CEO 99-4 -- March 17, 1999

 

EXECUTIVE BRANCH LOBBYING

 

PERSON CONTRACTING WITH LOCAL GOVERNMENT ENTITIES

TO ASSIST THEM IN SECURING STATE GRANTS

FOR PARK AND RECREATIONAL PROJECTS

 

To:      Mark Herron, Attorney at Law (Tallahassee)

 

SUMMARY:

 

A person who contracts with local government entities to assist them in securing park and recreational capital improvement grants from the State is not required to register as an executive branch lobbyist under Section 112.3215, Florida Statutes, so long as his activities do not involve the areas of Apolicy@ or Aprocurement,@ subject matters essential to the activity of executive branch Alobbying.@

 

QUESTION:

 

Is a person who assists local government entities in securing Florida Recreation Development Assistance Program (FRDAP) grants required to register as an executive branch lobbyist pursuant to Section 112.3215, Florida Statutes?

 

Under the circumstances presented in your inquiry, your question is answered in the negative.

 

By your client=s letter of inquiry and by additional information provided by you, we are advised that Stan Hemphill (Aconsultant@) is sole proprietor of a firm that assists local governments plan and finance park and recreational capital improvement projects through Florida Recreation Development Assistance Program (AFRDAP@) grants.  Specifically, you advise that Section 375.075, Florida Statutes, authorizes the Department of Environmental Protection (ADEP@) to establish the FRDAP to provide grants to qualified local government entities to acquire or develop lands for public outdoor recreation purposes; that the DEP is directed by statute to adopt by rule procedures to govern the FRDAP, including Aa competitive project selection process designed to maximize the outdoor recreation benefit to the public@; and that the procedures thus adopted provide, inter alia, that grant applications shall be ranked on a priority list according to point scores.

In particular, regarding the consultant, we are advised that he prepares and submits applications for grants to the FRDAP; that prior to an application being submitted, he may confer with FRDAP staff concerning the funding cycle, the application form, and the form=s instructions; that he may attend FRDAP workshops concerning the funding cycle and requirements for participating in the program; and that after the application is submitted, he responds to any questions or concerns that FRDAP staff may have with respect to an application which has been submitted in behalf of a local government entity.  Further, you emphasize that the consultant does not seek to influence or alter the priority given to the project by FRDAP staff, except through the application submitted in behalf of the local government.[1]

Section 112.3215(3), Florida Statutes, requires a person who lobbies executive branch agencies (which include, inter alia, DEP/FRDAP staff) to register as a lobbyist with the Commission on Ethics, as a condition precedent to lobbying.  Sections 112.3215(1)(d) and 112.3215(1)(e), Florida Statutes, define Alobbies@ and Alobbyist@ in relevant part as follows, respectively:

 

>Lobbies= means 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. . . .

 

>Lobbyist= means a person who is employed and receives payment, or who contracts for economic consideration, for the purpose of lobbying, or a person who is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of that other person or governmental entity. . . .

 

From these definitions, it is apparent that the consultant must register only if his efforts to influence the DEP/FRDAP are in the areas of policy or procurement.[2]  While neither Apolicy@ nor Aprocurement@ is defined in the executive branch lobbyist statute, these terms are defined by 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, 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 of a license, permit, or certification or in a disciplinary action or investigation involving a person. [Rule 34-12.020(6), F.A.C.]

 

>Procurement= means the purchase or acquisition of any property, interest in property, or services by an agency. [Rule 34-12.020(8), F.A.C.]

 

We find that the consultant=s efforts to secure FRDAP grants for local government entities do not involve areas of Apolicy@ or Aprocurement@ and thus that he is not required to register as an executive branch lobbyist.  The consultant=s activities are analogous to conduct which we, by examples contained in our executive branch lobbyist registration rules, have not deemed to constitute Alobbying.@  The consultant=s participation at grant training meetings held by FRDAP staff after a grant funding cycle and application forms and instructions have been established is analogous to A[p]articipation at a bid conference held by an agency after bid specifications have been set and announced by the agency@ [see Rule 34-12.170(1), F.A.C.]; his submission of a grant application is analogous to A[t]he mere submission of a bid or proposal in response to an agency=s solicitation of bids or request for proposals@ [see Rule 34-12.170(2), F.A.C.]; his request for information about FRDAP grant program procedures and forms is consistent with A[a] request for information about an agency=s procedures, budget, budget proposal, programs, or other requirements in behalf of another@ [see Rule 34-12.170(3), F.A.C.]; and his provision of information or communication with FRDAP staff in response to their request for additional or clarifying information about a grant application or any other required document is no different than an appearance Abefore an agency and communications with an agency which are initiated by the agency=s request, such as a response to an agency=s request for information . . . .@ [see Rule 34-12.170(4), F.A.C.].[3]

Accordingly, under the factual representations made to us, we find that the person is not required to register as an executive branch lobbyist under Section 112.3215, Florida Statutes.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 12, 1999 and RENDERED this 16th day of March, 1999.

 

 

__________________________

Charles A. Stampelos

Chair


[1]Further, you advise that in addition to grants for park and recreational projects funded through the regular FRDAP procedures, the Legislature has funded projects through proviso language in the general appropriations act which are subject to additional procedures and requirements and that the consultant submitted all required application forms and other documentation necessary to secure the grant with respect to five projects.

[2]It is not necessary for us to determine whether the consultant is Aattempting to obtain the goodwill of an agency official or employee,@ another prong of the definition of Alobbies,@ inasmuch as the material facts of your opinion request neither address nor indicate that the consultant has made or proposes to make an expenditure for the personal benefit of an agency official or employee.  See Rule 34-12.180(1), F.A.C.

[3]In addition, you advise that the consultant=s activities do not involve the purchase of land by the State; and you advise that while a grant application priority list is established by FRDAP staff based on the criteria set forth in Rule 62D-5.055(7) and Rule 62D-5.057, F.A.C., the consultant does not seek to influence or alter the priority given to a project by FRDAP staff.