OPINION NUMBER - 159

ADOPTED - 1995/03/24

SUBJECT -Lobbying/Gifts.

REQUESTED BY: Senators Tim Hall, Joyce Hillman, and Ron Withem, and Clerk of the Legislature Patrick O'Donnell.

QUESTION: May state senators and legislative staff engage in activities, including solicitation of funds in connection with hosting a legislative conference?

CONCLUSION

See analysis.

FACTS

In the fall of 1995 the Nebraska Legislature will be hosting the Five State Legislative Conference which will be held in the Scottsbluff/Gering area. This conference was formed in the early 1970's by the states of Montana, North Dakota, South Dakota, Wyoming, and Nebraska. The conference meets every other year and the five states take turns hosting the event. The Executive Board of the Legislative Council has authorized Nebraska's involvement in this year's conference. All legislators from the five states will be invited to attend as well as key legislative staff serving those legislators. The conference is designed to bring together legislators and staff from these geographically and economically related states to discuss issues of mutual concern. A Nebraska senator will serve as the chairman of the conference and a second Nebraska senator will serve as the vice chairman.

In hosting this conference it is expected that certain expenses will be incurred for food and drink, local transportation, and faculty. A registration fee will be used to offset some of the expenses but it is anticipated that additional money will need to be raised. Financial assistance will be sought from corporations, associations, small businesses, and political subdivisions. Certain of these entities may be lobbyists or principals of lobbyists.

You pose a number of questions pertaining to the solicitation of funds and the use of legislative staff in connection with the conference.

ANALYSIS

Section 50-402 refers to the Legislative Council. That section states in part:

It shall be the duty of the council 1) to collect information concerning the government and general welfare of the state; . . . 3) to deal with important issues of public policy and questions of statewide interests; . . . 8) . . . to employ such additional personnel as maybe needed to carry out the intent and activities of the Executive Board or the Legislature.

While the provisions of 50-402 are outside of the Nebraska Political Accountability and Disclosure Act, they do appear to provide a basis for the Legislative Council and the Legislature to host a conference such as the one described. This opinion is based upon the assumption that the Executive Board of the Legislative Council has taken some action such that the conference is an official function of the Legislature.

Section 49-1490(1) provides as follows:

A principal, lobbyist, or anyone acting on behalf of either shall not give a gift to any official or member of any official's staff in the executive or legislative branch of state government or any member of an official's immediate family. Any person who knowingly gives a gift in violation of this subsection shall be guilty of a Class III misdemeanor.

Section 49-1490(2) provides as follows:

An official or any other person on his or her behalf in the legislative or executive branch of state government or a member of such official's staff or immediate family shall not solicit or accept a gift in violation of subsection (1) of this section. Any person who knowingly solicits or accepts a gift in violation of this subsection shall guilty of a Class III misdemeanor.

Section 49-1490(3) provides in part as follows:

. . . gift shall mean a payment, subscription, advance, forbearance, or honorarium or the rendering or deposit of money, services, or anything of value, the value of which exceeds $50 in any one-month period, unless consideration of equal or greater value is received therefor. Gift shall not include: a) a campaign contribution otherwise reported as required by law; b) a commercially reasonable loan made in the ordinary course of business; c) a gift received from a member of the person's immediate family, a relative, or the spouse of any such relative; d) a breakfast, luncheon, dinner, or other refreshments consisting of food and beverage for immediate consumption; e) admissions to state regulated industries, facilities, or events; or f) the occasional provision of transportation within the State of Nebraska to an officeholder.

Section 49-1434(1) defines the term principal as "a person who authorizes a lobbyist to lobby on behalf of that principal." Section 49-1434(2) defines the term lobbyist as "a person who is authorized to lobby on behalf of a principal and shall include an officer, agent, attorney, or employee of the principal whose regular duties include lobbying." The term lobbying is defined in 49-1433 as "the practice of promoting or opposing for another person . . . the introduction or enactment of legislation or resolutions before the legislature or the committees or members thereof, and shall also include the practice of promoting or opposing executive approval of legislation or resolutions."

An individual, corporation, association, business, or other entity contributing money so that a conference can be held for legislators, including Nebraska legislators, is providing something of value or a gift as defined in 49-1490(3). Nonlobbyists, nonprincipals, and those who are not acting on behalf of lobbyists or principals are not restricted on the value of gifts which may be provided to state senators and legislative staffers. However, lobbyists, principals, and anyone acting on behalf of either are subject to the $50 per month limitation. There are several possible approaches to compliance with the provisions of 49-1490.

An exception to the gift limitation of $50 in a one month period is providing food and drink for immediate consumption. Pursuant to this exception, a lobbyist, principal, or someone acting on behalf of either could pay for all of the food and all of the drink at a dinner, luncheon, breakfast, or reception. The contributor would need to be present at the event.

At conferences there is often a need for local transportation. This could be transportation to and from an airport or transportation in connection with a tour. An exception to the gift limitation permits lobbyists and principals to provide occasional transportation around the state to Nebraska officeholders. Therefore, a lobbyist, principal, or someone acting on behalf of either could agree to pay the cost of local transportation within the state to Nebraska officeholders without being subject to the gift limitation. We note that the transportation exemption to the gift limitation does not apply to legislative staff or immediate family members of the officeholder. However, transportation under these circumstances tends to be provided by bus or van such that no individual is likely to incur more than $50 in benefit.

The gift limitation of $50 is a per person limitation. That is, a specific lobbyist or specific principal may give a gift with a value of $50 multiplied by the number of people who would benefit from the gift. If the conference is to be attended by twenty Nebraska state senators and twenty Nebraska legislative staffers, a lobbyist or principal could contribute at least $2,000. That is, the number of attendees times the $50 gift limitation. However, any donation by a lobbyist or principal will benefit more than simply the Nebraska legislators and staffers. It will benefit the legislators and staffers from other states as well. Therefore, it is our position that a lobbyist or principal may give an amount equal to $50 multiplied times the number of attendees.

In developing the formula of $50 times the number of attendees we acknowledge that the formula poses certain problems. Every conference has its late registrants and every conference has its no shows. Typically the actual number of those attending is not known until near the completion of the conference. It is our recommendation that if this formula is to be used in soliciting funds from lobbyists and principals, the number of attendees be very conservatively estimated. A potential donor who is lobbyist or principal should be specifically informed as to the limit on his or her contribution.

With the foregoing in mind, we turn now to your specific questions.

Question: Can a senator solicit contributions?

Answer: Yes, subject to the limitations on contributions by lobbyists, principals, or anyone acting on behalf of either. In addition, a state senator may not solicit or accept something of value based upon an understanding or agreement that his or her official action or judgment would be influenced thereby. See 49-14,101.

Question: Can a legislative staff person solicit contributions?

Answer: Yes, with the approval of the Executive Board of the Legislative Council. The Legislative Council has the authority to determine how its staff shall be used in connection with an official legislative function.

Question: Is it permissible to establish a separate checking account for depositing funds and writing checks for expenses associated with hosting the event?

Answer: A determination of the authority of the state legislature to establish a separate checking account is beyond the jurisdiction of the Nebraska Accountability and Disclosure Commission. Whatever lawful process is used for the collection of funds, however, should meet certain criteria. These include detailed records of the names and addresses of the contributors as well as the amounts of the contributions. It should also include detailed records of the names and addresses of the recipients of the funds and the goods or services provided by the recipient or vendor. Finally, detailed records should include the names and addresses of the attendees at the conference who ultimately benefitted from the contributions.

Question: Can legislative staff be used to plan and staff the conference?

Answer: Again, this is a matter for the Legislative Council to decide.