LOBBYING RULES IN MASSACHUSETTS: ARE YOU A LEGISLATIVE AGENT OR AN EXECUTIVE AGENT? Robert E. Cowden III Casner & Edwards, LLP 303 Congress Street Boston, MA Copyright Casner & Edwards, LLP 2010

INTRODUCTION  Different rules for different purposes:  Restrictions on lobbying under federal tax rules for section 501(c)(3) organizations  Restrictions on federal and state funding  Massachusetts “sunshine” rules – registration and reporting by lobbyists and their clients  Massachusetts rules (Massachusetts General Laws, Chapter 3, sections 39-50) are administered by the Secretary of the Commonwealth. Go to and then to the Public Records Division

RECENT AMENDMENTS  Effective date: January 1, 2010  Broader definition of lobbying – lobbying now includes certain “planning, strategizing and research”  Lower thresholds for presumption relating to “incidental” activity:  25 hours or fewer per 6-month reporting period; and  Less than $2,500 in compensation per period

LEGISLATIVE AGENT Person who  For compensation or reward  Engages in legislative lobbying that includes at least one lobbying communication by that person with a government employee

LEGISLATIVE LOBBYING  Any act to promote, oppose or influence legislation  Any act to promote, oppose or influence governor’s approval or veto of legislation  Includes acts to influence decision of municipal officer or employee if there is a “common purpose” with state-level lobbying  Includes strategizing, planning and research performed in connection with, or for use in, a communication with a government employee  Exception for responding in writing to written request for information

EXECUTIVE AGENT Person who  For compensation or reward  Engages in executive lobbying that includes at least one lobbying communication by that person with a government employee

EXECUTIVE LOBBYING  Any act to promote, oppose or influence decision of executive branch or state authority as to legislation or a standard, rate, rule or regulation  Also, communication with certain government employees as to a matter of policy or procurement  Similar rule as to lobbying of municipal officer or employee when there is a “common purpose” with state-level lobbying  Similar rule as to “strategizing, planning and research”  Similar exception for responding in writing to a written request for information

INCIDENTAL TEST  The terms “legislative agent” and “executive agent” apply to any person who as part of his or her “regular and usual” business and professional activities and not merely “incidental” thereto engages in lobbying  Whether additional compensation is paid is not determinative

25 HOURS/$2,500 PRESUMPTION  Presumption that activity is incidental if for any 6-month reporting period:  No more than 25 hours of lobbying activity AND  Person receives less than $2,500  Distinct tests for each type of lobbying activity

EXCEPTIONS FOR EXECUTIVE AGENTS Eleven express exceptions, including  Requesting a meeting  Serving on an advisory board  Responding to subpoena  Making a request for action that is in writing and is a public record  Participation in a bid conference  Appeal of procurement decision

REGISTRATION  Registration and reporting are all online  Lobbyist and client must both register – the lobbyist first  December 15 deadline for annual registrations  10-day rule for registration of lobbyist’s name by client if lobbyist is engaged after the first of the year

REPORTING  Two reports per year – July 15 (for January 1 – June 30) and January 15 (for July 1 – December 31)  Agent and client both must report  Agent must include amounts paid for meals, gifts, transportation and campaign contributions, among other matters  Also, agent must report:  Each client  Bill number  Position on each bill  Compensation from each client  Direct business associations with public officials  Client’s report also must contain detailed financial information

RESTRICTIONS  For Agents:  Mandatory educational seminar  No gifts, and no meals or beverages, to public employees (exceptions for gifts to family members and gifts permitted under regulations of State Ethics Commission)  Campaign contributions limited to $200 per candidate or committee per year; no bundling  For Everyone:  No agreements for compensation contingent on outcome of lobbying

REPORTING BY ORGANIZATION WITH NO AGENT  If organization has no agent but spends more than $250 during a calendar year to promote, oppose or influence legislation or executive action, the organization must register by submitting a report (semi-annual)  Report includes itemized accounting of expenditures  Report also includes campaign expenditures and list of those who contributed $15 or more  Requirement does not apply to nonprofit organization that does not pay salary or fees to any member of the organization and spends $2,000 or less during any calendar year on lobbying activity

PENALTIES  If reports are late, penalty of $50/day; $100/day after 20 days  Secretary of Commonwealth may conduct hearing; cease and desist order; suspension; $10,000 civil penalty  Criminal or civil proceedings by Attorney General; fine of up to $10,000 or 5-year jail term

ADVISORY OPINIONS BY SECRETARY Secretary does not have rule-making authority but “shall” issue advisory opinions on request. * * * These materials have been prepared for informational purposes and do not constitute legal advice.