Advisory Opinion No. 1999-16

Application Of Code Of Ethics For Lobbyists To Private Agencies
Under Contract With Department of Mental Retardation

John Houchin, Director of the Eastern Region of the Department of Mental Retardation ("DMR"), has asked how the Code of Ethics for Lobbyists, Conn. Gen. Stat. §1-91 et seq., applies to private agencies and other independent contractors under contract with DMR. Specifically, Dr. Houchin asks what types of activities are considered lobbying, including: (1) participation on a DMR committee developing policies and procedures; (2) requesting a legislator to intercede with DMR regarding a problem with the contract, and; (3) hosting a breakfast or lunch for area legislators to promote the private agency and private sector contracted services.

An individual or organization communicating with, or soliciting others to communicate with, an official, or his or her staff, in the legislative or executive branch of state government for the purpose of influencing any legislative or administrative action and receiving or spending, or agreeing to receive or spend, $2000 or more in the aggregate in a calendar year (including the pro rated value of a salary) in lobbying and in furtherance of lobbying is a lobbyist and must register with the State State Ethics Commission. See Conn. Gen. Stat. §§1-91(k), (l).

Among the numerous exceptions to this broad definition of lobbying is an exception for participation on a legislative task force, even by a registered lobbyist, where the enabling legislation for the task force requires certain appointed members to represent particular viewpoints. The time spent in such participation up until the release of the task force report is not considered reportable lobbying activity, but any subsequent activity by the lobbyist to try to encourage or discourage legislative action of the recommendation is considered lobbying. The State Ethics Commission has recently ruled that this exception not extend to participation on an ad hoc working group established by the Department of Public Utilities to study issues raised under recent legislation, because the groups are not legislatively mandated and are, therefore, not subject to the formal and public structure of a statutorily-authorized task force. See Advisory Opinion No. 98-32, 60 Conn. L. J. 27, p. 9E (1/5/99).

Applying these rules to Dr. Houchin’s first question, if the DMR committee is established by legislative mandate or by an agency regulation approved by the legislature, then time served on the committee would not be reportable lobbying activity, according to the exception described above. If, however, the private agency is asked to participate in an ad hoc committee set up by DMR to study a particular issue, the time spent on the committee is considered administrative lobbying, even if DMR has requested the private agency’s participation. See, for example, Advisory Opinion No. 78-13, 40 Conn. L.J. 8, p. 11 (8/22/78) (Insurance firm is lobbying when it provides information requested by a legislative committee with the intent to influence legislative action); and Regulations of Connecticut State Agencies, §1-92-42a(c), ("[C]ommunications regarding an agency’s adoption of generic policies, analogous to rules or regulations, which affect the rights duties or privileges of classes of persons" is considered administrative lobbying.)

Turning to the second issue raised by Dr. Houchin, State Ethics Commission regulations exclude from the definition of administrative lobbying "ordinary and customary communications made to the agency, or a related entity, including, but not limited to, communicates made incident to the performance of a contract…" See Regulations of Connecticut State Agencies, §1-92-42a(e)(2). Therefore, normal interactions between a private agency and DMR pursuant to a contract are not considered lobbying. If, however, the private agency seeks to circumvent the usual process by asking a legislator or the Governor’s office to intervene, or even by seeking intervention from someone at DMR outside the normal process, such as the Commissioner, then that activity by the private agency is administrative lobbying. See Regulations of Connecticut State Agencies §1-92-42a(b), and Advisory Opinion No. 97-5, 58 Conn. L. J.40, p.9D (4/1/97) (Lobbyist Code registration requirements apply to actions taken outside the established rules and procedures of an agency.)

Finally, Dr. Houchin asks whether hosting a breakfast or lunch for area legislators is considered lobbying activity. If the purpose of the event is to muster support for legislative funding of private agencies or to secure legislative support for the award of a DMR contract, then such activity does constitute lobbying. Therefore, the amount spent by the agency on the event must be considered in determining whether the private agency has reached the $2000 annual threshold which triggers the registration requirement.

The foregoing discussion demonstrates that determining whether certain activity is considered lobbying under the Code can be a complex matter. Therefore, any private agency facing this issue should contact the Commission staff for assistance.

By order of the Commission,

Stanley Burdick,
Chairperson