Advisory Opinion No. 2003-5

Application )Of The Lobbyist Code’s Registration Requirements To Communications Made To State Officials For The Purpose Of Influencing Federal Action

As a result of recent questions, State Ethics Commission Principal Attorney Brenda Bergeron has asked whether and under what circumstances someone must register to lobby if they communicate with a state official for purposes of affecting federal action.

"Lobbying" is defined as "communicating directly or soliciting others to communicate with any official or his staff in the legislative or executive branch of government or in a quasi-public agency, for the purpose of influencing any legislative or administrative action . . .." Conn. Gen. Stat. §1-91(k). "Legislative action" is defined as the "introduction, sponsorship, consideration, debate, amendment, passage, defeat, approval, veto, overriding of a veto or any other official action or nonaction with regard to any bill, resolution, amendment, nomination, appointment, report, or any other matter pending or proposed in a committee or in either house of the legislature, or any matter which is within the official jurisdiction or cognizance of the legislature. " Conn. Gen. Stat. §1-91(j). "Administrative action" is defined as "any action or nonaction of any executive agency of the state with respect to the proposal, drafting, development, consideration, amendment, adoption or repeal of any rule, regulation or utility rate, and any action or nonaction of any executive agency or quasi-public agency, as defined in section 1-79, regarding a contract, grant, award, purchasing agreement, loan, bond certificate, license, permit or any other matter which is within the official jurisdiction or cognizance of such an agency."

Historically, the State Ethics Commission has looked to the purpose of the communication to ascertain the type of lobbying. For example, the State Ethics Commission has held that lobbying to affect legislative action includes not only contact with legislators and their staff, but also contact with executive branch officials and employees meant to influence their actions with regard to the legislative process. State Ethics Commission Advisory Opinion No. 95-13, 57 Conn. L.J. 16, p. 1E (10/17/95). Conversely, administrative lobbying includes not only contact with officials and staff of executive or quasi-public agencies, but also contact with legislative officials and their staff where the purpose of said contacts is to influence administrative action.

Here, the State Ethics Commission has been asked when -- if at all -- one must register to lobby if the communications with state officials are solely for the purpose of influencing federal action. Consistent with the State Ethics Commission’s above-stated rule for determining the type of lobbying one is doing, the response is, generally speaking, not at all as long as the communicator is not seeking to influence any state administrative or legislative action.

There are, however, foreseeable exceptions to this general rule. First, when state legislative action is a precondition to getting federal action then communications with state officials to accomplish the state action would constitute legislative lobbying. Thus, for example, if a federal agency requires states to have certain safety standards before doling out federal grant money, then a business’ communications to get the state legislature to change the standards would constitute legislative lobbying even if the business’ ultimate goal is to obtain the federal grant money. In such a case, the requirement that the state legislature act to change the standards becomes legislative action unto itself, independent of the ultimate federal purpose.

A second exception to the general rule is when state administrative action is required before the targeted federal action can occur. In that case, any communications with state officials to achieve the administrative action could constitute administrative lobbying. For example, if a business is seeking a federal grant or permit that requires a state agency’s preliminary approval, the business’ communications with the state agency authorized to give that approval could fall within the definition of administrative lobbying. In such a case -- unlike the legislative example above -- it may still be true that one of the exceptions to the requirement to register as an administrative lobbyist applies (e.g., the preparation of submissions required by statute, regulation or agency rule), thereby alleviating the need to register as a lobbyist. Of course, as with any other communications with an executive or quasi-public agency, if the communicators go outside the agency’s established rules and procedures for obtaining said approval, the business and its communicators could still be required to register as administrative lobbyists. See Regs. of Conn. State Agencies §1-92-42a(b) and State Ethics Commission Advisory Opinion No. 97-5, 58 Conn. L.J. 35, p. 5E (2/25/97).

To reiterate, the general rule for entities communicating with state officials for the purposes of interceding in federal action is that said communications do not constitute lobbying as long as no state action is required in order to obtain the federal action.

By order of the Commission,

Rosemary Giuliano
Chairperson