ADVISORY OPINION 2008-9

Exception to the Requirement to Register as a Communicator Lobbyist

I.          INTRODUCTION

The Citizen’s Ethics Advisory Board issues this advisory opinion at the request of Anita Schepker, a registered lobbyist and president of the Association of Connecticut Lobbyists.  Ms. Schepker asked the following questions about the exceptions to the requirement to register as a communicator lobbyist.

II.        QUESTION

Whether a regular employee of a client lobbyist may be considered an “expert witness” and, thus, exempted from the requirement to register as a lobbyist.   

III.       ANSWER

A regular employee of a client lobbyist may be considered an “expert witness” and, thus, exempted from the requirement to register as a lobbyist.   

IV.       ANALYSIS

Who may be considered an “expert witness?”

Although the Code of Ethics for Lobbyists (“Code”) does not define the term “expert witness,” § 1-92-44 of the Regulations of Connecticut State Agencies does define the term.  The regulations exclude expert witnesses from the definition of lobbyist.  As the regulations indicate:

‘Expert witnesses’ are individuals[1] who appear before legislative committees or executive agencies to give testimony on subjects concerning which said individuals have specialized or technical expertise, beyond the ken of the average layman, obtained through knowledge, skill, experience, training, or education. The term ‘lobbyist’ does not include an expert witness who provides legislative or administrative testimony where such testimony becomes part of the record of any legislative, regulatory, or administrative agency's public proceeding: (1) which is conducted as an open public hearing for which notice is given pursuant to applicable law; and (2) of which a record is created in a manner which makes possible the creation of a transcript; and (3) with respect to which full public access is provided according to law, to such record or transcript and to all written material which becomes part of the record; and (4) prior to which a statement of intent to provide testimony as an expert witness, with a summary of his or her credentials in support thereof, shall have been filed with the Office of State Ethics.  Payments to expert witnesses shall be reported in the financial report of client registrants in the same manner as other expenditures for lobbying activities are presently reported.[2]

The definition of “expert witness” specifies certain requirements, none of which involve the individual’s place of employment.  The term “individual” is used throughout that regulatory provision.  Thus, any individual with specialized or technical expertise, beyond the ken of the average layman, who obtained such expertise through knowledge, skill, experience, training, or education may serve as an expert witness so long as all of the requirements set forth in § 1-92-44 are met.  Of particular import is the little-known requirement to file a summary of the expert’s credentials with the Office of State Ethics prior to providing testimony as an expert witness. 

By order of the Board,

                                                                                                Robert Worgaftik, Chairperson

Dated_____11/20/08______________