28 narrowed the incidental lobbying exemption so that it now applies only to persons who were engaged in lobbying for not more than 25 hours during a six-month period and who received less than $2,500 for such services during that period. To be presumed to have engaged in “incidental lobbying,” an individual must meet both conditions. The law is silent as to whether this presumption is absolute or rebuttable.
Exemptions for Executive Lobbying
The Statute provides that certain communications with an executive official regarding a matter of “policy or procurement” are exempt from the definition of “executive lobbying.”
“Policy” is defined as a plan or course of action which is applicable to a class of persons, proceedings or other matters and which is designed to influence or determine the subsequent decisions and actions of any covered executive official. It does not include the adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis, such as the issuance or denial of a license, permit, or certification or a disciplinary action or investigation involving a person.
Thus, preparing, submitting and negotiating agreements regarding public benefits such as grants, tax credits or other economic incentives would not constitute “executive lobbying.” In addition, meeting with state officials on behalf of a client to secure a permit or negotiating and drafting permit conditions would also not be lobbying.
However, an attorney’s representation of a client seeking a license or permit could become “executive lobbying” under certain circumstances. Consider the case of a lawyer representing a developer seeking a state permit. While the state agency might be supportive of the project, its regulations may prohibit it from issuing the permit. If the attorney proposes a change to the regulations that would both further the agency’s goals and allow the permit to be issued, such advocacy by the attorney, including the drafting of an amendment to the regulations, would constitute “executive lobbying.”
The exemptions from the definition of “executive lobbying” include the following: (a) A request for a meeting, the status of an action or any similar administrative request; (b) An act made in the course of participation in an advisory committee or task force; (c) An act required by subpoena or civil investigative demand; (d) A communication made with regard to a judicial proceeding or a criminal or civil law enforcement inquiry, investigation or proceeding; (e) An act made in compliance with written agency procedures regarding an adjudicatory proceeding; (f) An act made on behalf of an individual with regard to that individual’s benefits, employment or other personal matters; (g) A response to a request for proposals or similar invitation for information relevant to a contract; (h) Participation in a bid conference or an appeal or request for review of a procurement decision. “Procurement” is defined as the buying, purchasing, renting, leasing or otherwise acquiring or disposing, by contract or otherwise, of supplies, services or construction or the acquisition or disposition of real property or any interest therein; but not including any item of expenditure the value of which is $25,000 or less.
Statutory Obligations and Limitations of a Lobbyist
A registered lobbyist must comply with a number of statutory requirements, including: filing an annual registration statement with the Secretary of State; completing an annual in-person or on-line seminar on the lobbying law; paying an annual filing fee; and filing semi-annual disclosure reports. Those disclosure reports must provide an itemized statement of expenditures and campaign contributions by the lobbyist and a detailed statement of the lobbyist’s activities, including identifying all matters acted upon, the name of each client and the amount of compensation received.
Among the more controversial aspects of Chapter 28, was a new requirement that lobbyists disclose “all direct business associations with public officials.” The Secretary of State maintained that because a lobbyist is doing business when he or she contacts a legislator in an attempt to influence legislation, those communications create a “business relationship” between the two that required disclosure. A diverse group of lobbyists challenged the secretary’s interpretation as wrong as a matter of statutory interpretation. On February 1, 2013, Judge Janet Sanders entered judgment in favor of the plaintiffs finding that the law required only that lobbyists disclose any financial or commercial relationships with a government official. See Gibbons, et al v. Galvin, (No. 12-3278, Suffolk Superior Court).
Registered lobbyists are prohibited by law from entering into contingent fee arrangements for their services as a lobbyist, giving any gift or paying for any meal or beverage consumed by a public official or employee, and making a political contribution to any one candidate for state, county or municipal office in excess of $200 annually.
Statutory Obligations of a Client of a Lobbyist
A client retaining the services of a lobbyist is required to file an annual registration statement with the Secretary of State and semi-annual disclosure reports. These reports must list all expenditures incurred or paid separately by the client during the reporting period in connection with its lobbying activities. These expenses would include lobbying services provided by an attorney, even if the attorney did not meet the statutory definition of a lobbyist or was otherwise exempt from registering as a lobbyist.
Advisory Opinions
An attorney who is unsure whether his or her representation of a client might be considered lobbying should seek an advisory opinion from the Secretary of State. An opinion, unless amended or revoked, is a defense in a criminal action brought pursuant to the lobby law and is binding on the Secretary of State, the Attorney General or the District Attorney in any subsequent proceedings, subject to certain conditions.
Conclusion
Now more than five years later, there is little doubt that Chapter 28 has swelled the ranks of registered lobbyists–including many lawyers who in the course of their practice usually don’t walk the halls of the State House. Lawyers who are representing clients in matters that bring them in contact with legislators or state government officials should carefully review the Statute to ensure they are in compliance with the law.
Benjamin Fierro III is a partner in the firm of Lynch & Fierro LLP, Counsellors At Law. He has more than 30 years experience in the field of legislative, regulatory and public policy law. In 1995, he served on the Boston and Massachusetts Bar Association Ad Hoc Committee on Amendments to the Lobby Statute.
