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LOBBYING EDUCATION : PART I

LOBBYING EDUCATION : PART I. LOBBYING ETHICS. I. ROLE OF THE STATE ETHICS COMMISSION II. REQUESTING ADVICE III. GIFT BAN & GIFT BAN EXCEPTIONS IV. ADDITIONAL REQUIREMENTS, PROHIBITIONS & RESTRICTIONS ON LOBBYISTS. ROLE OF THE STATE ETHICS COMMISSION. Investigation. Interpretation.

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LOBBYING EDUCATION : PART I

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  1. LOBBYING EDUCATION:PART I

  2. LOBBYING ETHICS I.ROLE OF THE STATE ETHICS COMMISSION II. REQUESTING ADVICE III. GIFT BAN & GIFT BAN EXCEPTIONS IV. ADDITIONAL REQUIREMENTS, PROHIBITIONS & RESTRICTIONS ON LOBBYISTS

  3. ROLE OF THE STATE ETHICS COMMISSION Investigation Interpretation Investigate alleged violations of Lobbying Law, including gift ban, “cooling off” period, and other prohibitions Interpret State Government Ethics Act (Ch. 138A) and Lobbying Law (Ch. 120C) Issue advice & formal advisory opinions to anyone affected by Lobbying Law Refer alleged registration & reporting violations to Secretary of State Adopt rules interpreting all of Ch. 120C & administering Ch. 120C, except for Art. 2, 4 & 8 (registration & reporting). See 30 NCAC

  4. REQUESTING ADVICE Anyone affected by the Lobbying Law Who can request advice? Who issues advice? State Ethics Commission Advice involving specific questions relating to real or reasonably anticipated situations What can you request? When must it be requested? Before situation occurs

  5. Informal Advice vs.Formal Advisory Opinions

  6. NC’s GIFT BAN & GIFT BAN EXCEPTIONS What is it? When & to whom does it apply? What are the exceptions?

  7. Gift Ban Rule: Unless there is an exception LOBBYISTS & LOBBYIST PRINCIPALS • Cannot knowingly give a gift, directly or indirectly, to “designated individuals” • Legislators • Legislative Employees • Public Servants LIAISON PERSONNEL • Cannot knowingly give a gift, directly or indirectly, to: • Legislators • Legislative Employees Gift Ban Applies 24/7/365

  8. “Indirect Gift” • Lobbyist or Lobbyist Principal cannot knowingly give a gift with the intent that a designated individual be an ultimate recipient. • ** Effective 12-01-10 – language changed from “the” ultimate recipient to “an” ultimate recipient - broadened the indirect gift ban – for example- now it would be an indirect gift if the giver sponsors an event where food is being provided to the attendees knowing and intending for DIs to attend the event at which the food will be served = DI is an ultimate recipient of the gift and a gift ban exception must apply to give

  9. “Indirect Gift” (cont’d) • AO-L-12-002 • The Commission determined that the indirect gift ban of the Lobbying Law and the Ethics Act would apply to donations made by event sponsors who are restricted donors if those donors intended that any designated individual be “an ultimate recipient” of a donation. Thus, depending upon the intent of the donor in making in-kind and cash donations in support of the event, those donations could be restricted unless a gift ban exception applies…. • Also, even if the organization receiving the donations is not subject to the gift ban, complimentary event admission provided by the receiving organization to attending designated individuals may also be subject to the indirect gift ban. Therefore, if a restricted donor makes a contribution with the intent that those officials obtain free admission to the event, that contribution and the receipt of complimentary admission would be restricted by the indirect gift ban unless an exception applied. • However, the indirect gift ban would not restrict designated individuals from attending the event as long as they purchase tickets on the same terms as members of the general public.

  10. “Indirect Gift” (cont’d) • AO-L-11-004 The Commission determined that it would be permissible for the company to donate various items and funding to a State agency and otherwise participate in public outreach events hosted by the State agency. However, the company could not donate items with the intent that a public servant, legislator, or legislative employee (“designated individual”) be an ultimate recipient, unless a gift ban exception applied.

  11. WHO are Designated Individuals… • Legislators • Members of the General Assembly. • Individuals elected or appointed to General Assembly before taking office. • Candidates. • Legislative Employees • Employees & Officers. • Consultants & Committee Counsel. • Law school interns. • NOT included: nonsupervisory employees of facility maintenance, food services staff, & pages.

  12. WHO are… • Public Servants • Executive Branch Constitutional Officers, including individuals elected or appointed prior to taking office, & candidates. • Heads of principal State departments. • Governor’s office employees. • Policy-making positions, chief deputies, confidential assistants. • Certain managerial positions. • Others designated by Governor. • Certain UNC & community college officials, Board of Governors & boards of trustees members. • Voting members of State non-advisory boards.

  13. HOW do you know if someone is a “Designated Individual”? List available on Commission’s website at www.ethicscommission.nc.gov or by calling (919) 715-2071

  14. Click on Public Servant link – once screen is up, hit Ctrl F then type the individual’s last name in the find box, hit Next and it will search for that name in each covered board. You will need to search the individual’s name through each category of Public Servant.

  15. What is a “Gift”? • “Anything of monetary value” • Given or received without valuable consideration No de minimis exception

  16. What is NOT a “Gift”? • Paid fair market or face value. • Commercially available loans made on same terms & not for lobbying. • Contractual or commercial arrangements not made for lobbying. • Academic or athletic scholarships. • Campaign contributions properly received & reported. (Lobbyists cannot make campaign contributions to certain candidates.) • Certain expressions of condolence. • Cards, letters, notes, e-mails, etc (State Ethics Commission determination).

  17. GIFT BAN EXCEPTIONS N.C.G.S. §138A-32(e) • Food & Beverage for “Immediate Consumption” • Meetings & Conferences Generally • Non-Partisan Organizations • Informational Materials • Family, Friends, Others • Gifts to State or Related to State Business • Available to General Public • UNC Athletic Tickets

  18. Food & Beverage: Open Meetings & Gatherings Open to PublicN.C.G.S. §138A-32(e)(1) Lobbyist, Lobbyist Principal, or Liaison Personnel can pay for food & beverage for “immediate consumption”  on premises consumption • Gathering Open to the • General Public • 10 or more attendees • Sign or other communication outside gathering indicating open to the public • N.C.G.S. §138A-32(e)(1)b • If general public is required to pay fee, NOT open to the general public (30 NCAC 07B .0101) Open Meeting of Public Body Properly noticed under the Open Meetings Law N.C.G.S. §138A-32(e)(1)a

  19. Food & Beverage: Specific InviteesN.C.G.S.§138A-32(e)(1)c • Lobbyist, Lobbyist Principal, Liaison Personnel can pay for • Food & beverage for immediate consumptionwhen all members of one of these listed groups are “invited” AND one of the 2nd requirements is met: • All House or Senate members; • All members of county or municipal legislative delegation; • Recognized caucus; • Committee/commission of General Assembly; • All legislative employees; or • Public servant’s entire board orat least 10 public servants. At least 10 people associated with person or govt. unit actually attend; or all shareholders, employees, bd. members, officers, members, subscribers located in NC are invited. And “Invited” – written; at least 24 hrs. in advance; date, time, location; from at least 1 host or sponsor; if sponsored by lobbyist or lobbyist principal, must state whether gathering is permitted by this exception.

  20. Food & Beverage: Specific Invitees (30 NCAC 07B .0102 & .0103) Associated with person or govt. unit actually attend: When sponsored by lobbyists or lobbyist principals, 10 individuals associated with the “group” of sponsoring lobbyists or lobbyist principals must actually attend. • Associated with person or govt. unit: • Employee. • Director, officer, partner, holds leadership position. • Owner of interest of $10,000 or more. • Owner of 5% or more of the business. • Registered lobbyist. • Commission will make case-by-case determinations on other relationships, such as memberships in organizations. • Written notice by 1 host or sponsor to 1 of the qualifying groups is sufficient • Notices by e-mail are permitted.

  21. Food & Beverage: “Official Duty” for Public Servants N.C.G.S. §138A-32(e)(12) • Lobbyist or lobbyist principal can pay for • Food & beverage for immediate consumption at • Organized gathering where • Public servant’s attendance is primarily related to public position; and, • 10 individuals other than public servant or immediate family actually attend or all individuals connected with sponsor in specific NC office or county are notified & invited.

  22. Meetings & Conferences GenerallyEducational & Speaker/Panel MemberN.C.G.S. §138A-32(e)(3)(i) and (ii) Lobbyist principal • Can pay reasonable actual expendituresfor food & beverage, travel, registration, lodging, incidental items of nominal value, incidental entertainment. • 1)“Educational” Meeting(primarily related to public duties; see 30 NCAC 07C .0101 ); or, 2) Designated Individual is a “bona fide speaker or panel member”. • Meeting has formal agenda,notice given at least 10 days in advance and attended by at least 10 participants. • Food, beverage, transportation & entertainment must be • Provided to all attendees or defined groups of 10 or more; and, • Part of or in conjunction with meeting. • Entertainment must also be incidental to the principal agenda.

  23. Educational Meeting conti • 30 NCAC 07C. 0101 Educational Meeting Criteria A lists of non-exclusive factor considered by the Commission in determining whether an event qualifies as an educational meeting under N.C.G.S. §138A-32(e)(3)(i) **this exception has been strictly applied and meetings deemed “educational” by others may not qualify under this exception** 2011 and 2012 Educational Meeting Advisory Opinions • AO-L-11-001 • AO-L-11-002 • AO-L-11-003

  24. Nonpartisan Agency OrganizationsMeetings & Conferences N.C.G.S. §138A-32(e)(3)(iii) and (iv) Lobbyist principalONLY • Can pay reasonable actual expendituresfor DIs food & beverage, travel, registration, lodging, incidental items of nominal value, incidental entertainment. • Attendance at meeting of nonpartisan organizationwhere agency is a member or designated individual attending because of public position. • Meeting has formal agenda,notice given at least 10 days in advance and attended by at least 10 participants. • Food, beverage, transportation & entertainment must be • Provided to all attendees or defined groups of 10 or more; and, • Part of or in conjunction with meeting. • Entertainment must also be incidental to the principal agenda.

  25. Nonpartisan Agency Organizations: Gifts Made Directly to Nonpartisan OrganizationN.C.G.S. §120C-303(d) and (e) Gifts are allowed if they are: • Made by a lobbyist or lobbyist principaldirectly to • Nonpartisan state, regional, national, or international organization of which • Agency is a member; or, • Designated Individual is a member or participant by virtue of public position.

  26. Meetings & Conferences GenerallyReimbursable Expenses for Public ServantsN.C.G.S. §138A-32(f) Applies ONLY to Public Servants & NOT legislators or legislative employees. Lobbyist or lobbyist principal • Can pay for any expense that would otherwise be reimbursable by the State IF • Public servant received approval in advance from employing entity to accept the expense on behalf of the State. Actual expense may exceed State rate.

  27. Informational MaterialsN.C.G.S. § 138a-32(e)(2) • May give informational materials relevant to designated individual’s public duties.

  28. Family, Friends & OthersExtended Family N.C.G.S. §138A-32(e)(7) May give gifts to your extended family member who is a designated individual.

  29. Family, Friends & Others:Other Relationships N.C.G.S. §138A-32(e)(10) Gifts based on business, civic, religious, fraternal, personal, or commercial relationship permitted if: • Relationship is not related to the DI’s public position; and, • Reasonable person would conclude not given for “lobbying.”

  30. Family, Friends & Others:Relationship with Lobbyist Principal N.C.G.S. §138A-32(e)(11) • Lobbyist principal only can pay • Can give food & beverage for immediate consumption at, & related transportation to • Designated individual who is a director, officer, board member, employee or independent contractor of lobbyist principal or of a 3rd party that received funds from the lobbyist principal to purchase the food, beverages and/or transportation for/at • Conference, meeting, similar event • Must be available to all attendees of same class AO-L-12-003

  31. Family, Friends & Others:Plaques & Non-Monetary MementosN.C.G.S. §138A-32(e)(4) May give a plaque or similar non-monetary mementos recognizing designated individual’s services in a field or specialty or to a charitable cause

  32. Gifts to the State N.C.G.S. §138A-32(e)(5) • Lobbyist or lobbyist principal • May pay for gifts • For use by and benefit of the State

  33. Related to State Business: Public ServantsN.C.G.S. §138A-32(e)(8) Industry & Tourism Related: Food, beverage, transportation, lodging, entertainment, or related expenses if • Gift not otherwise subject to an exception • Public servant is responsible for conducting industry recruitment, international trade, or tourism promotion • Gift was not solicited or accepted in exchange for performing public duties • Gift is reported to the State Ethics Commission Cultural Protocol: Gift • Valued at less than $100 • Given in accordance with cultural protocol • As part of overseas trade mission

  34. Gifts to General Public or All State EmployeesN.C.G.S. §138A-32(e)(6) • Anything made generally available to the general public; • AO-L-10-003 LP wanted to provide event transportation to an invitation event for DIs at which DIs would be provided food and beverages. LP planned to allow the general public to ride the bus that it provided for this event. The Commission determined that allowing the general public to ride a private bus at no charge on a date, at limited times, and on a route that is specifically tailored for the benefit of the designated individuals did not result in this transportation being “generally made available to the general public.” This event transportation could not be provided to attending legislators under N.C.G.S. §138A-32(e)(6). or • All State employees.

  35. UNC Athletic TicketsN.C.G.S. § 120C-502(e) • UNC Board of Governors, UNC constituent institutions, or their legislative liaisons • Cannot give designated individuals • Athletic tickets • For lobbying (direct lobbying or goodwill lobbying)

  36. GIFT BAN REMINDERS • Gift ban applies to Executive Branch public servants. • Gift ban applies at all times. • Commission may designate other boards and commissions as covered by the State Ethics Act - • Check the Commission’s website to determine who is a designated individual = covered by the gift ban • If allowed to give it, must report it if over $10

  37. OTHER PROHIBITIONS & RESTRICTIONS “Code of Conduct”

  38. Additional Lobbyist Requirements, Prohibitions & Restrictions • Register and Report. • Prior to any lobbying communication or activity with DI - Must Identify Yourself as a Lobbyist and Disclose Identity of LP connected to that lobbying communication or activity.N.C.G.S. §120C-201(e) • No Contingency Fees. Cannot accept a fee contingent upon the outcome of lobbying. N.C.G.S. §120C-300 • Exception for individuals who are also sales people doing business with the State whose regular remuneration agreement includes commissions based on sales. • Regular remuneration means any money, thing of value, or economic benefit conferred on or received by the individual in return for services rendered or to be rendered by that individual or another.

  39. Additional Lobbyist Requirements, Prohibitions & Restrictions 4. Cannot Serve as Treasurer.Lobbyists cannot serve as campaign treasurer or assistant campaign treasurer for a political committee for the election of a legislator or Constitutional officer. 5. No Use of Cash/Credit. No lobbyist or another acting on lobbyist’s behalf can allow a DI or a DI’s immediate family member to use cash or credit of the lobbyist for lobbying, unless the lobbyist is present. N.C.G.S. §120C-305. (**gift ban applies here)

  40. Additional Lobbyist Requirements, Prohibitions & Restrictions 6. Appointments to Certain Boards Prohibited.Lobbyist ineligible for appointment by State official to any State board that has regulatory authority over the activities of a person or governmental unit the lobbyist currently represents or has represented within 120 days after lobbyist’s registration has expired. • Does not prohibit appointments by local government. • Any appointment or registration made violating this section is void.

  41. Additional Lobbyist Requirements, Prohibitions & Restrictions N.C.G.S. §120C-304 7.Legislators Cannot Be Lobbyists. “Cooling Off Period” No legislator or former legislator can be a registered lobbyist: • While in office; or, • Before the later of the close of the legislative session during which the legislator served or 6 months after leaving office. 8.Certain Public Servants Cannot Be Lobbyists. Constitutional officers and heads of principal State departments cannot be a registered lobbyist while in office or employed, or within 6 months thereafter.

  42. “Cooling Off Period” for “State Agency” Employees An employee of a “State agency” Cannot register as a lobbyist To lobby the State agency that previously employed him or her For 6 months after leaving the State agency Applies to all employees of a State agency, If the former employee registers as a NC lobbyist within the 6 mo. period, the employee must indicate his/her former employing State agency “State agency” an agency in executive branch

  43. “Cooling Off Period” (cont’d) • N.C.G.S.§120C-304 • “Cooling Off Period” does not apply to legislative employees • AO-L-11-005 • Lobbying Law “cooling off period” does not apply to local government liaison personnel. • AO-L-12-001 • A registered lobbyist may file a notice of candidacy for a state elected legislative office and continue to lobby while he or she runs for a state legislative office. If elected to office in the 2012 election, the lobbyist will need to cease lobbying and terminate his or her registration as a lobbyist effective on or before December 31, 2012, as the legislative office term will commence on January 1, 2013. If not elected the lobbyist can continue to lobby and can re-register as a lobbyist in 2013 as he or she will not have been “in office” so there will be no “cooling off” period applicable under the Lobbying Law.

  44. Liaison Personnel - State and Local GovN.C.G.S. §120C-500, -501 and -502 State employees, counsel employed under N.C.G.S. §147-17, officer, OR local government employee whose principal duties include “lobbying” legislators or legislative employees. • NOT a “lobbyist”. • Employing or appointing State entity is NOT a lobbyist principal. • Must register and report. • No registration fee. • Gift Ban applies to giving to legislators and legislative employees.

  45. Lobbying Education: Part II

  46. “LOBBYING”

  47. Registration and Reporting • What triggers the requirement to register and report? • Who must register and when? • What must be reported? • When must the report be filed?

  48. What Triggers the Requirement to Register? Lobbying for Payment

  49. What is “Lobbying” N.C.G.S. §120C-100(a)(9) a. and b. • Direct communications or activities with a designated individual or a designated individual’s immediate family member • Designed to influence current or future legislative or executive action • Also Includes developing goodwill through communications and activities, including the building of relationships, designed to influence current or future legislative or executive action

  50. Communications or activities with a DI or DI’s immediate family • Designated Individuals include: • Legislators, legislative employees; and • Legislative candidates who have filed • Public servants (N.C.G.S. §138A-3(30)): and • State constitutional officer candidates who have filed

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