CEO 18-07—April 25, 2018
EXECUTIVE BRANCH LOBBYING
CONTRACTING WITH RECIPIENT OF LINE-ITEM APPROPRIATION
TO ASSIST IN SUBMISSIONS TO STATE AGENCY
To: Name withheld at person's request (Crawfordville)
A person who contracts with a recipient of State funds in order to assist the recipient with submissions to a State agency related to a project-specific line-item legislative appropriation to the agency is not required to register as an Executive Branch lobbyist under Section 112.3215, Florida Statutes, so long as such activities do not involve agency policy or procurement or attempts to gain the goodwill of an agency official or employee. CEO 99-4 is referenced.1
Is a person who assists a recipient, chosen by the Legislature, of State funds to carry out a project financed by a line-item legislative appropriation required to register as an Executive Branch lobbyist under Section 112.3215, Florida Statutes?
Under the circumstances presented, your question is answered as set forth below.
In your letter of inquiry, authorized under Section 112.3215(12), Florida Statutes,2 you ask whether certain activities are considered lobbying under the statute3 and Commission rules4 governing Executive Branch lobbyist registration. You state that you own a company which you created, in part, to assist public and private entities who are recipients of project-specific line-item legislative appropriations in navigating the State agency agreement process. You state that, following a legislative appropriation for a particular project, "the legislatively assigned agency works with the recipient to develop a project specific agreement, on a case-by-case basis." For example, a client could be a county receiving State economic-development funds to assist business entrepreneurs in that county. You explain that your service to such recipients (your clients) would include assistance with State agency submissions, including drafting and monitoring agreements and amendments; drafting/reviewing reports and payment requests; and closure of completed or terminated agreements.
The term "lobbying" is defined in Rule 34-12.020(6), F.A.C., as:
. . . seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement or an attempt to obtain the goodwill of an agency official or employee.
You would be required to register as an Executive Branch lobbyist if your efforts to influence a State agency are related to matters concerning policy or procurement or if you engage in activities which are attempts to obtain the goodwill of an agency official or employee. The terms "policy" and "procurement," the statutory terms relevant to our consideration of the facts you have presented, are defined in our Executive Branch lobbyist registration rules as follows:
"Policy" means a plan or course of action which is applicable to a class of persons, proceedings, or other matters, and which is designed to influence or determine the subsequent decisions and actions of an agency . . . . The term does not include the adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis, such as would be involved in the issuance or denial of a license, permit, or certification or in a disciplinary action or investigation involving a person. [Rule 34-12.020(9), F.A.C]
"Procurement" means the purchase or acquisition of any property, interest in property, or services by an agency. [Rule 34-12.020(11), F.A.C.]
In your letter of inquiry, you suggest that a project-specific line-item appropriation is predetermined by the Legislature and the Governor and that your assistance to clients in matters related to subsequent "case-by-case" project agreements (contracts) between a recipient (your client) and a legislatively-assigned agency would not be a policy matter under the "case-by-case" exception to the policy definition in Rule 34-12.020(9), F.A.C. While it is true that activities related to "adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis" are excepted from the definition of policy, this exception applies to State agency matters concerning "issuing or denial of license, permits, or certification or individual cases related to licensing or discipline." An appropriation of funds to an agency to carry out a legislatively mandated project would not normally be a licensing or disciplinary matter, and, thus, the "case-by-case" exception would not apply to a project unrelated to licensing or discipline that an agency undertakes with a recipient of a line-item appropriation.
Therefore, the question remains as to whether your assisting clients with making agency submissions are activities related to policy or procurement when they are undertaken on behalf of a client who is a recipient of funds from a legislative line-item appropriation. Under the scenario you describe, the Legislature and the Governor would have made initial key decisions as to an appropriation in the State budget to finance a specific project prior to your contracting with a client (a recipient) to assist the client with details of planning and completing the project which is to be supervised by an assigned State agency. Your proposed activities to assist clients are analogous to an example in our rules of activities that would not constitute lobbying. These proposed activities include your assistance to a client(s) with State agency submissions including drafting or reviewing reports and payment requests, drafting and monitoring agreements and amendments, and closure of completed or terminated agreements. As to your assistance in drafting agreements, you explained in a telephone call with our staff that such an agreement would be between a recipient and a State agency as to details of carrying out an underlying contract involving a legislative appropriation and would not be related to a State agency procurement or policy. These types of communications with a State agency are consistent with the example in our rule of activities providing "advice or services communicated to an agency which arise out of an existing contractual obligation to render the advice or services provided" and which do not constitute Executive Branch lobbying.5 See CEO 99-4.
Therefore, under the facts presented, we find that you or your company are not required to register as an Executive Branch lobbyist or lobbying firm under Section 112.3215, Florida Statutes, and our corresponding rules.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2018, and RENDERED this 25th day of April, 2018.
Michelle Anchors, Chair
Opinions of the Commission on Ethics may be obtained from its website at www.ethics.state.fl.us.
Section 112.3215(12), Florida Statutes, provides:
Any person, when in doubt about the applicability and interpretation of this section to himself or herself in a particular context, may submit in writing the facts of the situation to the commission with a request for an advisory opinion to establish the standard of duty. . . .
Section 112.3215(3), Florida Statutes, governing Executive Branch lobbyist registration and disclosure, states:
A person may not lobby any agency until such person has registered as a lobbyist with the commission. . . .
Chapter 34-12, F.A.C., Executive Branch Lobbyist Registration.
See Rule 34-12.175(5), F.A.C.