Advisory Opinion NO 2011-03

QUESTION PRESENTED

Whether an expenditure made by a lobbyist in connection with a meeting or event involving an employee or family member of a public officer is required to be disclosed on lobbyist disclosure reports.

ADVISORY OPINION

The Political Law Group has requested the above opinion from the Georgia Government Transparency and Campaign Finance Commission (the “Commission”). The Political Law Group suggests that the answer to the this question is “no” based on the premise that lobbyist
disclosure requirements do not require reporting of all lobbying expenditures, but only those specifically made for the benefit of public officers. In other words, lobbying expenditures made with respect to family members and employees of public officers do not need to be reported and
disclosed. The Commission does not believe this to be the case with respect to certain expenditures that benefit the family members of public officers, but agrees with the Political Law Group with respect to expenditures made on behalf of public employees.

The Georgia Government Transparency and Campaign Finance Act (the “Act”) contains two sections that refer to expenditures made by lobbyists and the disclosure of those expenditures. Section 21-5-70(1)(A) defines what is an “Expenditure” and Section 21-5-73 outlines the disclosure requirements with respect to Expenditures. The Commission is aware, however, that there appears to be a discrepancy with respect to what the Act defines to be an Expenditure and what the Act requires to be reported and disclosed. In other words, the Act very specifically defines those items which are considered to be Expenditures, but does not require the reporting of all of those Expenditures.

Section 21-5-70(1)(A) defines an Expenditure as:

(A) a purchase, payment, distribution, loan …or anything of value made for the purpose of influencing the actions of a public officer or public employee; (B) Includes any other form of payment when such can be reasonably construed as designed to encourage or influence a public officer; (B.1) Includes reimbursement or payment of actual expenses provided to a public officer for transportation, travel, lodging, registration, food, beverages, and other activities related to attending a meeting or conference so as to permit such public officer’s participation in such meeting or conference; (D) …. Includes
food or beverage consumed at a single meal or event by a public officer or public employee or a member of the family of such public officer or public employee (§21-5-70(1)).

The entire definition of Expenditure has not been included in this Opinion.

Section 21-5-1 73(e) outlines the disclosure requirements of lobbyists. Subsection (e) states:

Reports filed by lobbyists shall be verified and shall include:

(1) A description of all expenditures, as defined in Code Section 21-5-70, or the value thereof made on behalf or for the benefit of a public officer by the lobbyist or employees of the lobbyist or by any person on whose behalf the lobbyist is registered if the lobbyist has actual knowledge of such expenditure.

As the Political Law Group correctly points out, the Act’s disclosure requirements do not appear to require disclosure of all lobbying expenditures outlined in §21-5-70(1)(A) . The language of the section states that a description of all expenditures defined in §21-5-70 should be reported,
but references only those expenditures “made on behalf of or for the benefit of a public officer by the lobbyist …”

The recipients of Expenditures, however, include individuals other than public officers. Specifically, the recipients as defined by §21-5-70(1)(A) also include family members and public employees. One might ask why the definition of expenditure was drafted to include expenses made to influence the actions of a public employee or to include food and gifts to a family member if not to report and disclose such expenditures to the public. However, the Commission
is reluctant to read additional requirements into the statute that are not specifically stated within the disclosure section. Therefore, with respect to expenditures made by lobbyists that benefit a public employee, we advise that the Act does not require the lobbyist to disclose such
expenditures with the exception of expenditures made for employees who qualify as public officers under §21-5-70(6) (such employees who qualify as public officers include individuals who have discretionary authority over the selection of a vendor which supplies goods or services to a state agency).

The Commission does believe that certain expenditures made by lobbyists with respect to family members are required to be reported. Again, §21-5-73(e) states that expenditures made on behalf of or for the benefit of public officers are required to be disclosed.

Because family members (includes only spouse and dependent children; §21-5-3(17)) are commonly owed a duty of support by the public officer, the public officer benefits and/or may be influenced when a lobbyist pays for the meals, travel expenses, entertainment, etc. of a family member. The fact that the spouse of a public officer receives a meal paid for by the lobbyist is a “benefit” to the public officer. If not for the lobbyist paying for the meal of the spouse or child, the family of a public officer would be required to do so out of their own income. The public officer receives the same benefit when the lobbyist pays for family members to travel with the public officer on a trip.

Prepared by Stacey Kalberman
April 5, 2011


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