CEO 94-11 -- March 10, 1994

EXECUTIVE BRANCH LOBBYING

ATTORNEY REPRESENTING CLIENTS IN ADMINISTRATIVE PROCEEDINGS

BEFORE AGENCIES AND MAKING GOODWILL-TYPE EXPENDITURES

To: Mr. Mark Herron, Attorney (Tallahassee)

SUMMARY:

An attorney who represents clients in proceedings before executive branch agencies relating to the granting or denying or a permit, license, or certification, or which may result in an order imposing or recommending the imposition of disciplinary action, is not a "lobbyist" for purposes of the executive branch lobbyist registration and reporting requirements contained in Section 112.3215, Florida Statutes, and Rule Chapter 34-12, Florida Administrative Code. Therefore, where that attorney makes expenditures in the course of representing his clients, expenditures which might otherwise be for the purpose of "engendering goodwill," the making of those expenditures does not transform the attorney into a "lobbyist" with the attendant registration and reporting requirements.

QUESTION:

Are you required to register as an executive branch lobbyist and to report expenditures, where you represent clients in proceedings before executive branch agencies which may result in administrative proceedings and where you may make "goodwill" expenditures in the course of representing your clients?

Your question is answered in the negative.

Through your letter of inquiry we are advised that you are an attorney who represents a variety of clients in proceedings before executive branch agencies relating to the granting or denial of permits, licenses, and certifications. Additionally, you relate, you represent clients before agencies where the agency action may result in an order imposing or recommending the imposition of disciplinary action. In the course of representing the interests of your clients, oftentimes you seek to influence the decision of the agency prior to its grant or denial of the permit, license, or certification, or prior to its decision to impose or recommend the imposition of disciplinary action. In doing so, you may meet with agency representatives and, on occasion, have bought lunch or made other expenditures benefiting agency representatives which could be characterized as being for the purpose of engendering goodwill. If the described actions on behalf of your clients do not constitute "lobbying" for purposes of Section 112.3215, Florida Statutes, and the Commission's rules adopted pursuant thereto, you ask whether you are excused from registering as a lobbyist and reporting expenditures, notwithstanding the occasional goodwill-type expenditures you make in the course of representing your clients.

Section 112.3215(1)(d), Florida Statutes (1993), defines "lobbies" to mean

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.

However, in the statutory definition of "lobbyist," the following activity is specifically excluded:

An attorney, or any person, who represents a client in a judicial proceeding or in a formal administrative proceeding conducted pursuant to chapter 120 or any other formal hearing before an agency, board, commission, or authority of this state. [Section 112.3215(1)(e)1, Florida Statutes (1993).]

We have promulgated rules to interpret and implement the requirements of Section 112.3215, Florida Statutes. Of particular relevance to your inquiry is Rule 34-12.120, Florida Administrative Code, "Exclusions for Administrative Proceedings," and Rule 34-12.170, "Examples of Activities Not Constituting Lobbying."

Rule 34-12.120 states in pertinent part:

'Lobbyist' does not include an attorney or other person who represents a client in a formal administrative proceeding conducted pursuant to Chapter 120, F.S., or in any other formal hearing before an agency.

(1) Formal administrative proceedings conducted pursuant to Chapter 120, F.S., and other formal hearings before an agency include:

(a) Formal and informal proceedings under Section 120.57, F.S., after the filing of a petition or request for hearing which initiates the proceeding; . . .

(f) An attorney or other person representing a client who lobbies an agency regarding matters which in the future may result in an administrative proceeding described in (a) through (e) above may be a 'lobbyist' for purposes of this Chapter if he is seeking to influence the agency with respect to a decision of the agency in the area of 'policy,' as defined in Rule 34-12.020(6).

The relevant portions of Rule 34-12.170 are as follows:

As used in this Chapter, 'lobbying' activities do not include, for example: . . .

(6) Representation of a client before an agency where the agency's decision relates to the grant or denial of a permit, license, or certification, or may result in an order imposing or recommending the imposition of disciplinary action against the client.

This results from our view of what agency decisions are in the area of "policy." As expressed in Rule 34-12.020(6),

'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, such as any plan or course of action which would constitute a 'rule' as defined in Section 120.52, F.S. 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 or a license, permit, or certification or in a disciplinary action or investigation involving a person.

As a result of these statutes and rules, we are of the view that the representation of clients before executive branch agencies as described in your opinion request does not constitute "lobbying" for purposes of Section 112.3215, Florida Statutes, or Rule Chapter 34-12, Florida Administrative Code, so long as your representation of the client is directed at influencing the agency's decision regarding the particular client and is not directed at influencing the agency's decision regarding a class of persons, proceedings, or other matters as described in Rule 34-12.020(6).

The question, then, is whether the making of expenditures, including those which might otherwise constitute "engendering goodwill," transforms you into a "lobbyist" with its attendant registration and reporting obligations. It is our view that it does not. Simply stated, if you are not a "lobbyist" as that term is defined in the statutes and rules, then you do not have to register as a lobbyist and report expenditures quarterly. If you are a "lobbyist," you should register and ensure that your lobbying expenditures, including goodwill-type expenditures, are reported in accordance with the applicable law and rules.

Your question is answered accordingly. Please note that regardless of whether your activities require you to register and report under the Executive Branch Lobbyist Registration Law, the same activities may make you a "lobbyist" for purposes of the gift law contained in Section 112.3148, Florida Statutes, subject to the prohibitions and disclosures of that law.