CEO 90-5 -- January 24, 1990

EXECUTIVE BRANCH LOBBYING

APPLICATION OF EXECUTIVE BRANCH LOBBYISTS REGISTRATION ACT

TO LOCAL HEALTH COUNCILS

To: David W. Carter, Executive Director, Northwest Florida/Big Bend Health Councils (Panama City)

SUMMARY:

As members of local health councils are not compensated, they are not required to register before lobbying executive branch agencies in behalf of the councils. Staff of the local health councils are exempted pursuant to Commission Rule 34-12.170(5), F.A.C., as their services are provided pursuant to an existing contractual obligation to the agency.

QUESTION:

Are the members or staff of a local health council required to register as lobbyists pursuant to Section 112.3215, Florida Statutes?

Your question is answered in the negative.

Pursuant to Section 381.703(1), Florida Statutes, a local health council is established in each of the eleven districts of the Department of Health and Rehabilitative Services. Members of each council are named by the county commissioners within the district according to a formula prescribed in the statute. They receive no compensation for their services.

Pursuant to this statute, your health council is a private, nonprofit agency, the purpose of which is to develop and help implement a health plan. During this process the council may be required to collect data, provide education, advise the district and the Department, and assist with the certificate of need program.

Council members believe that, as part of the health planning system, they are authorized to make recommendations in their community and to the State to attain acceptable health services for the residents of their district, you advise. This may include suggesting changes in proposed rules that would affect health facilities in their district.

Under Section 112.3215(3), Florida Statutes, a person may not lobby an executive branch agency until he has registered as a lobbyist with the Commission on Ethics. "Lobbies" is defined 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." Section 112.3215(1)(b), Florida Statutes. The term "lobbyist" is defined in Section 112.3215(1)(a) to mean "a person who for compensation, remuneration, or commission, on behalf of another person, lobbies an agency or who is principally employed for governmental affairs by another person to lobby on behalf of that other person."

Interpreting this provision, Commission Rule 34-12.170, Florida Administrative Code, states that one is not lobbying when he is representing a person before an agency and "the person provides only reimbursement for actual travel, lodging, and meal expenses, rather than compensation, remuneration or a commission for the representation." Since you have advised that council members are not compensated other than through reimbursement for expenses, they need not register.

In regard to staff of the council, Section 112.3215(1)(a)2, Florida Statutes, exempts from the definition of "lobbyist" an employee of an agency acting in the normal course of his duties. As the local health council is a private corporation, the staff members cannot be said to be agency employees, even though the formation of the council is mandated by statute. Nevertheless, we do not feel that these employees would be required to register as lobbyists. Rule 34-12.170(5), F.A.C., provides that a person is not lobbying when the advice or services communicated to the agency arise out of an existing contractual obligation to the agency to render the advice or services provided. The very purpose for which the health council was formed is to render advice and services both to its district and to the Department of Health and Rehabilitative Services. There clearly is a statutory obligation for the staff to render the services and advice. In addition, you stated during a telephone conversation with our staff that the council has a contract with the Department of Health and Rehabilitative Services, and all staff actions consist of activities which are required by this contract. Therefore, we believe that staff members would not be required to register.

Accordingly, we find that neither members nor staff of the local health councils are required to register as executive branch lobbyists before undertaking the activities you have described.