Advisory Opinion No. 2004-13

Application Of The Lobbyist And Public Official’s Codes To A Family Member Communicating With A Legislator’s Legislative Committee

The Ethics Commission has been asked about the application of the Code of Ethics to the following situation.  A legislator who sits on the Public Health Committee has a non-dependent child who is registered as a communicator lobbyist for three different organizations.  Recently, the individual has been communicating with the Chairman of the Public Health Committee on a “pro bono” basis for the purpose of introducing a group of outpatient surgical centers to the Chairman.  There is legislation pending before the Committee which is of interest to the group of surgical centers and the individual believes the group could provide useful information to the Chairman.  The individual is not presently being compensated in any way by the surgical centers and therefore has not registered to lobby (and is not obligated to do so) on their behalf.  The individual is also assisting the group to form an association of surgical centers which, when organized, will likely engage in some lobbying efforts.  The individual is hoping that if she is successful in forming this association of dues-paying surgical centers, she will be appointed the paid executive director for the organization.

The Ethics Commission has been asked to address the propriety of such a situation, including whether it is appropriate for an individual to lobby a legislative committee on which an immediate family member sits.  In particular, the concern has been raised that if it is permissible for an individual to lobby a family member, then an organization might hire a communicator lobbyist solely because of that person’s special access to his or her legislator-family member.

The Code of Ethics contains no express ban on communicator lobbyists lobbying their family members.  Rather, the Code prohibits public officials and/or state employees from using their public office or position to obtain financial gain for themselves, their spouse, child, child’s spouse, parent, brother, sister, or a business with which they are associated. Conn. Gen. Stat. §1-84(c). Additionally, the Code prohibits public officials or state employees from influencing, directing or soliciting existing or new lobbying contracts for or on behalf of any person. Conn. Gen. Stat. §1-84(l).  There is nothing inherent in a child lobbying a parent’s legislative Committee that would constitute an automatic violation of either of these sections.

The situation described here, however, does raise concerns about the possibility of contingent fee lobbying, which is banned pursuant to Conn. Gen. Stat. §1-97(b).  In particular, that section states:  “No person shall be employed as a lobbyist for compensation which is contingent upon the outcome of any administrative or legislative action.”  The term “lobbyist” is defined as “a person who in lobbying and in furtherance of lobbying makes or agrees to make expenditures, or receives or agrees to receive compensation, reimbursement, or both, and such compensation, reimbursement, or expenditures are two thousand dollars or more in any calendar year or the combination thereof is two thousand dollars or more in any such calendar year.”  The contingency fee ban was enacted “to prevent the undue pressure for lobbying success, and consequent pressure to engage in unethical conduct, inherent in a contingent payment arrangement.” Advisory Opinion No. 94-3, 55 Conn. L.J. No. 37, p. 6D (3/15/94).

In this case, it is assumed that the lobbyist’s communications constitute lobbying activity. See State Ethics Commission Declaratory Ruling 2000-A, ABC, LLC v. State Ethics Commission, 264 Conn. 812 (2003) (plaintiff’s appeal dismissed for lack of aggrievement).  Nevertheless, it is clear that if the lobbyist is not being compensated or reimbursed in any way by the group of surgical centers, she is not required to register as a lobbyist on their behalf.

What is not clear, however, is whether the outcome of the legislation pending before the Public Health Committee will have any bearing on the formation of the association of surgical centers.  The State Ethics Commission has held that the term “contingent” as used in Conn. Gen. Stat. §1-97(b) shall be construed according to its commonly approved and understood meaning.  Advisory Opinion No. 94-3, supra.:

“Contingent” is commonly understood to mean “dependent on, associated with, or conditioned by something else. . . . dependent for effect on, or liable to modification by, something that may or may not occur…” Webster’s Third New International Dictionary Volume I at p. 493, Merriam & Webster (1986).

Advisory Opinion No. 94-3, supra.

Where the outcome of the legislative action will “clearly contribute to,” whether or not a lobbyist is paid, the State Ethics Commission has held that a contingent fee agreement exists.  Alternatively, where the lobbyist’s payment is “substantially dependent on,” but “not necessarily totally determined by,” the outcome of the legislation, the compensation is contingent. Id.  Thus, if the legislation will impact whether or not the association is formed, and whether or not the lobbyist is appointed the association’s paid Executive Director, then such an arrangement would violate the ban on contingent fee lobbying.Moreover, if the lobbyist’s appointment as Executive Director is contingent upon the outcome of the legislation, then any action on such legislation by the legislator-family member might constitute a use of office by the legislator for the financial gain of his or her child, in violation of Conn. Gen. Stat. §1-84(c).

It should be emphasized, however, that absent any other conflict of interest, only if there is a contingent fee relationship between the lobbyist and the group of surgical centers could there be a use of office for financial gain by the legislator.  Under the circumstances described herein, assuming that there is no contingent fee arrangement, the legislator has not used his or her office for anyone’s financial gain.  While some might think it seems untoward to have a lobbyist lobbying his or her immediate family member, there is no provision of the Code that expressly prohibits such conduct.  Furthermore, so long as the legislator-family member (or someone acting on that person’s behalf) did not “steer” the organization to hire his or her family member, there is no prohibition on the organization deciding to hire a particular lobbyist solely because of the lobbyist’s relationship to one or more members of a particular committee. See Conn. Gen. Stat. §1-84(l), supra.  If the General Assembly believes that such a prohibition is warranted, the legislature may pass legislation to do so. In the absence of an express ban on lobbyists lobbying their family members, none will be found.

By order of the Commission,

Rosemary Giuliano
Chairperson